The State of West Virginia – or, rather, certain legislators in the State of West Virginia – have decided that they want to legalize sports gambling. This has created a kerfuffle in the Commissioner’s office, which has lobbied hard against the bill. Said Rob Manfred last Friday regarding the bill: “Major League Baseball and the other professional sports also have a strong interest, because it is, after all, our product that people are seeking to bet on… Unfortunately in West Virginia, there’s only one interested group that has dominated the substance of this bill, and that’s the gaming industry – the people seeking to make money from sports betting.” Manfred also voiced concerns that the proposed legislation doesn’t sufficiently protect gambling addicts.

Assuming West Virginia governor Jim Justice signs this bill, West Virginia will have legalized sports gambling. For our purposes, “sports gambling” means pretty much what it sounds like — things like betting on the outcome of baseball games. West Virginia wants to legalize it to make money off of it; fees and the like appended to sports gambling are expected to generate $30 million for the state’s coffers in just the first year.

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Today is Stacy Piagno’s birthday. If that name sounds familiar, it’s because Piagno has made some history over the last couple years, becoming (along with outfielder Kelsie Whitmore) not only the first woman to appear on a professional roster in over half a century, but also the first to win a game as a pitcher in roughly that same period of time.

Nor were Piagno’s appearances the product of a mere promotional stunt. After debuting in 2016 for the Sonoma Stompers of the independent Pacific Association, she returned to the team last year, posting a 4.20 ERA, including seven innings of one-run ball against an all-male lineup in a July 15 victory. (The Stompers, you may recall, were the subject of the excellent book The Only Rule is It Has to Work by Ben Lindbergh and Sam Miller.) The Stompers have sent several players to more advanced leagues, including to affiliated ball. Succeeding in that context isn’t a negligible feat.

Piagno and Whitmore (who’s not even 20 yet) are hardly the only women to distinguish themselves on the field against men. The Negro Leagues, which hosted some of the greatest players of all time (Cool Papa Bell, Josh Gibson, Satchel Paige) and which, by some estimates, featured a talent level roughly equivalent to that found in the NPB, also had a number of female players right alongside the men. Toni Stone hit .243, played a competent second base, and is most known for recording her team’s only hit in a game against Satchel Paige. Mamie Johnson posted a 33-8 record and a .276 batting average. (I recognize that pitcher record and batting average aren’t ideal stats, but advanced metrics aren’t really available for a lot of Negro League players.) So there is at least some precedent for women playing capably at a relatively high level.

And there’s more recent history, too. Ila Borders threw over 100 innings across four independent-league seasons between 1997 and 2000. Knuckleballer Chelsea Baker, who dominated her high school (boys’) baseball league, threw batting practice to the Tampa Bay Rays in 2014. And fellow knuckleballer Eri Yoshida held her own across both Japan and North America. There is also a National Women’s Baseball Team and the Japan Women’s Baseball League, and a Women’s baseball world cup.

The issue of women in baseball has already been addressed by writers far better than I. I’m not here to re-cover that ground. I’ve cited women’s history in the game, though, simply to establish both that women have exhibited both (a) a desire and (b) sufficient skill to play it professionally. (More on that latter point below.) What I’d like to do here is address the possibility that women have been excluded from the game — both as players and umpires — for reasons other than merit. And while I’m not the first to write about this, I’d like to take the opportunity of Piagno’s birthday to propose a legal theory by which women could potentially play affiliated baseball.

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In December, Twins slugger Miguel Sano was accused of violently assaulting a photographer, Betsy Bissen. Sano has unequivocally denied the allegations. But the report of the incident led to an investigation by Major League Baseball under the “Joint Domestic Violence, Sexual Assault and Child Abuse Policy” and “Joint Treatment Program for Alcohol-Related and Off-Field Violent Conduct” in the CBA. On February 27, as part of that investigation, Major League Baseball investigators interviewed Sano for four hours.

The entire process has set off something of a free-for-all on the internet, with people taking sides between Sano and his accuser, throwing around terms like “sexual assault” and “due process.” Under such fraught circumstances, however, precision in one’s language is ideal. So let’s try to clear up some of the confusion.

There’s been a debate regarding whether Sano has been accused of sexual assault, simple assault, or something else entirely. Again, this is not to say that Sano is guilty of any offense. However, it’s probably worth asking the question: assuming Sano actually did what he is accused of, what law would it violate? As for the answer, it really depends upon the state in which the incident has occurred, because there is actually a pretty big disparity between states as to what constitutes a sexual assault.

In this case, we’re looking at Minnesota law. I’m a civil litigation attorney, not a criminal attorney, and we’re dealing with issues here where it’s really important to get the law right. So I spoke with a Minnesota private criminal defense attorney, Erica E. Davis, Esq. from Davis and Egberg, PLLC in Minneapolis, to get her thoughts.

Davis believes, at the very least, that Sano “could clearly be charged” with misdemeanor assault. Under Minnesota law, “assault” is “(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.” Here, we’d probably be talking about misdemeanor assault in the fifth degree under Minn. Stat. § 609.224. Davis said that, for purposes of this statute, if we assume the allegations are true, Sano “clearly caused [Bissen] bodily harm.” She emphasized Bissen’s allegations that her wrist hurt the next day and that she repeatedly told Sano she didn’t want to go with him.

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Ronald Acuna is a very, very good prospect. As a 19-year-old last season, he played his way to Triple-A and recorded one of the top adjusted batting lines across the entire level. According to ZiPS, he currently projects as the fourth-best position player on the Atlanta Braves. By Steamer, he’s sixth best. Both systems regard him as the organization’s second-best outfielder.

For all this, however, Ronald Acuna will probably not appear on the Braves’ Opening Day roster.

If he doesn’t, it’s possible that Atlanta will provide a legitimate baseball reason. Given the scarcity of 20-year-olds in the majors, choosing not to roster one typically doesn’t require an elaborate explanation. There were no 20-year-old qualifiers last year, for example, or the year before that or the year before that.

But Acuna is also pretty special and, as noted, already one of the best players on his own team. If Atlanta chooses to break camp without him, it’s likely due to another reason — namely, to manipulate his service time.

Because 172 days represents one big-league season of service time, a team can leave a player in the minors until he’s capable of accruing only 170 days, thus buying the club an extra year of control. If they leave Acuna at Triple-A, the Braves will hardly be the first club to do so. The Cubs did it with Kris Bryant, the Yankees appear likely to do it with Gleyber Torres. None of this is new.

What I’d like to consider here, though, is a legal argument that might compel clubs to include these players on their Opening Day rosters.

A couple of years ago, Patrick Kessock wrote an excellent article for the Boston College Law Review in which he argued that service-time manipulation was probably a violation of the CBA. The basis of his argument was that, by keeping a player in the minor leagues for the purpose of gaining an extra year of control, the team was violating what is called the “implied covenant of good faith and fair dealing.” So: what is this covenant? And, more importantly, is Kessock right?

The “implied covenant of good faith and fair dealing” is a legal doctrine governing contracts. In a case called United Steelworkers of America v. Warrior & Gulf Navigation Co., the United States Supreme Court held that a collective bargaining agreement is “more than a contract.” But we also know from a Tenth Circuit Court of Appeals case called United Steelworkers of America, etc. v. New Park Mining Co (yes, the Steelworkers have a lot of lawsuits) that “the covenant of good faith and fair dealings which must inhere in every collective bargaining contract if it is to serve its institutional purposes.”  That’s just a fancy way of saying that the covenant of good faith and fair dealing is a part of CBAs, too.

So having established that this doctrine applies, what does it mean? You’ll remember from a previous post that we talked about Restatements, books which explain the majority rules in certain areas of the law. If we look in Section 205 of the Restatement (Second) of Contracts, we find this: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” And each Restatement has what are called “comments,” which are really explanations and examples of what the rule means. The comments to Section 205 are pretty long, so I won’t reproduce them here, but they do provide a pretty useful definition, as follows:

“Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving “bad faith” because they violate community standards of decency, fairness or reasonableness.”

It’s the “justified expectations” language on which Kessock hangs his hat. Teams, after all, are supposed to compete for championships. Kessock argues that, therefore, “[t]he MLBPA can assert that its reasonable expectation is that MLB clubs will assign players to the major league roster once club executives believe that players have reached full minor league development and can help the
team compete for a championship.”  But that might not be not so clear-cut. After all, it’s also a justifiable expectation that teams are also supposed to try to win multiple championships. Therefore, gaining that extra year of control over a good player is reasonably geared more towards that goal.

But I still think Kessock is on to something here, and there might be another way to argue this using the covenant of good faith and fair dealing. Remember that minor-league players aren’t members of the MLBPA until they get called up. And that means that, by keeping a player in the minor leagues, a team is deliberately postponing a player from becoming a member of the union for the club’s own benefit. And that (arguably) could be regarded as bad faith.

It seems to me that a viable argument can be made that it is unfair to postpone a player’s entry into the union solely for a team’s pecuniary gain. Article II of the CBA states that “[t]he Clubs recognize the [MLBPA] as the sole and exclusive collective bargaining agent for all Major League Players, and individuals who may become Major League Players during the term of this Agreement, with regard to all terms and conditions of employment” (emphasis mine). I think the MLBPA could argue, based on Article II, that its justified expectations are that MLB won’t attempt to circumvent players’ pecuniary gain by keeping them out of the union, because future major leaguers were an anticipated part of the CBA.

Now, there is an obvious counterargument: since future major leaguers were an anticipated part of the CBA, they should have reasonably expected MLB teams to do something which the CBA doesn’t expressly prohibit.  And even if a player could make the argument work from a legal perspective, there are a whole host of practical problems to solve. After all, I’ve never seen a prospect without any flaws at all (especially pitchers), so proving a prospect is being kept in the minor leagues solely for service time reasons is a tall order. Even Ronald Acuna struck out in over 30% of his plate appearances in A-ball last year, providing a plausible path for the Braves to argue he needed more seasoning in the minors. Also, we’re talking here about the player filing a grievance, not a lawsuit. Grievances take a long time to resolve: Kris Bryant, who filed one in 2015 for service-time manipulation by the Cubs, was still waiting for a resolution two years later.

But, with all that said, I do think that Kessock is right: there’s at least a plausible argument to be made that service-time manipulation violates the spirit of the CBA, if not its letter. And the spirit of the CBA is what the covenant of good faith and fair dealing is designed to protect.

On Tuesday, the Major League Baseball Players Association filed a grievance against four major-league teams: Miami, Oakland, Pittsburgh, and Tampa Bay. Specifically, the MLBPA contends that these four teams are violating the collective bargaining agreement by misusing their revenue-sharing money.

To understand the implications of the union’s grievance, we have to begin with the language of the CBA itself. Article XXIV(A) of the CBA states that “[a]ny Club seeking a distribution from the Commissioner’s Discretionary Fund [that is, the revenue-sharing money] shall submit a request in writing to the Commissioner. The written request must include, but need not be limited to: (i) the amount requested; (ii) the use(s) to which the Club intends to put the requested distribution; and (iii) an explanation of how, in the Club’s view, the requested distribution should improve the Club’s performance on the field” (emphasis mine).

Later on, the CBA is even more explicit:

[E]ach Club shall use its revenue sharing receipts (including any distributions from the Commissioner’s Discretionary Fund) in an effort to improve its performance on the field. The following uses of revenue sharing receipts are not consistent with a Club’s obligation . . . to improve its performance on the field: payments to service acquisition debt or any other debt that is unrelated to past or future efforts to improve performance on the field; payments to individuals other than on-field personnel or personnel related to player development; payments to entities that do not have a direct role in improving on-field performance; and distributions to ownership that are not intended to offset tax obligations resulting from Club operations.

It’s that language on which the MLBPA is hanging its hat.

Now the MLBPA’s grievance will go before an arbitration panel, not a court. The rules of private arbitrations like this are generally set by the parties themselves. That can lead to some interesting quirks, like the fact that the commissioner himself serves as arbitrator in certain proceedings that are appeals from his own decisions (the interest-of-the-game clause and the like). In this case, the grievance hearing will be conducted in accordance with the Rules of Procedure laid out in Appendix B of the CBA.

Those Rules are pretty lengthy, so here are the pertinent bits: the legal rules of evidence don’t apply, the arbitration panel sets its own standard of proof (in other words, how much evidence one side needs to present to win), and it’s possible to avoid a hearing altogether just by both sides agreeing to submit legal briefs. Also, there are three arbitrators: one selected by the MLBPA, one selected by MLB, and a neutral third party who is usually a lawyer with some experience in conflict resolution and who serves as the panel chair. That means that, as a practical matter, it’s the panel chair who decides these cases.

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Spring training is here. It’s a new beginning! Every team has optimism for the coming season. (Well, almost every team. Sorry, Marlins fans.) But in this time of beginnings, we also have an ending. Specifically, this will be the last spring training — and the last season — with Chief Wahoo. Beginning in 2019, the Indians will no longer use the symbol on their uniforms.

In one sense, the move has seemed inevitable for a while now. Cleveland has been phasing out Chief Wahoo for years in the face of increasing public pressure from people who believe the logo is racist. I don’t intend to comment on that matter in this piece. You’re all intelligent people and can draw your own conclusions.* Instead, I’m going to focus on whether the Indians legally had to remove Wahoo and what the symbol’s removal means for other teams (like the Braves) who use Native American imagery.

*For what it’s worth, research suggests that mascots and logos such as Chief Wahoo are psychologically harmful to Native American youth.

As an initial matter, the traditional use of Chief Wahoo as a logo is generally fully protected by the First Amendment, even if certain individuals regard it as offensive. The Supreme Court has held in cases like R. A. V. v. St. Paul that it’s illegal to ban speech (which includes symbols) simply because it’s offensive. But the Indians are a business, and that makes things a little more complicated.

To take a look at this, we’re going to have to enter into an area of law known as “intellectual property”: trademarks, trade dress, copyrights, and patents. Each protects different things: trademarks protect trade names and logos; trade dress protects a certain product’s label and appearance; copyrights protect creative works; and patents protect ideas like inventions. (There’s a pretty decent overview of the differences here.) For our purposes, let’s oversimplify things and discuss the trademark that applies to both the team name and Chief Wahoo.

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Last Wednesday, a commenter named Boofer (thanks, Boofer!) asked me to look into a book by former Mets and Phillies Outfielder Lenny Dykstra called House of Nails. In said book, Dykstra claims to have hired a team of private investigators for $500,000 to look into the backgrounds of umpires and discover their dirty secrets. This is a family site, so I won’t go into any great detail about what most of those secrets are. Suffice to say, however, that they concern certain details about the umpires’ private lives, such as sex and gambling, that the umpires ostensibly wouldn’t have wanted to be made public. Dykstra says that he collected those secrets as leverage to get a better strike zone from umpires.

According to Dykstra, it worked. Consider this, from a 2015 appearance on The Herd:

For those who’d prefer not to watch the video, it’s more or less Dykstra pantomiming an at-bat during which he asks an umpire if the latter “covered the spread” on a bet the previous night and then suggesting to Colin Cowherd that he received favorable calls after having successfully conveyed his meaning to said umpire.

Regarding Dykstra’s claims, I think two questions fall within the purview of this site. First: is there any objective evidence that Dykstra benefited from a smaller strike zone than his peers? And second: if Dykstra’s claims are true, are they also illegal?

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So far, at least, Jeffrey Loria’s defense against the suit filed by Miami-Dade related to his claim of no net proceeds in his sale of the Marlins isn’t going so well. Loria’s lawyers attempted to argue that the summary they turned over to Miami-Dade was legally sufficient under the stadium contract and that no further explanation was necessary. Judge Beatrice Butchko disagreed, contending that Loria’s summary was “a problem.”

Here’s why that matters: because, on a basic level, it’s never a good sign for a defendant when the judge suggests that his case has “a problem” at the beginning of proceedings. And here’s why else: the court also vacated the previously set deadline for Miami and Miami-Dade to object to Loria’s numbers — and, more importantly, opened discovery. Which means Loria now has to start turning over his financial and supporting documents to Miami-Dade attorneys.

Earlier this month, it was announced that every major-league franchise would be extending protective netting to the ends of the dugouts on each side of the field. For some, the move is probably long overdue. Late last year, for example, a ball off the bat of Todd Frazier hit and severely injured a little girl at Yankee Stadium.  The Cubs and Major League Baseball, meanwhile, were sued last year after a fan was blinded in one eye by an errant foul ball in August at Wrigley Field. By one 2014 estimate, as many as 1,750 people per year are injured by foul balls and broken bats at baseball stadiums every year.

But the law is a tricky thing, and the extension of netting might have an unexpected result — at least insofar as the teams are concerned.

There are many sources of laws. Some are statutes. Some are federal regulations. Some are court decisions. And some law comes from what is called a “Restatement.” A Restatement is basically a book which tells us what the majority rules are in certain areas of law. For our purposes, we’re going to be referring to Chapter 17A of the Restatement (Second) of Torts. (As to why it’s not the “Second Restatement of Torts,” that is a concern beyond the scope of this piece, but it’s mostly because lawyers have an irrepressible urge to make everything unnecessarily convoluted.)

As explained in the Restatement, there exists in the law a doctrine called “assumption of the risk.” In the context of baseball, that basically means that if you sit in an area without protective netting and you know it’s a possibility that a foul ball might come your way, you can’t sue the team for getting injured by that foul ball. As one court put it in a case called Edward C. v. City of Albuquerque, a fan “must exercise ordinary care to protect himself or herself from the inherent risk of being hit by a projectile” — even if that projectile is traveling upwards of 100 mph.

There’s a really excellent write-up on this that you can read here. In short, however, this “baseball rule” represents the majority rule in the United States. If a foul ball comes your way at a ballpark, the law basically says you should have seen it coming. You’ll probably find language on your ticket saying you assume the risk of injury by foul ball, like the Yankees have on theirs.

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Editor’s Note: as Ben Lindbergh’s recent piece at The Ringer illustrates, reasonable people can disagree on the proper methodology and calculus for determining the players’ share of baseball revenue. What follows is a view based on one such interpretation.

Before he was commissioner of baseball, before he was even in baseball, Rob Manfred was a lawyer. A Harvard-trained labor lawyer, to be precise, who had a successful stint at the elite law firm of Morgan, Lewis & Bockius. In fact, he’s still a registered lawyer, with an active New York law license.

Yesterday, Commissioner Manfred held a press conference that might have made Labor Lawyer Manfred cringe.

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