Earlier this month, Braves franchise building block Ozzie Albies agreed to an eyebrow-raising extension that was widely considered to be among the most team-friendly in recent baseball history.

There was already speculation that the deteriorating state of free agency appeared to be incentivizing extensions, but Albies’ deal was shocking even given those concerns. Veteran baseball scribe Jeff Passan went so far as to say that the deal was being considered in major league circles as “among the worst ever for a player.” That leads to a number of uncomfortable questions about how these deals are to be handled in the future – by players, by the league, and by the Major League Baseball Players’ Association.

Let’s start with Albies’ representation, an agency called SportsMeter. According to MLB Trade Rumors’ Agency Database, Albies is among the agency’s more marquee clients, with the firm also representing Craig Kimbrel, Nicholas Castellanos, and Francisco Lindor, among others. (According to some reports, SportsMeter also represents Cleveland ace Corey Kluber.)

SportsMeter hasn’t had a great offseason. Not only did they negotiate the much-maligned Albies deal, but they have been unable to broker a contract for their biggest pitcher client, Kimbrel, despite entering the offseason with dreams of a nine-figure contract. That’s led to some speculation from former Brave Eric O’Flaherty that the Albies deal was part of an effort to land a deal for Kimbrel with the savings. Other players certainly haven’t been shy in expressing their feelings about it. Castellanos, who is headed for free agency, may have had similar feelings when he switched his representation to Scott Boras last week. Other baseball writers like Passan and Evan Altman have suggested that SportsMeter may have negotiated the deal now so as to obtain a commission before Albies decided to sign with a bigger agency. Read the rest of this entry »

The best rivalry in baseball right now might not be the Yankees versus the Red Sox, or the Dodgers against the Giants. Instead, it might be the one between the Orioles and the Nationals, a feud that has landed in multiple courtrooms and has been literally litigated almost non-stop for over seven years.

The dispute arises from the teams’ joint ownership of the Mid-Atlantic Sports Network (MASN), though it also seems to have been fueled by what appears to be genuine antipathy from Orioles’ owner Peter Angelos for his team’s southern rival. Back in 2004, when the Montreal Expos were about to move to the District of Columbia, Angelos “went on Baltimore radio station WBAL-AM and pronounced that ‘there are no real baseball fans in D.C.'” Angelos was later the sole dissenting vote against the Nationals’ move, and given territorial rights disputes, having the Orioles on board became a matter of some necessity. So the two teams “worked out a deal whereby the Orioles would hold a majority partnership profit interest in MASN and get to telecast Nationals games at a substantial discount from 2005 to 2011. After that, MASN would be obligated to pay the Nationals ‘fair market value.'”

How Orioles-friendly was that deal?

When MASN was created to broadcast Orioles and Nationals games in the regional territory that once solely belonged to the Orioles, the Orioles owned 90 percent of the network and the Nationals’ stake would increase by 1 percent each year until 2032, when it reached 33 percent.

Despite the deal, which the Sports Business Daily called “one of the most lopsided deals in sports TV history,” Angelos still voted against the Expos’ move to Washington, D.C. And since that deal was struck, the Orioles have resisted MASN’s obligation to pay the Nationals anything close to “fair market value” as required by the contract for Washington’s broadcast rights. Remember, the Orioles still own better than 70% of the network, so they control how much the network pays. Read the rest of this entry »

Over the course of the last two painfully slow offseasons, baseball fans, agents, and writers have speculated about the possibility that collusion might be responsible. We aren’t going to talk about that today. Instead, we’re going to talk about the report from Marc Carig late last month about Major League Baseball awarding a prize for the team most successful in suppressing arbitration salaries.

The​ Belt​ changes hands​ shortly after season’s end,​ in​ a crowded​ conference room at a luxury resort, where delegates​ from every MLB team​ have​​ been summoned for a symposium on arbitration. For three hours, they will work together at the direction of the league to set recommendations, which teams will use in negotiations with their players. It’s a thankless job. So before the meeting adjourns, they’ll celebrate an unsung hero in this battle over dollars. The ceremony ends with the presentation of a replica championship belt, awarded by the league to the team that did most to “achieve the goals set by the industry.” In other words: The team that did the most to keep salaries down in arbitration…

…In a statement, Major League Baseball acknowledged The Belt as “an informal recognition of those club’s salary arbitration departments that did the best.”

Now, this may seem like an insignificant token – after all, a plastic belt awarded as a trophy is in most contexts rather innocuous. But this is more complicated than it appears at first glance.

Collusion is a violation of the Collective Bargaining Agreement, as we discussed in February. The word “collusion” doesn’t appear in the Major League Rules, and it isn’t in the Collective Bargaining Agreement either. However, the Collective Bargaining Agreement does say in Article XX – governing the Reserve System – that rights under the CBA are individual, not collective.

The utilization or non-utilization of rights under Article XIX(A)(2) and Article XX is an individual matter to be determined solely by each Player and each Club for his or its own benefit. Players shall not act in concert with other Players and Clubs shall not act in concert with other Clubs.

Let’s refresh our recollections on what collusion is in the context of major league baseball, beginning with the preeminent legal definition of collusion from Darren Heitner and Jillian Postal, who wrote a particularly excellent note on the subject for Harvard Law School’s Journal of Sports and Entertainment Law.

Collusion at its core is collective action that restricts competition. Under federal law, particularly the Sherman Anti-Trust Act (the “Sherman Act”), collusion is prohibited; however, because of labor exemptions, what constitutes collusive, prohibited behavior in specific sports leagues varies based on the league’s negotiated collective bargaining agreement (“CBA”).

And, as Marc Edelman explained for Forbes:

Although collusion under Baseball’s collective bargaining agreement is not identical to collusion under U.S. antitrust laws, the language and case precedence track similarly. Under antitrust law, mere parallel behavior among competitors is not enough to trigger a violation. But, parallel behavior along with a plus factor is sufficient.

Put another way, the mere fact that everyone is acting in the same way isn’t enough on its own to trigger a violation of the CBA’s collusion language. That’s doubly true in arbitration, because as we’ve discussed before, MLB teams are allowed to coordinate their arbitration filings. Per Jeff Passan:

While MLB works diligently and impressively to coordinate the arbitration targets of its 30 teams — this behavior is sanctioned under the collective bargaining agreement and not considered collusive — agents occasionally make far-under-target settlements. The effect, in a comparison-based system, is devastating: A bad settlement can linger and depress prices at a particular position for years.

But coordination of filings isn’t all that’s going on. As Carig explains:

Those versed in arbitration describe efforts that encourage teams to hold the line in negotiations, even when differences are relatively small, because the results will eventually have a larger impact in setting future comparables. In essence, it is worth fighting for pennies, because even pennies pile up over time. The labor relations department positioned itself as a central resource. It made data available for teams to more easily find comps to be used in negotiations. It staged mock arbitration sessions. It encouraged frequent discussion about the process. As a result, teams as a group have improved their approach to arbitration.

Eventually, the league began using its internal information to promote its own valuations for all players eligible for arbitration. These are still, technically, recommendations. But according to several people familiar with the process, they have increasingly been treated as hard guidelines. It is understood that teams are to settle at or below the league’s recs.

Now, a lot of this is above-board. Coordination of arbitration figures is allowed by Section 2 of the part of the Collective Bargaining Agreement that governs salary arbitration, which states that, “It shall be the responsibility of the Association prior to the Exchange Date to obtain the salary figure from the Player, and the LRD shall have a similar responsibility to obtain the Club’s figure.” That “LRD” is the league’s Labor Relations Department. So this clause, by its plain language, allows for the LRD to talk to the club about what its filing is going to be – after all, how else would the LRD obtain the figure? In fact, as attorney Michael D’Ambrosio explained, it’s the LRD that submits the team’s proposed salary figure. The CBA also allows for LRD to select arbitrators on behalf of teams, and designates LRD as the recipient of arbitration awards along with the team, the player, and the union. That’s because the LRD is also tasked by Major League Baseball with “look[ing] at results across cases to analyze the consistency of outcomes.”

In short, there’s nothing wrong with LRD being involved in the salary arbitration process. Major League Baseball is even right now hiring for an attorney to assist teams in preparing for and presenting arbitration cases. Holding mock arbitrations? Providing data? Facilitating communication? All fine. The CBA bars none of those things. The CBA doesn’t even prohibit awarding a schlocky plastic belt for stupid reasons, but there’s no law against stupid behavior. What the CBA does prohibit is the LRD stepping out of its role as a helper and into the team’s role as a party.

Here, the key fact isn’t the piece of plastic, though that’s certainly the most eye-catching. Instead, the most important fact is Carig’s reporting that MLB’s recommendations are being treated as “hard guidelines.”  Per Carig:

“The LRD is definitely pushing a narrative that recs are concrete. And going above the rec is a substantially bad thing to do because it will mess up this entire salary structure.”

Remember, the CBA says that the LRD can help teams in arbitration. What the CBA doesn’t allow is for LRD to make final decisions. LRD can help a team develop a submission, but it can’t tell a team what its submission figure should be. It can help a team prepare for a hearing, but it can’t tell the team it must have that hearing instead of settling. It’s a subtle but important distinction. Think of LRD as a person sitting next to you in a car. It can read you a map. It can read you the directions from your smartphone. It can tell you what direction you’re driving in. But it can’t take over the steering wheel or force you to slam on the brakes. The question then is whether meetings like those Carig reported mean that LRD is the driver or the passenger:

For the league, it begins in spring training, when they hold State of the Union-style debriefings — two in Arizona and two in Florida — to evaluate the just-completed arbitration cycle. Attendees are presented with a 90-page booklet filled with data such as each club’s adherence to the league’s recommendations, the timing of all settlements, and a preview of the work to come. This spring, it also included a section of media quotes regarding arbitration. One in particular was highlighted in red, [agent Jeff] Berry’s line about “successfully stagnated arb salaries.” To this point, the executive leading the session offered a confirmation, and encouraging words about the progress being made.

If LRD really is stepping over that line – taking control of the arbitration process instead of merely providing assistance – we would expect to see some empirical data on that point. Notably, Deadspin found that “Nearly two-thirds of settlements have come in at or below the labor relations department’s ‘recommendations,’ up from less than half a few years ago.” At the same time, Carig noted that “there are no tangible repercussions for teams that break ranks.” And though Carig also added that “some teams find themselves feeling compelled to go along with the league’s plan, and fighting with their own players in the process[,]” he doesn’t say how.

Unfortunately, the CBA never actually specifies the evidentiary showing necessary to prove collusion. Per Heitner and Postal, “The Basic Agreement does not provide what burden needs to be met in order to prevail in this type of grievance.” Nevertheless, we can use what we know about antitrust law to make some educated guesses.

Courts evaluate most antitrust claims under a “rule of reason,” which requires the plaintiff to plead and prove that defendants with market power have engaged in anticompetitive conduct. To conclude that a practice is “reasonable” means that it survives antitrust scrutiny.

(Because the standards are similar, we can look at what antitrust law considers collusive or anticompetitive behavior in interpreting MLB’s own collusion clause; this does not mean that MLB isn’t subject to an anti-trust exemption, which is a different issue entirely.)

Why a reasonableness standard? Because, theoretically, everything is a restraint on trade, and to an extent, everything is collusive, too. Every trade between teams is a coordinated attempt by those teams to set the value of players. Trading James Paxton for Justus Sheffield (and other prospects) means that James Paxton is worth Justus Sheffield (and other prospects), and future trades will use that as a referent. Exchanging J.T. Realmuto for Sixto Sanchez and Jorge Alfaro means that the Phillies and Marlins, two enterprises that are supposed to be in competition with one another, have fixed the price of a J.T. Realmuto at a Sixto Sanchez and a Jorge Alfaro. In a sense, those trades are themselves anti-competitive, because it means that the value of similar players has been set, and the players who were traded have been removed from the market. But no one would say those trades were an unreasonable restraint on competition. The Red Sox can’t file a grievance because the Yankees and Marlins “colluded” on Giancarlo Stanton.

It’s for these reasons that subjective intent isn’t necessarily a good indicator. As such, we aren’t going to discuss whether or not the LRD and teams think they’re colluding. For example, the Supreme Court said in a case called Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Oklahoma that when we’re looking at whether something is unlawfully collusive, we can base our conclusion “either (1) on the nature or character of the contracts, or (2) on surrounding circumstances giving rise to the inference or presumption that they were intended to restrain trade and enhance prices.”

Legal test aside, there’s a factual problem with using subjective intent: we don’t always know what other people are thinking. For all we know, the Giants’ arbitration team does its work while thinking about Chicago deep-dish pizza. So instead, we’ll follow a rule from a 1913 case called United States v. Patten that we don’t need to prove specific intent: “by purposely engaging in a conspiracy which necessarily and directly produces the [anticompetitive] result which the statute is designed to prevent, they are, in legal contemplation, chargeable with intending that result.” (It also is possible to do something so anti-competitive that the law presumes the action to be unlawfully collusive, but that’s unlikely to be the case when we’re talking about a piece of plastic.)

To understand why all of this matters, it’s helpful to look at baseball’s collusion cases from the 1980s.

After the 1985 season, at the urging of Commissioner Peter Ueberroth, owners came to an unwritten agreement not to compete with each other over the services of free agents, and to reduce significantly the length of contracts they would offer. As a result, free agents were forced to re-sign with their original teams for little or no pay raise, unless their team indicated that it was not interested in their services.

The union’s grievance eventually resulted in a $280 million arbitration award in favor of the players, and an award of free agency for seven players. In some ways, the similarities between the collusion of the 1980s and today are striking. For example, that “unwritten agreement” mentioned above was couched in terms of fiscal responsibility and avoiding long-term contracts, rhetoric that would be familiar to anyone who follows a front office today. But then, the owners went further than that.

Then at the Winter Meetings in San Diego that winter [1985-86], the idea of “fiscal responsibility” was preached to ownership. A list of the 62 players who filed for free agency was circulated to all teams and a message was sent to avoid the free agent market until a player was “released” by their former club, meaning a team would have to make it public that a player no longer fit in their plans. If all teams participated in the plan, the free agent market would no longer be free, but it would be controlled by the teams.

That’s the part that was found to be collusive by an arbitrator. What does this have to do with a plastic wrestling belt? Take a look at what then-MLB Commissioner Peter Ueberroth said to owners ahead of the 1985-86 offseason.

“If I sat each one of you down in front of a red button and a black button and I said, ‘Push the red button, and you’d win the World Series but lose $10 million; push the black button, and you would have a $4 million profit, and you’d finish in the middle,’ you are so damned dumb, most of you would push the red button. Look in the mirror and go out and spend big if you want; don’t go out there whining that someone made you do it.”

In closing, Ueberroth told the owners: “I know and you know what’s wrong. You are smart businessmen. You all agree we have a problem. Go solve it.”

That’s a directive from the commissioner of baseball to not spend on free agents. As soon as Ueberroth made this statement, what could have been passed off as benign instantly became legally something more sinister. That we now have sources implying that LRD is dictating salary arbitration submissions and strategies, all for a uniform purpose, does potentially suggest a situation with at least some parallels to the 1980s.

That said, there are a number of significant differences between Ueberroth’s speech and this plastic wrestling belt. For one thing, Ueberroth gave a de facto instruction. As far as we know, no one has given a similar speech regarding arbitration. Even the comments regarding “progress” made in “stagnating arbitration salaries” aren’t in and of themselves damning; the comments weren’t tied to team revenues the way Ueberroth’s were, and didn’t, in and of themselves, suggest an instruction or implied agreement. Moreover, even assuming that all teams agreed that arbitration salaries should be lowered to improve profits, complimenting those teams on having already done so doesn’t mean that those efforts were collusive from the beginning.

So while the MLBPA might have new grist for a collusion grievance based on Carig’s reporting, we’re a long way from the union being able to prove such a case. Proving collusion from a legal perspective is very difficult hard. For example, Barry Bonds couldn’t find a job after posting a 157 wRC+ and .276/.480/.565 triple-slash with a BB% of 27.7% in 2007. He lost a collusion grievance in 2015, with one well-known labor union attorney noting that “I don’t believe that there is sufficient evidence, at least not public evidence, that there was a concerted effort to blackball him. I would be very surprised to see him prevail in this case.” That’s despite the fact that several well-known labor attorneys continue to think Bonds’ grievance had merit.

That said, the ramifications of this development are potentially significant beyond a legal case. First, this puts the league’s recent concession regarding a 26th roster spot in an entirely new light, particularly if the league knew ahead of time that this was about to break. Second, this changes the dynamic between the league and union from that of a potential thaw in relations to being on the precipice of a possible work stoppage. One veteran told Carig he was “ready to strike tomorrow.” Players across the league reacted similarly.

Astros ace right-hander Gerrit Cole:

We understand business, but if you were looking for a way to antagonize players, this would be a great way to do it,” Cole told The Chronicle on Saturday. “If it’s not intentional, it certainly is a pretty fascinating move by them because I don’t think there’s one player in this room that’s worked hard for his salary through arbitration or gone through the process and taken it seriously like I have or Collin [McHugh] has that really wants to kind of be treated with a lack of respect.”

An MLBPA spokesperson referred me to Executive Director Tony Clark’s official statement:

Major League Baseball did not respond to my request for comment.

We can’t say with any certainty whether MLB’s actions are legally collusive, nor whether the MLBPA would have a viable claim based on these facts. But as reported, LRD’s actions suggest that they may have gone beyond the role the Collective Bargaining Agreement defines for them in the arbitration process. How the union chooses to react to these facts remains to be seen, but they could constitute a significant development in the game’s ongoing labor conflict, and could deepen the rift between the union and MLB.

By far the best part of writing for FanGraphs is you, our readers. That’s not just because if you didn’t exist my words would simply be shouted into the void and I’d be talking to myself. Over the past year, you’ve sent me dozens of really thoughtful questions about the intersection of baseball and the law, and the fast pace of current baseball events (and my day job) has meant I haven’t been able to respond to half as many as I would have liked. So we’re starting this feature to provide a place where you can get your baseball law questions answered. If you have a question for the mailbag, go ahead and hit me up on Twitter @Ring_Sheryl, or email me at Sheryl@sherylringlaw.com. A couple of quick disclaimers: these are questions about general baseball concerns only; I’m not going to give you legal advice or tell you how to handle your own personal legal issues. Also, your questions might be condensed or rephrased for space purposes. We’ll do this as often as the question volume allows and necessitates. Thank you in advance for your questions!

Jeremy asked: Hi Sheryl. I read your article a while back about the hypotheticals of giving Mike Trout a lifetime contract. Regarding California law, does this mean that the Dodgers (for example) couldn’t offer a contract to Bryce Harper that’s longer than eight years (if they wanted to)?

Mike Trout just signed a big extension with the Angels that will guarantee the future Hall of Famer $430 million over the next twelve years. Remember, however, as Nathaniel Grow explained a couple of years agom, California, like many states, has a law which caps the length of employment contracts.

A relatively obscure provision under California law — specifically, Section 2855 of the California Labor Code — limits all personal services contracts (i.e., employment contracts) in the state to a maximum length of seven years. In other words, this means that if an individual were to sign an employment contract in California lasting eight or more years, then at the conclusion of the seventh year the employee would be free to choose to either continue to honor the agreement, or else opt out and seek employment elsewhere.

As we discussed before, most states (with Illinois being the most notable exception) include either a statute or common law doctrine barring lifetime contracts, though not all include a requirement that the contract be capped at a specific number of years. Does this kind of law have an impact on the offer being made by the team?

The answer is actually pretty straightforward, and we can use Trout’s deal as an example. As Nathaniel explained,

Section 2855 would allow a player to opt-out of a contract after year four of a six-year contract extension, so long as he has been employed by the team for a total of seven or more years. Because of this precedent, some California companies require their employees to spend at least one day “unemployed” – i.e., not under contract with the company – every seven years in order to avoid the application of Section 2855.

What does that mean? The Angels’ contract is still legally binding. Section 2855 is simply an additional term of the contract implied by law, and creates an opt-out by operation of law. In other words, when the Angels offered the twelve-year contract extension to Trout, the law simply added another term not written down: that of Trout’s right to opt out after seven years. This is important, because a number of media outlets reported the contract had no opt-outs. But that’s not entirely true – California law allows Trout to opt out after seven years. Notably, the same is true of Manny Machado’s deal; he, too, can opt out after year seven. But it is not, notably, true for Bryce Harper – Pennsylvania law allows for employment contracts of any definite term.

Waldy asks: What happens if a player collides with an umpire during a play? Is it considered interference?

The official Major League Rules discuss umpire interference in Rule 6.01(f):

If a thrown ball accidentally touches a base coach, or a pitched or thrown ball touches an umpire, the ball is alive and in play. However, if the coach interferes with a thrown ball, the runner is out.

This doesn’t cover Waldy’s exact hypothetical, but you’ll notice it also doesn’t mention what happens if a batted ball collides with an umpire. For that, we need Rule 5.05(f)(4), which gives a batter an automatic hit where “[a] fair ball touches an umpire or a runner on fair territory before touching a fielder. If a fair ball touches an umpire after having passed a fielder other than the pitcher, or having touched a fielder, including the pitcher, the ball is in play.”

But neither of these Rules prohibit an umpire from colliding with a player. In fact, in the Comment to Rule 6.01(f), that scenario isn’t even mentioned, except in the context of catchers throwing to bases:

Umpire’s interference occurs (1) when a plate umpire hinders, impedes or prevents a catcher’s throw attempting to prevent a stolen base or retire a runner on a pick-off play; or (2) when a fair ball touches an umpire on fair territory before passing a fielder.  Umpire interference may also occur when an umpire interferes with a catcher returning the ball to the pitcher.

Generally speaking, that means that an umpire does not commit interference by making contact with a player other than the catcher. So if an outfielder or infielder collides with an umpire while trying to make a play, and the ball drops, the play continues even if the umpire was at fault.

DJ Asks: Are there any independent audits of salary arbitrations in MLB to make sure the arbitrators follow the rules?

In a word, no. Now, under the Collective Bargaining Agreement, the MLB Players’ Association has the right to audit “any particular transaction” of a team. If we give the broadest possible meaning to the term “transaction,” we could argue that this language includes arbitrations, which in theory would give the MLBPA audit rights of arbitration proceedings. Now, this is a pretty stretched interpretation; under the CBA, a “transaction” is an instance in which a player signs a contract with a team, or two teams make a trade, or a team is sold. So an arbitration isn’t so much a “transaction” as it is a device meant for conflict resolution. And as far as I can tell, even if the MLBPA believes it has audit powers over arbitrations, it has not – at least publicly – exercised those audit rights. And the CBA is explicit that arbitration awards are confidential.

 There shall be no release of the arbitration award by the arbitration panel except to the Club, the Player, the Association and the LRD. The panel chair shall initially inform the Association and the LRD of the award only and not how the panel members voted. The panel chair shall disclose to the Association and the LRD the individual votes of the panel members on each March 15 following the February hearings.

Although we know that teams have individual audits conducted on their own financial data, it doesn’t appear that those audits include arbitration results. And because the arbitrators don’t issue written findings, the result is that we don’t really know how or why an arbitrator makes a particular decision. That’s a feature of the system, not a bug, designed to protect the sanctity of the process. Whether or not it’s a good idea I leave for you to decide.

Late Friday, news broke that San Francisco Giants Chief Executive Officer Larry Baer had engaged in a physical altercation with his wife, Pam, during a public argument, which was caught on video.

Giants CEO Larry Baer pulled his wife out of a chair and caused her to fall to the ground in a San Francisco plaza on Friday morning, an incident captured on video by a witness and under investigation by city police.

The video shows Baer stepping over his wife, Pam, as she sits in a chair in the plaza in Hayes Valley before noon. She screams, “Oh, my God, no, help!” as Baer appears to try to grab a phone out of her right hand.

You can see that video here; we’re not going to embed it due to its disturbing nature. Not long after the incident was initially reported, Baer released a statement purporting to clarify the events shown on video.

Larry Baer told The Chronicle in an interview, “My wife and I had an unfortunate public argument related to a family member and she had an injured foot and she fell off her chair in the course of the argument. The matter is resolved. It was a squabble over a cell phone. Obviously, it’s embarrassing.”

Later Friday, the pair issued a joint statement through the Giants: “Regrettably, today we had a heated argument in public over a family matter. We are deeply embarrassed by the situation and have resolved the issue.”

After a public backlash, however, Baer issued an additional statement apologizing for his conduct.

Pam Baer issued a statement of her own.

It is worth noting that Pam’s description of events does not fully match those depicted in the video; she does not, for instance, mention yelling for help.

Today, the Giants’ Board of Directors released a statement noting that Baer has asked to take away from the team.

Ordinarily, these events, unfortunate though they are, wouldn’t be the province of FanGraphs. However, Baer’s status as Chief Executive Officer of the Giants means that there could be real repercussions for him and the team as a result of his conduct. Baer was appointed by the team’s owners to oversee its operations; he actually helped to constitute the team’s current ownership group, and owns a small stake himself. He is also the Giants’ designated “control person,” and attends league ownership meetings on their behalf. The control person is the face of the franchise to Major League Baseball; they’re “accountable to MLB for the operation of the team and for its compliance with the rules of baseball.” In other words, they’re the member of the ownership group the team designates as the person in charge of its operations.

As a result, Baer is subject to a policy substantially similar to the Joint Domestic Violence, Sexual Assault, and Child Abuse policy found in the Major League Baseball Collective Bargaining Agreement, which requires parallel prohibitions under a separate policy for non-player employees.. Article X of the Joint Policy (you can find it on page 325) says this (emphasis mine):

The Parties agree that Major League Baseball, its affiliated businesses, every Club and the Players Association shall institute Domestic Violence, Sexual Assault and Child Abuse Policies that are comparable both in terms of scope and discipline for their respective employees, managers, executives, and owners. The cost of implementing and administering these comparable policies will be the responsibility of the individual organization.

In other words, we can reasonably expect that Baer is covered by a policy that contains approximately the same prohibitions, and approximately the same discipline, as the Joint Policy. And we can also expect that this policy is administered at least in part by Major League Baseball, which has already begun an investigation. Indeed, Baer appears to have the ignominious distinction of being the first non-player investigated under the league’s domestic violence policy.

So what can we expect in terms of discipline for Baer? Craig Calcaterra took a look at this, but his analysis was performed in the context of discipline for owners. The problem is that while Baer does own a small stake in the team, he also works for the team in an employee capacity as a representative of the owners. So the relevant question is what power Commissioner Rob Manfred has to discipline Baer and the Giants for this sort of conduct, not just as an owner, but as an employee as well.

As far as disciplining team employees goes, things are actually fairly straightforward. The Major League Rules leave little ambiguity that teams, and those they employ, are subject to the Commissioner’s disciplinary power. Rule 22, for instance, states:

All Clubs and players shall submit themselves to the discipline of the Commissioner as provided in the Major League Constitution and accept the Commissioner’s decisions rendered in accordance with the Major League Constitution and these Rules.

And Rule 24 goes one step farther:

Both the Commissioner and a Club are entitled to discipline any manager, trainer, coach, scout, or other personnel who is not a player, in case of a violation of contract, the Major League Constitution, the Major League Rules, the Commissioner’s regulations, or other rules, policies and guidelines. Such discipline may include fining, dismissing, releasing, suspending or expelling the offender. Any Club dismissing, releasing, suspending or expelling any such person shall at once notify the Commissioner’s Office in writing stating the cause of such action. . . . Unless prior approval of the Commissioner is granted, no person who has been suspended or otherwise declared ineligible shall perform any function for any Club or any other entity related to the Clubs during the duration of the suspension or period of ineligibility.

So what does the Major League Baseball Constitution say about the commissioner’s disciplinary power?

In the case of conduct by Major League Clubs, owners, officers, employees or players that is deemed by the Commissioner not to be in the best interests of Baseball, punitive action by the Commissioner for each offense may include any one or more of the following:

(a) a reprimand; (b) deprivation of a Major League Club of representation in Major League Meetings; (c) suspension or removal of any owner, officer or employee of a Major League Club; (d) temporary or permanent ineligibility of a player; (e) a fine, not to exceed $2,000,000 in the case of a Major League Club, not to exceed $500,000 in the case of an owner, officer or employee, and in an amount consistent with the then-current Basic Agreement with the Major League Baseball Players Association, in the case of a player; (f) loss of the benefit of any or all of the Major League Rules, including but not limited to the denial or transfer of player selection rights provided by Major League Rules 4 and 5; and (g) such other actions as the Commissioner may deem appropriate.

In other words, the Commissioner can exercise a tremendous amount of discretion when it comes to determining punishments in cases like this. This kind of blanket authority is known as plenary power: “Power that is wide-ranging, broadly construed, and often limitless for all practical purposes.” If the Commissioner decides that you’ve behaved in a manner which violates a Rule, he has complete authority to punish you for doing so. We saw this when Major League Baseball suspended Padres General Manager A.J. Preller for 30 days for failing to disclose that southpaw Drew Pomeranz was injured prior to trading him to the Boston Red Sox. Preller agreed to accept that discipline under Rule 22 with no recourse even before it was issued: that’s how plenary authority works. Similarly, then-Commissioner Fay Vincent suspended late Yankees owner George Steinbrenner for life back in 1990; he was later reinstated. So Manfred could strip Baer of his role as CEO, but allow him to keep his ownership stake – or both, or vice versa.

Now, you might ask why the Commissioner’s authority is greater here than it is concerning players. That’s because the players have collectively bargained for greater protections, such as appeal rights. In fact, as you can see above, the MLB Constitution defers to the CBA as to player discipline – but contains very different limits as to non-players. Front office personnel, who aren’t unionized, are essentially subject to the Commissioner’s plenary authority. And the “such other actions” catchall essentially means that the Commissioner can do what he wants. The Commissioner is limited by the expressly included fine restrictions, but a person fined $500,000 would, in theory, have no appeal rights to anyone other than the Commissioner himself.

You might also wonder why the Commissioner has more power to discipline an executive under the Joint Policy than he does a player. That’s because of that “scope” and “discipline” language we mentioned before – the appeal rights (i.e., the players’ safeguards) don’t apply here. In other words, the employees of a team are subject to a policy that is required to cover the same conduct, but doesn’t need to follow the same procedures for meting out discipline.

So what can Manfred do to punish Baer? He can reprimand him. He can fine him up to $500,000 with no appeal. He can suspend him for any period of time, ranging from one day to forever, barring any involvement with the Giants during that period. He can order him replaced as the Giants’ control person. He can bar him from owners’ meetings for any period of time. Baer’s role as an owner makes the situation more complicated — Manfred could strip Baer of his role as CEO, but allow him to keep his ownership stake – or both, or vice versa, though given the circumstances under which owners have been removed historically, Baer being forced out seems unlikely here. And it’s worth noting that the Giants as an organization have the authority to punish Baer, though it’s unclear whether that option is even on the table beyond the personal leave the Giants indicate he voluntarily requested; also unclear is who will assume the position of control person in his absence.

The problem is that, as we mentioned before, no front office employee or executive has ever been investigated or disciplined under the domestic violence policy before, so there’s no real precedent here. Further, Pam Baer’s statement downplaying the incident means that she may be unwilling to cooperate with MLB investigators, making any discipline more complicated. As a result, we really have no idea how Manfred will respond to this. If he uses player suspensions as precedent, we may be looking at a lengthy one. But it’s also worth noting that Manfred may be unwilling or unable to harshly discipline a team’s control person, given that the 30 control agents are, in essence, Manfred’s bosses. On the other hand, the Players’ Association would justifiably be irked if Baer went undisciplined, with the message being sent that front office executives aren’t subject to the same standards of conduct that players are.

Whatever Manfred decides is going to set a pretty significant precedent moving forward. It remains to be seen what message he and Major League Baseball want to send – and who they want the recipients of that message to be.

Last year, we discussed the lawsuit that former Yankees top prospect and current Athletics outfielder Dustin Fowler filed against the White Sox for the injury he suffered after colliding with a concealed electrical box while chasing a fly ball at what was then called U.S. Cellular Field (a vastly superior name to Guaranteed Rate Field). When last we checked in, the White Sox and the Illinois Sports Facilities Authority (the two defendants in the case) had removed the case to federal court and were trying to use something called labor law preemption to argue that the case should be dismissed.

The White Sox invoked the Labor Management Relations Act (“LMRA”), a federal law Section 301 of which states that federal courts, and federal law, govern all employment disputes where the rights of the parties have been collectively bargained. The team argued that “Plaintiff . . . was injured as a result of an incident that took place only because he was employed as a Major League Baseball Player pursuant to a highly regulated contractual employment relationship that specified all of the rights and duties of the respective parties – including with respect to Players health and safety.” Here, the White Sox pointed to Article XIII of the CBA, which governs players’ safety and health, and included a committee set up to assess potential player hazards.

Fowler, of course, disagreed, and noted the limitations of the Committee created by Article XIII.

At the time, I noted that while the issue wasn’t clear cut, I thought Fowler had the better argument. Last July, Judge Gary Feinerman agreed with Fowler, sending the case back to state court for adjudication of Fowler’s state law claims in a blistering opinion.

A state law claim is not completely preempted where a defendant contending that the claim requires interpretation of a CBA advances a frivolous or insubstantial reading of the agreement; rather, preemption applies only where the defendant’s interpretation of the CBA is arguable or plausible. . . .But the White Sox’s reading of Article XIII [of the CBA] is not plausible.  No club could have reasonably believed, based on the text of Article XIII, that the Committee would be able to identify safety risks so comprehensively and effectively that, as long as the Committee raised no objections, the club could simply assume that nothing in its premises posed an unreasonable risk to players.

In other words, Feinerman concluded that the team’s argument was implausible on its face, because it provided a means for teams to ignore real hazards to players simply by deferring to the Committee’s judgment. To Feinerman, that argument represented an absurd interpretation of the CBA – not to mention one that would have significant negative public policy ramifications.

Article XIII leaves no doubt that the clubs were in a vastly better position than the Committee to assess the safety of their own premises.  The clubs did not give up any control over their premises to the Committee, nor did they even grant it any consistent supervisory role.  . . . When the Committee does address a safety concern, its recommendations are only advisory, leaving final authority over the premises with the clubs.  It would have been wholly unreasonable for any club to delegate its responsibility to ensure the safety of its playing field to the intermittent and weak Committee described in Article XIII.

That language – calling the Committee weak – was an intentional swipe at Major League Baseball. Judge Feinerman was, in essence, finding that Fowler was entitled to a remedy in tort law because the CBA didn’t provide an appropriate remedy, either through the committee or through arbitration.

Feinerman also emphasized that the electrical box being a hidden hazard made the team’s argument implausible because it improperly placed the burden on the player rather than on the team. It was not the job of the player, held Feinerman, to alert teams to hazards on the playing field.

That conclusion applies with particular force to a small, hidden hazard like the metal box that injured Fowler.  Because the box was hidden from players’ view … no player could have realized the risk it posed and attempted to convene the Committee to address the problem.  And it strains credulity to suppose (and the White Sox do not assert) that the Committee would examine such granular details of individual ballparks in its occasional meetings “for purposes of review and planning.”  It follows that the White Sox’s interpretation of Article XIII is not plausible, that the Basic Agreement therefore will not affect the White Sox’s duty of care to Fowler, and therefore that Fowler’s claims are not completely preempted under Section 301.

Feinerman concluded by calling Fowler’s claims “true state law claims,” and remanded the case to the Circuit Court of Cook County, Illinois, for a disposition on the merits; it remains pending there before Judge Kathy Flanagan.

I think Feinerman got it right here, even if, legally speaking, I thought this was a closer call than he did. That said, there’s no doubt that this case, for a lot of reasons, represents a possible sea change in how tort law will deal with these claims moving forward. Last June, in the context of Reggie Bush’s $12.5 million verdict against the Rams, I noted that victories like that were exceedingly unusual.

Remember that it’s really hard — and therefore really rare — for a professional athlete to sue for an injury sustained on the field. Verdicts like the one in Bush’s case, for an injury sustained in game activity and without the intentional act of another, are incredibly rare in the modern law.

One of the main reasons for that is the issue of labor law preemption, which was raised in Bush’s case. And yet, in two major cases in consecutive years, a court has ruled that doctrine inapplicable in favor of applying state law tort claims. Feinerman’s ruling is a first for professional baseball, and carries the implication that teams are, in fact, liable in tort for injuries suffered by players as the result of on-field hazards. In fact, Feinerman’s decision could be read to require teams to adhere to the same duty of care towards athletes as they would towards any other person.

Nevertheless, Feinerman’s decision did contain some interesting limitations. First, Feinerman made a distinction between a duty owed by a team to its own players and a duty owed by a team to visiting players. While Feinerman didn’t explicitly say that a team doesn’t owe a state law duty of care to its own players, or that CBA preemption would apply in those circumstances, he nonetheless did state that a team’s duty to players not its own differs. On one hand, that makes a certain degree of sense, both from an employment law perspective (suing your employer is different than suing someone else’s employer) and a tort perspective (in theory, you will know your own home ballpark better than a visiting player will).

Second, Feinerman held that Fowler’s injury was reasonably foreseeable assuming all facts in the complaint to be true. That’s significant, because it essentially states that as a matter of law, hazards on a baseball field are reasonably foreseeable to cause injury where not expressly addressed by the CBA. That holding necessarily means that a team that camouflages a sprinkler, or an electrical box, or even an unpadded wall, could face liability if a player is injured coming into contact with it.

That doesn’t mean Fowler will necessarily win his case. The team may well have state law tort defenses, or Fowler’s legal team could prove unable to prove his case at trial for several different reasons. That said, we now have case law that the courthouse doors aren’t closed to a player who suffers an on-field injury during the ordinary course of a baseball game. And that’s a really significant development.

Remember Daisuke Matsuzaka? The right-hander was Boston’s big-ticket pickup back in 2006, with promises of a gyroball that never panned out. After his injury-plagued tenure in the majors ended, Dice-K went back to Japan and, after a brief, injury-induced hiatus, settled in as a decent mid-rotation starter for the Chunichi Dragons. His 2018 season earned him Comeback Player of the Year honors.

Then things took a turn.

If you’re at all familiar with Matsuzaka’s time with the Red Sox, you know that he wasn’t exactly a workhorse in Boston, with injuries ranging from Tommy John surgery to neck stiffness attenuating his MLB career. But the injury the 38-year-old suffered most recently can only be described as bizarre. Per the Japan Times:

Chunichi Dragons pitcher Daisuke Matsuzaka took leave from his Central League club on Sunday in order to treat a right shoulder injury sustained when an overzealous fan pulled his arm last week.

Yes, that’s right – a fan of Dice-K thought it would be a swell idea to pull on the hurler’s right arm during a fan outreach event. The fan evidently pulled so hard that it caused inflammation in the right-hander’s shoulder, resulting in Chunichi shutting him down. Daisuke remains quite popular in Japan, however, leading some to speculate that Chunichi might actually sue the fan who pulled on the pitcher’s arm – and that the fan might even see jail time. Read the rest of this entry »

In October, we talked about the Angels opting out of their stadium lease with the city of Anaheim. At the time, the move required that the team vacate the venue at the close of the 2019 season. Given the rapidly approaching deadline and acrimony between the parties, I speculated then that the most likely outcome would be a short-term deal.

So where does that leave the Angels and Anaheim? Most observers think these two parties need each other, and I tend to agree. . . . The Angels need a baseball stadium, and Anaheim doesn’t want to lose its tenant, even if the team has been a pain in its butt. At the same time, however, we’re already seeing trial balloons floated about moves to Portland or Las Vegas, and neither side is moving with any urgency at this point (though that could and probably will change down the road). I think the safe bet is a short-term, five- or ten-year lease with another opt-out, enough for the two sides to have a brief cooling-off period.

As it turns out, the two sides did end up reaching a short-term agreement, but it was for a far shorter length of time than most observers, including myself, anticipated.

Such a deal would be an elegant solution to the current impasse, changing what the Angels consider to be a “toxic” atmosphere for local businesses into a private-public partnership. At the same time, it’s far from a sure bet; for one thing, a deal like this, while addressing the team’s location concerns, wouldn’t provide the upgraded facility the team desires. And worse, the Ducks’ deal did cut into what the Angels wanted as part of their own mixed-use complex.

[Anaheim] Councilman Stephen Faessel, who otherwise called the proposal a “great deal,” questioned why the deal includes the sale of a parking lot across from the Honda Center by ARTIC without a formal bidding process where other developers could also bid for the property.

“ARTIC is not that far from Angel Stadium, and now we’re likely going to have to negotiate a deal with the Angels, how do we know the Angels won’t give us a better deal?” Faessel said.

City spokesman Mike Lyster later clarified the city is not considering selling the ARTIC lot, but may lease it to the Honda Center.

So despite how the deal has been framed – as a way for the two sides to buy time to reach a more long-lasting arrangement – this extension is no guarantee that an agreement will, in fact, be reached. And most interestingly, the one-year extension keeps open the possibility that the team could consider a jump outside of California – particularly given the recent development that Portland may be ready for a major league team as soon as 2022.

The Seattle Mariners’ offseason hasn’t gotten off to an ideal start. Despite a 2018 campaign that saw the team win 89 games and compete for a Wild Card spot most of the year, the club appears likely to blow up its roster, having begun the process already with a trade of starting catcher Mike Zunino to Tampa Bay. That was followed by word that Seattle planned to move ace James Paxton, who still has two years of team control left.

While bad news for the team’s short-term prospects, such deals are at least designed to maximize the long-term health of the organization. Another recent development, however, would seem to have little in the way of silver linings. As Ryan Divish reported on Monday, the team suddenly finds itself in the throes of a messy public parting of the ways with ex-employee Dr. Lorena Martin.

You may recall that Dr. Martin was hired a little over a year ago as the team’s first “director of high performance,” a position crafted to use analytics and medicine to keep players healthy. At the time, Mariners general manager Jerry Dipoto issued a glowing review of his new hire, as passed along by the Seattle Times.

Martin, who was the director of sports performance analytics for the Los Angeles Lakers, will oversee the organization’s medical, strength and conditioning, nutrition and mental-skills departments.

“We have spent nearly a year working on creating this position and structure as well as identifying the best person for this role,” Mariners general manager Jerry Dipoto said. “Lorena’s background, skill set and previous experience make her a perfect match for what we envisioned.”

Despite the somewhat florid title, Dr. Martin’s role with the Mariners was fairly groundbreaking.

With the Mariners, she was put in charge of all aspects of physical and mental training for the team’s players, incorporating data from various trainers, coaches and physicians to improve performance.

“My passion for statistics derived from my desire to just want to answer a simple question: ‘What are the variables that professional athletes must have in order to become a world class athlete in their sport?’” Martin told GeekWire. “I found that I could answer my questions through research, measurement, statistics, and analytics.”

In June 2018, the Mariners were still lauding Martin and the job she was doing. In July, TJ Cotterill wrote a profile of Martin for the News-Tribune, noting that Martin had reduced the Mariners’ injuries by 50%. She received praise from Felix Hernandez, who told Cotterill that “[s]he’s made a huge impact.”

But the honeymoon didn’t last. Though Martin was signed to a three-year contract, the Mariners terminated her employment in early October. Ryan Divish relays for the Seattle Times that the Mariners didn’t believe she was as successful at changing the organization’s culture as the club originally anticipated she would be.

Martin’s presence with the major-league team wasn’t as visible as first expected. Dipoto gave her oversight over all aspects of the training and conditioning programs for the entire organization. It was was a massive undertaking.

Also, some players were slow to embrace a new style of thinking about their health, conditioning, nutrition and recovery… there were rumblings that she would have her role reduced with the big-league team and that she would instead work out of the team’s complex in Arizona, focusing more on the minor-league staff in 2019.

But on Monday, Martin posted on Instagram a different explanation for her termination.

In other words, Dr. Martin is not only alleging senior leadership used racist language but is heavily implying that she and others were terminated for reporting such language. If true, that would violate both Title VII of the Civil Rights Act of 1964, as well as Washington’s state-level Human Rights Act. And while we don’t have enough facts to know whether Martin would have standing to file suit for a racist remark if it wasn’t directed at her, terminating her for reporting that conduct is almost certainly unlawful.

The Mariners issued a categorical denial that any such racist conduct occurred.

Martin responded to the Mariners’ statement by confirming that she had, in fact, reported racist incidents to Mariners management.

Of note in Martin’s tweet here is that she provides actual names of trainers she says the Mariners terminated for reporting discriminatory statements. The Mariners, for their part, didn’t deny firing any trainers for that purpose — they denied firing any trainers at all.

So who’s right? We know that Martin didn’t pull the names out of a hat. The team’s categorical denials leave them very little wiggle room should new details emerge. Santiago, for example, was confirmed as working for the Mariners as an athletic coordinator before the 2017 season. I wasn’t able to find any public confirmation that either Santiago or Valdez were terminated, but it should also be noted that neither is listed on the team’s staff directory or coaching roster (though Dr. Martin is still listed). Martin explained her delay in coming forward as the result of ongoing negotiations.

Ryan Divish confirmed at least that such negotiations were occurring, writing that “[s]ources indicated that the Mariners are trying to avoid paying the remaining two years on Martin’s three-year contract for various reasons and that she has hired an attorney.” At the same time, Divish noted that Martin’s contract likely contained an arbitration clause, which would preclude either side from bringing a lawsuit and require both parties to present their claims to an arbitrator.

So why did the Mariners terminate Martin? At this point, we have the team saying it was poor performance and Martin saying it was retaliation for reporting racist comments. It’s also worth noting that the team, including Dipoto, has previously taken a hard line against racist comments, most notably suspending catcher Steve Clevenger without pay for tweets he made regarding Black Lives Matter. The details of this incident are still emerging. Dr. Martin went on the record with the Tacoma News Tribune Monday evening to further detail her allegations; the Mariners once again issued a categorical denial, calling Dr. Martin’s claims “fabricated,” including “her statements about reports to Human Resources and specific allegations about people named in the story.” We simply don’t have enough information at this point to conclusively determine what happened, but either way, this will be a cloud hanging over the Mariners’ already challenging offseason until we have greater clarity.

Howard Norsetter, the Minnesota Twins’ international scouting coordinator, was fired at the end of the 2017 season. The termination came as a shock, both because of Norsetter’s long tenure with the team – he was first hired by Minnesota in 1991 – and also because of his record whilst working for the Twins. Norsetter is most notable for being the scout who discovered and signed stars like Justin Morneau, but the sheer number of legitimate major league players he uncovered during his career is remarkable. Norsetter signed Grant Balfour, Liam Hendriks, Max Kepler, and Byung Ho Park, among more than 25 major leaguers. John Sickels posted an interview with Norsetter from 2010 in which he demonstrated a sharp baseball mind.

And even after Norsetter was let go, the Twins continued signing players he’d found and recommended, including Kai-Wei Teng. In other words, Norsetter, who lives in Australia, is undeniably good at his job. The Twins evidently agreed, saying his termination wasn’t performance related. Norsetter was later hired for a lesser position with the Philadelphia Phillies.

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