Mike Clevinger also has pretty great shoes. They’re designed by by artist Jonathan Hrusovsky. Look at these things.
They’re not the typical flashy colors your used to seeing from @Mike_Anthony13 but just know they’re not the typical navy blue cleat either. #hrusovskyscustomkicks #customcleats #wpw #bohemianelephant #redjewel #elephant #jewels #clevelandindians @UABaseball @AngelusDirect pic.twitter.com/nfsPMrymFP
— Jonathan Hrusovsky (@JHrusovsky) May 6, 2018
Ben Zobrist is a pretty great player himself. In his age-37 season, he’s recorded a batting line about 15% better than league average. He still plays multiple positions well. He’s the eighth-best player by WAR over the last decade.
Zobrist, coincidentally, also wears custom shoes — all-black ones, as a tribute to the ballplayers of yesteryear.
In addition to their talent and taste for unique footwear, Clevinger and Zobrist have something else in common: both of them just received a written warning from MLB for violating the rules governing uniforms. Interestingly, both letters referenced MLB’s Collective Bargaining Agreement and stated that Clevinger and Zobrist were in violation of that CBA. Both letters threatened discipline if the players didn’t cease and desist wearing their custom cleats. Zobrist has already asked MLB to keep wearing them in this Instagram post:
Dear @mlb, I still like you but this is rediculous. For the last two years, I have worn black spikes exclusively at Wrigley Field for Day games to pay homage to the history of our great game, and now I am being told I will be fined and disciplined if I continue to wear them. When I was a kid, I was inspired by highlights of the greats such as Ernie Banks and Stan Musial in the 1950s-60s and was captured by the old uniforms and all black cleats with flaps. @newbalancebaseball made a kid’s dream come true by making some all black spikes with the special tongue as well as the “Benny the Jet” @pf_flyers cleats. I am curious as to why @mlb is spending time and money enforcing this now when they haven’t done it previously in the last year and beyond. I have heard nothing but compliments from fans that enjoy the “old school” look. Maybe there is some kid out there that will be inspired to look more into the history of the game by the “flexibility” that I prefer in the color of my shoes. Sincerely, Ben Zobrist
Attachment 19 of MLB’s Collective Bargaining Agreement (on page 211 of the CBA, should you be inclined to look for it) is a list of Rules governing uniforms and apparel for Major League Baseball. According to Section A of that Attachment, “No alterations, writing or illustrations, other than as authorized herein, are to be made to any part of the uniform.” And this is what the CBA says about shoes:
MLB says Zobrist violated Section G(1), because if his shoes are entirely black, then 51% if them aren’t the Cubs’ primary shoe color. On the one hand, MLB is technically correct: by letter of the Rule, Zobrist is probably in violation. On the other, Zobrist’s shoes aren’t a new development: he’s been wearing them for years without any recourse. Said Zobrist: “I am curious as to why @mlb is spending time and money enforcing this now when they haven’t done it previously in the last year and beyond.”
Of some relevance here might be a point that I addressed while examining baseball’s new mound-visit rule — namely that, for discipline to stick, a league has to follow its own rules.
We’ve seen in cases like the litigation over suspensions of Tom Brady and Adrian Peterson in the NFL (cases called, respectively, NFL Management Council v. NFL Players Ass’n and NFL Players Ass’n v. NFL), that courts follow a rule of contract construction where “the specific governs the general.” The Rules are part of the contract between the players and MLB, and, technically speaking, the specific reference to Article XI(C) might prevail over the general power of the Commissioner to discipline. And that means there is a potentially problematic precedent being set here. Discipline has to follow the agreed-upon rules or it really can be overturned on appeal. If you doubt me, remember that Ryan Braun won an appeal of a 50-game suspension on a legal technicality.
The problem for MLB is that, if it’s really true that they haven’t said a word to Zobrist for years about this and are now suddenly making it an issue, they’ve probably waived their right to enforce the Rule as it pertains to Zobrist — and possibly as it pertains to the entire League. A waiver is a voluntary relinquishment of a known legal right. But a waiver doesn’t have to be in writing or expressly made; it can be implied by conduct. So, for example, MLB’s years-long failure to raise an objection to Zobrist’s shoes probably means that, legally, they can’t enforce that Rule as to him (or anybody else) now.
As for Clevinger, MLB just says that he violated the catch-all in Section A without pointing to any specific portion of Subsection G. And that’s for a very good reason: it’s hard to see how he violated anything in Section G. Clevinger, too, bristled at the idea of surrendering his floral footwear. “There’s no hitter that makes it to the big leagues that a cleat is going to distract him,” Clevinger told the media Friday. “If the hitter’s looking at my cleat while I’m pitching, he’s not hitting.” The primary color of Clevinger’s shoes is evenly distributed, and the laces and flaps are pretty tame. Further, the primary color, red, does seem to match the Indians’ uniforms.
To be fair, Article II of Attachment 19 does say this:
In addition, no Player or Club may attach or otherwise affix or embroider to any portion of the uniform (including the cap and the helmet, batter and catcher) or playing equipment (including gloves), any pins, flags, commemorative patches, decals or other items, unless authorized by the Office of the Commissioner, which shall consult with the Players Association on such matters in advance of such authorization. A Player may not write, attach, affix, embroider or otherwise display nicknames or messages on apparel or playing equipment, except that a Player may display: (a) his name and/or uniform number on fielding gloves, footwear, batting gloves, wristbands, elbow protectors, shin/ankle protectors and catcher’s equipment; and (b) a nickname on fielding gloves or catcher’s equipment, provided that the nickname is not visible during games and is not reasonably likely to offend fans, business partners, Players, and others associated with the game.
But that doesn’t, at least to my reading, outright ban designs on shoes. In fact, the plain language of the Rule in fact allows for custom footwear because, read together, a Player can display his name and number on his shoes in a design of his choice so long as 51% of the shoe comports with those of his teammates.
The other problem for MLB here is that Section G(2) makes shoe design the province of the team, not MLB. And that matters because, technically, so long as the Cubs and Indians determine in their discretion that the cleats are “compatible” with their uniforms, they haven’t broken the Rules. In both cases, here, the teams seem to have signed off. Joe Maddon certainly has for Zobrist:
“I love the shoes that he’s wearing, and the reason that he gave is outstanding,” Maddon said. “You know him. If that’s coming out of his mouth, it’s legit. He was doing that to bring back the history of the game. Hopefully, kids are watching. Those are the kind of things your kids are looking for, and I’m right on board with it — absolutely.”
To put it another way, nothing in the Rules requires all player shoes to be identical to each other. Instead, they just have to be 51% identical. In light of that, MLB appears to be taking a stand on rather shaky legal ground. If MLB were to discipline Zobrist or Clevinger for this — and, under Section O, MLB can fine or even suspend a player for violating the uniform code — both players would have a really good shot at winning outright in an appeal.
So why is MLB dying on this particular hill? MLB has lawyers, and good ones. They have to know it’s a questionable stand to take, especially from a public-relations perspective. In this case, the matter isn’t probably about the actual shoes. And here’s an indication of that: MLB released this statement about their letters to Zobrist and Clevinger:
We have shoe regulations that were negotiated with the union in the last round of bargaining. If players have complaints about the regulations, they should contact their union which negotiated them. We have informed the union that we are prepared to negotiate rules providing players with more flexibility, and that issue is currently being discussed as part of a larger discussion about apparel and equipment.
Notice the key wording here: “If players have complaints about the regulations, they should contact their union which negotiated them.” That’s language targeted at an issue wholly different than footwear. It’s no secret that relations between the MLBPA and the League aren’t too cozy right now, owing largely to this past offseason. That came to a head a few weeks ago, when the MLBPA filed a grievance against four teams over the sluggish offseason. Since then, the players voted down a change in the All-Star voting. This, quite possibly, is MLB’s response, the implication being that, if the MLBPA is going to hold teams to the letter of the CBA, then the League will hold players to the letter of the CBA.
There’s also possibly a more cynical play here: MLB might be trying to foist the blame for the players’ complaints about the CBA onto the MLBPA. And this sort of tit-for-tat is worrisome — both because it hints at approaching labor unrest and because it shows the acrimony between the parties is accelerating. In short, MLB and the MLBPA are playing a game of chicken, and MLB expects the Union to cave.
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.