Late last year, news broke that Major League Baseball had reached an agreement for players to leave Cuba using a posting system similar to that which exists between MLB and the Japanese NPB or the Korean KBO.
Major League Baseball, its players’ association and the Cuban Baseball Federation reached an agreement that will allow players from the island to sign big league contracts without defecting, an effort to eliminate the dangerous trafficking that had gone on for decades.
The agreement, which runs through Oct. 31, 2021, allows Cubans to sign under rules similar to those for players under contract to clubs in Japan, South Korea and Taiwan.
While the proposed agreement generated a great deal of excitement at the prospect of a boon of talented Cubans coming to the majors, I wrote at the time that a good deal of caution was warranted given that the United States government considered the Cuban Baseball Federation (“FCB”) to be covered by the decades-old trade embargo.
There’s just one problem: the FCB is an arm of the Cuban government, and has even been run by Fidel Castro’s son, who served as its vice president. This agreement means that MLB, an American business entity, would be paying money to an unofficial arm of the Cuban government. Because of the United States’ trade embargo, which remains in effect, it’s questionable at best whether this arrangement will survive legal scrutiny.
Last week, the Trump administration blocked the agreement from taking effect for exactly that reason.
The thrust of the government's argument, as laid out in a letter from Treasury Dept. to MLB obtained by ESPN: "A payment to the Cuban Baseball Federation is a payment to the Cuban government." U.S. government sees the CBF as an arm of the Cuban government. Deal nixed accordingly. pic.twitter.com/oQhtn2R9gw
— Jeff Passan (@JeffPassan) April 8, 2019
The White House and members of Congress took the position that the proposal “amounts to paying the Cuban government ransom for baseball players.”
“The U.S. does not support actions that would institutionalize a system by which a Cuban government entity garnishes the wages of hard-working athletes who simply seek to live and compete in a free society,” said Garrett Marquis, a National Security Council spokesman. Marquis said the administration will work with MLB “to identify ways for Cuban players to have the individual freedom to benefit from their talents, and not as property of the Cuban State.”
Other prominent figures in the administration agreed with Marquis, and added concern for the current unrest in Venezuela.
Cuba wants to use baseball players as economic pawns – selling their rights to Major League Baseball. America’s national pastime should not enable the Cuban regime‘s support for Maduro in Venezuela.
— John Bolton (@AmbJohnBolton) April 7, 2019
And Senator Marco Rubio (R-FL), another prominent critic of the deal, applauded the decision to block it.
Regime cut a deal with baseball to allow players to leave, but only if MLB pays them a ransom
In essence they want legalized trafficking of persons
— Marco Rubio (@marcorubio) April 8, 2019
For its part, the FCB, and a number of prominent Cuban political figures, disagreed.
The agreement with #MLB seeks to stop the trafficking of human beings, encourage cooperation and raise the level of baseball. Any contrary idea is false news. Attacks with political motivation against the agreement achieved harm the athletes, their families and the fans pic.twitter.com/7d3Feu26kB
— Federación Cubana de Béisbol (@CubanaBeisbol) April 8, 2019
Many in #Cuba and #US disagree with Trump's decision. The Engage Cuba coalition said today that the decision of the Donald Trump Administration to overturn deal between Major League Baseball? and Caribbean country is a cynical, cruel and gratuitous act. #SomosCuba pic.twitter.com/dFZRnc1IyL
— Miguel Díaz-Canel Bermúdez (@DiazCanelB) April 9, 2019
And while the deal’s critics raised a noble sentiment, it’s difficult to ascertain how striking down the proposed accord actually furthers accomplishing those goals. Earlier this month, for example, the FCB released a list of 34 players who, under the agreement, were eligible to play in the United States without penalty for themselves or their families – and, most notably, without the need to defect or be smuggled off of the island by human traffickers. So even if Rubio is correct that the deal amounted to legal human trafficking, its absence does not stop illegal human trafficking, including the extraordinarily dangerous methods Cubans currently use to escape the island. In other words, canceling the deal made human trafficking worse, not better.
— Dan Wolken (@DanWolken) April 9, 2019
That was the consensus across baseball as well: by scuttling the deal, the Trump administration made it more difficult for Cubans to leave the island to pursue baseball careers, by leaving in place a system that leaves illegal and dangerous human trafficking as players’ only means off of the island. Major League Baseball itself noted that the goal of the agreement was to end human trafficking.
Statement from @MLB on now suspended deal with Cuba: “We stand by the goal of the agreement, which is to end the human trafficking of baseball players from Cuba.”
— Patrick Oppmann CNN (@CNN_Oppmann) April 8, 2019
Included in the letter to the government from MLB were the tales of Yasiel Puig, Jose Abreu, Yoenis Cespedes, Leonys Martin and Yunel Escobar after they left Cuba — ones the deal was supposed to end. The human-trafficking horror stories did nothing to sway Trump Administration.
— Jeff Passan (@JeffPassan) April 8, 2019
And prominent figures across baseball also weighed in, echoing the idea that the failure of the deal would leave in place a far worse system.
Cesar Geronimo Jr., the director of Latin America scouting for the Diamondbacks, echoed his disappointment for future Cuban players when reached by phone Tuesday. . . .
“For the Cubans it’s very hard for them to get out of Cuba and sign as an amateur,” Geronimo said. “The hardship they go through is hard … It makes (scouting) a little more difficult. It is difficult just seeing the talent. A lot of Cuban players are coming through Latin America right now; I don’t know if they’re the top guys but they’re there. They have ways of getting out of Cuba, but it’s always difficult.
“It’s disappointing to the Cuban players. It’s disappointing to them because they’re trying to get a better life and a better future. Now that this happened, their hope is dying. That’s the only way I see it.”
Aroldis Chapman prefaced his comments by saying it was “a sensitive subject,’’ discussing the current White House administration’s stance against Cuban baseball players’ entry into Major League Baseball.
“I just feel bad for those young ballplayers who are probably not going to have the same chance to play here,’’ the Yankees closer said through an interpreter Monday.
* * *
“The way we got here was, it was tough to say the least,’’ Chapman said of the Cuban defectors who sought to play in the majors.
And local leaders agreed as well. Juan Francisco Puello, the president of the Confederation of Professional Baseball of the Caribbean (CBPC), also mentioned human trafficking as an impetus for restoring the deal: “You cannot traffic with the dignity of the human being, with that you should not play.”
But it’s frankly hard to see how MLB gets around this problem any time soon. The Cuban government has thus far shown little interest in allowing players to leave willingly absent an agreement like this one, and the Trump administration won’t allow an agreement to take effect so long as the embargo stays in place. A new administration might take a different view, but that’s entirely speculative at this point. And given the President’s broad power in areas concerning national security and foreign relations, it’s unlikely MLB could win a court challenge to the administration’s actions. For better or worse, a legal talent pipeline from Cuba to the United States is, right now, just about dead.
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.