Archive for Legal

Trevor Bauer, Fame, and the Right of Publicity

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August 23, 2018

It didn’t get nearly as much press coverage as fake news tweets about CIA nanites, but back in June, injured Indians hurler Trevor Bauer filed a lawsuit against a company called Top Velocity, LLC, alleging that Top Velocity and its owner, Brett Pourciau, illegally used his license in violation of federal, Texas, and Louisiana law. You can read his Complaint here.

There’s a lot to unpack. Remember that this is, as always, a simplified overview: don’t go practicing law or filing lawsuits based on what you see here.

Let’s start with the crux of what Bauer is saying.

This might seem kind of funny (Bauer is alleging he is World Famous!), but it’ll be important later. Now to what Bauer is saying Top Velocity and Pourciau did wrong:

Bauer also alleges that his attorney made repeated requests that Pourciau and Top Velocity remove Bauer’s name and likeness from their website. According to Bauer, after some back-and-forth, they agreed.

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Trevor Bauer, CIA Nanites, and Remedies for Misunderstood Satire

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August 22, 2018

Trevor Bauer has been probably Cleveland’s best starting pitcher this year. In his long-awaited breakout, Bauer has racked up 5.9 WAR in just 166 innings on the back of a 51 ERA- and 57 FIP-. His peripherals fully support his performance: a 31.5% strikeout rate and 23.2-point K-BB% are nothing short of elite. His fastball, curveball, cutter, slider, and changeup, meanwhile, have all been well above-average offerings by pitch values. In other words, Bauer’s been Cleveland’s ace, and that’s no small feat on a team with Corey Kluber and Carlos Carrasco.

So it was a pretty significant blow last week when Bauer suffered a stress fracture in his right leg, the result of being hit with a line drive off the bat of White Sox slugger Jose Abreu.

https://twitter.com/MLBastian/status/1030557350372016128

Bauer is without a firm timetable to return. He also has a history of proposing novel and ill-advised medical procedures like sealing a cut with a soldering iron. The combination of those facts led Michael Baumann, writer for the Ringer, to tweet this.

This is a joke. Colloidal silver is the quintessential snake oil, with no efficacy for treating diseases and potentially serious side effects ranging from skin discoloration (as in, you turn blue) to organ failure. Still, it continues to be marketed as a treatment or cure for the common cold, despite that advertising likely being illegal. In short, colloidal silver is quackery, and as Baumann related later, he assumed we’d know that and get the joke.

I assumed that my joke about Bauer using blood transfusions and colloidal silver to cure his injured fibula was so ridiculous it would be impossible to mistake it for actual serious reporting.

Never underestimate the capacity of humanity to prove your assumptions wrong.

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How an Agent with Multiple Players Avoids Conflict of Interest

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August 20, 2018

Last week, I wrote about fiduciary relationships in the context of Scott Boras and Jayson Werth, citing the seminal case of Detroit Lions v. Argovitz as a model to better understand an agent’s responsibilities to his client. (If you didn’t read that piece, you should, because it’s the prerequisite for everything which follows.)

Anyway, a number of commenters asked me to look at a slightly different configuration of the sports-agent fiduciary problem: what happens when an agent potentially has a conflict of interest which results from representing more than one player?

Before we answer, a few caveats. First, we are not analyzing actual situations here. This is not a guide on how to avoid disciplinary action by your state’s bar or your league’s player union. Second, this is a bird’s-eye view from about 50,000 feet, which is to say that we are oversimplifying things greatly. There is a lot more to it than what you see here, but submitting 20,000 words to my editor on conflicts of interest in fiduciary relationships (which is surprisingly possible) would likely draw his ire. Third, this is a broad overview based on American law. This is actually an international issue, which means that Canada and Australia, for example, have different rules. Finally, please don’t start a sports agency based on what you see here.

Now, moving on. There’s a couple of different ways to analyze the question posed above. On the surface, it may seem that having a multiple clients is not, in and of itself, a conflict of interest. And while that’s frequently the case, remember that a fiduciary owes a duty of loyalty to the beneficiary — to the exclusion of everyone else. As attorney Robert Kutcher explains,

Whenever one party places trust and confidence in a second person with that second person’s knowledge, it is possible that a fiduciary relationship is created. Such a relationship imposes on the fiduciary the duty to act in the best interest of the person who has placed his or her trust and confidence in the fiduciary. As a result, the fiduciary may not simply deal with that party at arm’s length, guided only by the morals of the marketplace.

It’s also possible to go to the other extreme. Since sports agents are fiduciaries, you could also argue that taking on more than one client is an inherent conflict of interest, because every minute dedicated to one player’s case is a minute not dedicated to another’s, to whom a fiduciary duty is owed. But that can’t be right either, because Scott Boras, for instance, has lots of clients. Most agents have multiple clients.

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Jayson Werth, Scott Boras, and Fiduciary Relationships

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August 14, 2018

Newly retired outfielder Jayson Werth was honored by the Phillies in early August for his contributions to the 2008 World Champions. He made news that weekend for comments that derided “super nerds” as “killing the game.” (It’s worth noting, of course, that Werth was a sabermetric darling back in the day, standing out for his plate discipline.) Of more interest to me, however, was this statement he made on the Howard Eskin podcast:

“I had offers in November, and I was advised by my former agent to wait; ill-advised, I guess.”

***

“Some guys were surprised to hear from me – they didn’t know that I wanted to play. Which was surprising, because I wanted to play. I let my agent know I wanted to play. And they said they either hadn’t heard from him, hadn’t heard from me, just didn’t know that I was available. So that’s one of the reasons why I’m no longer with that agent.”

That raises eyebrows for two reasons. First, because Werth is essentially accusing his agent of a breach of contract, and potentially a breach of fiduciary duty as well. (Keep that term in mind – it’ll be important later.) And second, because the agent in question is Scott Boras, who has been recognized by Forbes as the industry’s most powerful and who, thanks to Eric Hosmer, has now negotiated no fewer than 15 deals of $100 million or more. Accusing Scott Boras of not doing his job is a bit like accusing Clarence Darrow of malpractice: it gets your attention.

Now, Boras, for his part, denies any wrongdoing. His company, the Boras Corporation, gave the Washington Post’s Chelsea Janes this statement:

Unfortunately, it appears someone has misled Jayson. We contacted all 30 teams numerous times during the offseason on his behalf, and we have phone logs, emails, and other records to back it up. We received no offers for Jayson in November, or otherwise. We are always prepared to support our work against inaccuracies spread by third parties. We understand the frustration and disappointment players can face and wish Jayson all the best.

What’s perhaps more interesting is this excerpt from Janes’ story (emphasis mine):

The Boras Corporation sends out a list of its free agents to every team at the start of free agency each November. Werth’s name was on that list. Boras Corp. provided that list for verification, as well as date-stamped phone logs that documented dozens of phone calls and emails made to executives on Werth’s behalf. Boras keeps detailed records of every offer and conversation, documentation that protects them against allegations of malpractice — and any litigation that could accompany them.

The reference to litigation isn’t accidental; I’d even wager that it was provided to Janes by the Boras Corporation itself. Boras is a lawyer and, believe it or not, lawyers are very deliberate in how and when they raise the spectre of litigation. This was a shot across Werth’s bow — a warning, if you will, not to pursue the matter further.

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Juan Soto, Joe Simpson, and When Commentary Becomes Defamatory

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August 9, 2018

Without a doubt — and this is an objective fact — the best thing about baseball in 2018 has been Juan Soto. I mean, you could say it’s Mike Trout, because the answer to almost every baseball question is Mike Trout. But Juan Soto is probably the best teenager baseball has ever seen, and baseball’s been around a while. Juan Soto has posted a .415 wOBA and 161 wRC+, both marks fifth in baseball among players with 200 or more plate appearances. He’s outhit Aaron Judge (157 wRC+) and Freddie Freeman (143) and Paul Goldschmidt (141) and a whole bunch of other people he has no business outhitting. Juan Soto is third on the Nationals in WAR (2.7) and has played in 68 games. Trea Turner, who leads the team with 3.5 WAR, has played in 113 games. Juan Soto is so good. And he’s doing this, again, at 19 years old.

For no other reason than because Juan Soto is my favorite thing about 2018 Major League Baseball, here is Juan Soto hitting a ball to somewhere past Saturn — off fellow southpaw Chasen Shreve:

And an even more impressive dinger on a pitch that was probably off the plate inside:

Juan Soto doing Juan Soto things has brought him some degree of attention around the league, and Soto might be, at just 19, the best position player on a Nationals team that also employs Bryce Harper and Anthony Rendon. And it’s likely because of his surprising ascent that, when he came up to bat against Atlanta earlier this week, Braves announcer Joe Simpson made a comment that raised a few eyebrows. You can hear the audio here, but here’s what he said as relayed by the New York Post:

“If he’s 19, he certainly has his man-growth,” Simpson said. “He is big and strong.”

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Angel Hernandez and How Lawsuits Impact Baseball

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August 8, 2018

Angel Hernandez is not considered a particularly good umpire. He’s been called, unironically, the worst umpire in Major League Baseball. Ian Kinsler said last year that Hernandez “needs to find another job, he really does.” And Kinsler’s not alone.

Players in both the American and National League voted Hernandez one of the game’s three worst umpires. (In case you’re wondering, Joe West was worse in both leagues.) So why is Hernandez considered so bad at his job? He’s probably most famous for incorrectly calling this a double instead of a home run back in 2013.

But there’s more to Angel Hernandez than blowing home-run calls. His calls at the plate aren’t great either. And his strike zone tends to be, shall we say, creative.

Like in this instance:

And this one:

And this one, from the World Baseball Classic:

So it’s not surprising that Hernandez has made an appearance or two in Jeff Sullivan’s “worst calls” series.

Per the rulebook, of course a strike is a strike because the umpire says it is. This is the Marbury v. Madison of baseball. But the rulebook also says a pitch is a strike based on the umpire’s discretion within certain guidelines; it doesn’t say that a pitch is a strike because the umpire feels like it. It seems like calling these pitches strikes would be an abuse of discretion; that is, not reasonable. And yet Hernandez, to the bewilderment of some, still has his job.

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Roberto Osuna, Immigration Law, and Crimes of Moral Turpitude

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August 7, 2018

Houston Astros general manager Jeff Luhnow is a very smart man. There’s not much dispute about that – he has an MBA (from Northwestern’s Kellogg School of Management) and degrees in economics and engineering. He’s developed a reputation for being well-prepared.

So after the club acquired Roberto Osuna for Ken Giles at the deadline, columnist Lance Zierlein was well justified when he wrote that “[t]here is no way the Astros haven’t done their homework on Osuna.” And while the organization’s public-relations department appears to have confused the word willfully with willingly (otherwise, this statement regarding Osuna would have a markedly different meaning), even Luhnow himself noted that his own office’s due diligence on Osuna was “unprecedented.” There’s no reason to doubt him.

That said, there are certain outcomes for which no amount of preparation can ultimately account — and that’s relevant to Osuna’s future with the Astros, because, while the right-hander has been punished by Major League Baseball, his criminal case in Canada remains pending. And the outcome of that case could have real consequences on Osuna’s career.

Osuna, for his part, doesn’t want to talk about it, “declin[ing] to provide specifics about the incident” according to ESPN’s Alden Gonzalez. There are multiple reasons why Osuna would refuse to address the charge. To avoid conflicts with an ongoing case, for example. Or to avoid revisiting an episode about which he’s ashamed.

Finally, it could be part of a legal strategy. As Gonzalez notes in his piece, Osuna’s attorney, Domenic Basile, “has entered a not guilty plea on Osuna’s behalf and is reportedly seeking a peace bond that would essentially drop the charges in exchange for good behavior.”

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How the Mariners’ Request for Public Funding Is Different

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August 1, 2018

Back in May, the Mariners agreed to a lease deal that would keep them in Safeco Field for another 25 years. At the time, I wrote that the Mariners appeared to be bucking a trend by foregoing public money for a new stadium in favor of staying where they were.

Then, last week, things seemed to change.

Predictably, this was not well received.

https://twitter.com/StelliniTweets/status/1022286443694182402

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MLB, Twitter, and Baseball’s Looming Age Problem

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July 30, 2018

If you’re like me, you use Twitter. Twitter’s awesome! It gives you breaking news, reports on the latest trades, and also whatever this is:

And without Twitter, we wouldn’t have unfettered access to Brandon McCarthy’s observations of the world, which are worthwhile…

Twitter can be good, in other words.

As anyone familiar with that particular platform knows, however, it’s not always. As MLB learned this week, sometimes tweeting can become a pretty risky exercise. Not only have three young players been forced to contend with the ugly sentiments of their younger selves, but the league’s main account has also found itself in the middle of something, as well.

It started with this:

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Is Pitch-Framing Cheating?

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July 27, 2018

Remember Ryan Doumit? I’m dating myself by saying it, but back in 2005 and 2006, I was obsessed with him. He was an oft-injured catcher who could really hit. He approached a .200 ISO in back-to-back years of part-time duty in 2006-07 and absolutely destroyed the minor leagues.

But the Bucs were steadfastly against making Doumit their starting catcher, sticking him at first base and in the corner outfield. At the time, I thought the Bucs were making a serious mistake by not playing Doumit behind the plate every chance they got. I mean, the guy posted three wins on the back of a 123 wRC+ in 2008, his first full year of play. How could a team not stick that bat behind the plate?

What I didn’t appreciate at the time were the Pirates’ concerns. Ryan Doumit was an extraordinarily bad pitch-framer, a fact the Pirates knew and I didn’t. And as pitch-framing has become an increasingly important part of the game, an interesting question has emerged: is pitch-framing even legal?

https://twitter.com/Darth_Stout/status/1016715139029131265

https://twitter.com/BerniePleskoff/status/868902960415354880

This is actually a really interesting issue, for a lot of reasons — and the first of those reasons is that it forces us, first of all, to define what, exactly, pitch-framing means. What is pitch-framing, anyway? I mean, if you read this site, it’s a pretty good bet you have an intuitive understanding of what it is, but we can’t exactly take our intuition, go to baseball’s rulebook, and look that up. In order to figure this out, we need to have one, firm definition of pitch-framing.

There’s just one problem: there is no one definition of pitch-framing. Here’s proof – we can’t get lawyers, who make definitions of things for a living, to agree on a definition.

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