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?
As for the first question, I’ll leave that to the authors at this site whose analytical ability far outstrips my own. Dykstra’s walk rate did jump from 10.2% to 16.7% between 1992 and -93 — that is, when he says he began using his PI. To what degree that’s reflects a substantive change, however, I’m not prepared to say. Instead, because I assume this is what Boofer wanted, I’m going to take a look at whether, assuming it’s true, what Dykstra did is illegal.
This topic is particularly interesting because it requires us to hop in our wayback machines and answer Boofer’s question based on what the law was in 1993. That’s because, under most circumstances — and remember, in the law, there are always exceptions — you can’t be held liable for something that wasn’t illegal at the time it occurred.
We’ll also have to make some assumptions based on an incomplete set of facts. For our purposes, I’m going to look solely at Dykstra and not his PI, and assume that the PI in question was fully licensed and did nothing objectively illegal in the course of investigating the umpires. That’s obviously a big assumption, but this is a baseball site. As such, I’m assuming that Boofer is more interested in Lenny Dykstra than in Lenny Dykstra’s PI. Finally, we’ll also assume that none of what Dykstra’s PI found was already public knowledge.
With all that said, let’s start with the word used by Boofer in his question. Is what Dykstra did “blackmail”? Legally, blackmail and extortion are actually two slightly different things, but they’re close enough to each other that we can cover them together. Most states and the federal government have a blackmail and/or extortion statute. The statutes vary a bit from jurisdiction to jurisdiction. The federal government bans extortion, which is similar but not identical to blackmail, under a law called the Hobbs Act. Blackmail is a federal crime under 18 U.S.C. 873. For our purposes, we can oversimplify and say that extortion is the act of receiving something of value because you threatened a person that you would disclose something, while blackmail is the act of demanding something of value in exchange for not disclosing that something. An easy way to remember this is that extortion is a type of theft.
Now, here, we’ve already run into our first problem. There’s no doubt that Dykstra was basically threatening to disclose something if he didn’t get the calls he liked behind the plate. But now we have to determine if a modified strike zone can legally be something of value. If the umpires were handing Dykstra $100 bills in exchange for his silence, then sure, that can be extortion. But can a strike call changed to a ball call be a thing of value?
On the one hand, Dykstra was trying to amp up his numbers to land a bigger contract, and that bigger contract is something of value. But the contract wasn’t coming from the umpires, and it’s the umpires Dykstra was threatening. From the umpires, Dykstra just wanted a smaller strike zone. And the Supreme Court held in a case called Sekhar v. United States that, in order to be a thing of value for extortion purposes, that thing you’re demanding or receiving must be transferable property. In other words, you have to be able to buy it or sell it or give it to somebody else.
But wait! Sekhar was decided in 2013. Remember: we must apply the law as it was in 1993. So we turn instead to a 1986 case called United States v. Schwartz, wherein the Ninth Circuit Court of Appeals held that a thing of value included intangible things as well, which might well be broad enough to include a strike zone. And this presents an interesting conundrum where, theoretically, Dykstra could have been prosecuted for extortion in 1993 but not after 2013. And (depending on whether or not Sekhar is considered retroactive, which is a discussion way beyond the scope of this post), even if Dykstra were tried and convicted back in 1993, Sekhar means that conviction may well be vacated anyway. (Oh, and Schwartz was later overruled anyway on different grounds.)
Which means we’re back to Sekhar again. Now, admittedly, the lawyer in me would be fascinated with trying to see a prosecutor prove that a ball call or a walk is a thing of value for legal purposes. But the reality is that you can’t transfer ownership of a ball call. So, in all likelihood, after Sekhar, this isn’t technically extortion or blackmail.
That said, even if Dykstra wasn’t guilty of extortion or blackmail, he’s also not totally off the hook. Even if what Dykstra did isn’t a crime (and it still might be under anti-intimidation statutes like this one), lots of things are illegal that aren’t crimes. By and large, that’s what the civil justice system is for.
The law does protect private citizens from the unlawful disclosure of private facts, even if those facts are true. These are torts like invasion of privacy, or public disclosure of private facts (which, as a 1981 case called Gilbert v. Medical Economics Co. explains, is a real cause of action). Although invasion of privacy torts are generally really hard to prove against public figures, umpires aren’t public figures to the same degree players are, so umpires have more legal protections when it comes to their private lives. And Dykstra neglected a crucial fact when he was making his threats to the umpire at home plate: presumably, the other team’s catcher was sitting right there. So every time Dykstra would disclose a private fact to the umpire in the presence of the catcher, he was probably committing tortious disclosure of private facts.
If Dykstra happened to be wrong about the umpire’s vice, then depending on what, exactly, he said to the umpire, he could have an even bigger problem. There’s a special kind of defamation called defamation per se that results when you accuse someone falsely of breaking the law or of certain sexual proclivities (which, again, family site). Defamation per se basically means what you said is so egregious that the law assumes your victim was damaged by it. All that would be necessary to prove defamation per se besides the statement itself is the presence of a third party — and there’s that pesky catcher again. So if the umpires wanted to, they could have sued Dykstra for a whole boatload of privacy torts.
Now, the statute of limitations on stuff like this varies from jurisdiction to jurisdiction. Without a knowledge of the exact details, I can’t say for sure whether it’s lapsed everywhere or not. Dykstra would have been traveling around the country, after all, so there could be several different statutes of limitations in play. But, Boofer, if you were wondering whether what Dykstra did was legal, now you have your answer.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.