Water is wet. Grass is green. Kyler Murray is a talented athlete. These are statements we know to be true. The first two aren’t especially relevant to FanGraphs, but the third one is.
In case you aren’t aware, the Oakland Athletics drafted Murray with the ninth overall pick of the most recent Major League Baseball Rule 4 draft. Back in April, before he was drafted, our own Eric Longenhagen was taken with the outfielder’s athleticism.
Evaluators see him as a crude but gifted speedster with good pop for his size who possesses more projection than most because of his athleticism. Murray is performing this year (.290/.390/.520 at publication) on the baseball field despite little prior in-game experience.
Murray was ranked 20th on FanGraphs’ 2018 Draft Board; his pre-draft report noted:
Despite [his limited playing time], he has been electric, showing even more physical ability than he had in high school and performing, slashing .290/.390/.550. He shows everything scouts could want to see after this kind of layoff and his only clear weakness is swing-and-miss against good off-speed stuff, both somewhat allowed with his power-based approach.
Take a look at that power-based approach for yourself:
— Oakland Athletics ???? (@Athletics) June 15, 2018
One MLB executive, speaking with ESPN, even dropped the ultimate praise on Murray, comparing the young player to Mike Trout. \ Kyler Murray is a young, gifted hitter with star potential despite his rawness, which is why the A’s drafted him in the first round and gave him a $4.66 million signing bonus.
What makes Murray interesting for my purposes is the fact that he isn’t just gifted at baseball. As of last Saturday, Kyler Murray is also the winner of the 2018 Heisman Trophy, awarded to the player considered the best in college football in a given year.
Saturday night, Murray won the award as the nation’s best college football player with 2,167 points over Alabama’s Tua Tagovailoa (1,871) and Ohio State’s Dwayne Haskins (783). He threw for more than 4,000 yards with 40 TDs for Oklahoma, following in Baker Mayfield’s footsteps in winning the award.
Such success on the gridiron has led to a groundswell of speculation that Murray will abandon his contract with the A’s in favor of a career in the National Football League. After all, as a quarterback, Murray’s earning potential in the NFL is greater than almost any other football position, and NFL teams sometimes award even neophyte quarterbacks massive deals. In one sense, this isn’t new. Baseball has famously had two-sport stars before. Murray’s own devotion to football was so complete that, in addition to his $4.66 million bonus, the A’s also wrote language into Murray’s contract allowing him to play his senior year as the starting quarterback for the Oklahoma Sooners. Remember that the league’s uniform player’s contract prohibits players from participating in other sports, especially ones as dangerous as football.
Further, because Murray received money from a major league baseball team while playing college football, NCAA rules barred him from playing baseball at Oklahoma. Adding language allowing Murray to play football, therefore, was hardly pro forma. Still, Billy Beane said that for Murray, being able to play another season for the Sooners was “a deal-breaker,” and the A’s thought Murray’s talent was worth some concessions.
“I think, as a staff, we just felt like Kyler was a unique talent, and it’s something that you come across rarely in what we do,” A’s scouting director Eric Kubota said. “The risk of the football was, in our opinion, outweighed by the upside on the baseball field.
“We were totally on board with his desire to play quarterback at Oklahoma. Frankly, we’re kind of excited to be an Oklahoma fan for 12 games.”
The problem is that, even after those twelve games have ended, Murray hasn’t done much to dispel the rumors that he isn’t done with football just yet. For example, speaking publicly before the Heisman ceremony, Murray told reporters that he would like to try his hand at both baseball and football.
Oklahoma quarterback Kyler Murray would like to play both football and baseball professionally “if possible,” he told reporters at a pre-Heisman media availability on Friday.
“I’d like to do both [football and baseball] if possible,” Murray said. “But I don’t know how possible that is.”
And NFL teams are openly lobbying for Murray to consider a career as a quarterback instead of an outfielder.
[Murray’s Heisman Trophy] has some NFL scouts salivating over Murray’s pro football potential. This week, ESPN draft gurus Mel Kiper Jr. and Todd McShay both suggested Murray would be a first-round pick in the NFL draft, if he pursued football.
Murray has said that, “as of now,” the plan is still to move on with baseball next month. But he has hinted recently that he’ll consider NFL overtures, as well.
Murray told Tim Tebow that he was considering changing his mind about baseball.
Murray recently was asked by Tim Tebow, who’s now in the Mets’ minor league system after being a Heisman winner and an NFL first-round pick, how he will go about choosing baseball or football.
“I think that’s something me and my family will talk about at the end of the season and weigh out the options of what the NFL thinks of me,” Murray said Saturday. “Right now my future is already kind of planned out, but we’ll see what happens.”
Comments like these have led Murray’s agent, Scott Boras (you were expecting someone else?), to try to shut down the speculation.
“Kyler has every intention of fulfilling his agreement with the A’s and he’s grateful he has had the chance to pursue his college goals,” Boras [told Susan Slusser] by phone. “He will be in spring training with the A’s.”
So Boras and his latest star client aren’t on the same page. And that led to this question being asked in Jeff Sullivan’s chat last week: what happens if Murray elects to declare for the NFL draft and reneges on his agreement with the A’s?
Let’s start with the basics. Setting aside the logistical and physical challenges, being a two-sport star is, at least right now, legally implausible. Why? Because the exception made in Murray’s A’s contract for playing other sports was for one last year of college football. The instant he sets foot on a gridiron after his college days are over, he’s in breach of his A’s contract as currently written. Now, the A’s may be so high on him that they renegotiate his contract again to allow him to play professional football, too. We don’t know. But the uniform NFL contract also has language similar to that in the MLB contract, barring players from participating in other sports. Murray would have to get both the A’s and whichever NFL team drafts him to agree on contract language, and further reach agreement on who covers injuries, and the apportionment of pro-rated salaries and benefits. There would likely be a whole host of other complex issues that would have to be resolved before we could even consider whether Murray’s body could handle the task of playing both professional baseball and football. In short, barring a miracle, Murray is going to have to choose.
And this is where Murray might run into some trouble. First, there’s the matter of his signing bonus; reports have been rather murky about what happens to that money if Murray pursues an NFL career in lieu of his A’s contract. Initially, Joe Mussatto reported that Murray would get to keep the money:
The Oakland A’s, in an unheard of agreement, allowed their first-round draft pick to play one season of college football. Not only that, but Murray inked a $4.66 million signing bonus. The money is his no matter how his baseball career begins or ends.
Then, Susan Slusser of the San Francisco Chronicle reported just the opposite:
Should Murray opt out of his contract with the A’s, he would have to repay the $4.66 million signing bonus in full. The amount is roughly equivalent to what a late first-round NFL pick might expect. Oakland, however, would not receive a compensation pick in next year’s amateur draft; that provision comes into play only when a draft pick does not sign, and Murray has done so.
And then, even more confusingly, ESPN’s Joel Anderson and Jake Trotter staked out a middle ground.
Neither Boras nor the A’s have commented specifically on the details of Murray’s contract with the club. But if he were to choose football, an MLB executive said the A’s have almost certainly protected themselves from having to pay out the full amount of Murray’s signing bonus.
“My understanding is he’s not guaranteed his whole $4.6 million — it wasn’t like a lump sum,” the executive said. “It’s completely normal, just some contract language to protect you. And even if after two years he walks away and wants to go play football, you’re responsible for only the prorated signing bonus.”
So who’s right? It’s impossible to say without seeing the contract, but I’d hazard a guess that Anderson and Trotter are the closest. Why? Because as soon as Murray walks away from the A’s, he’s in breach of his contract, and probably would be liable under contract law to return the benefit he received. Now, that obligation can be modified by the terms of the contract – it is entirely possible that the A’s could have said they guaranteed the whole payment, no matter what. But it seems unlikely, particularly given all of the concessions the A’s made with respect to Murray’s ability to play another season of college football, that the team obtained no assurances in return.
But even if Murray was guaranteed the entirety of the $4.66 million in the contract, it doesn’t mean he’d be off the hook. Depending on the contract language, he may still be legally obligated to pay back at least some of it by failing to perform his obligations. That’s because playing baseball was a fundamental assumption upon which the contract was made; in other words, the A’s agreed to pay Murray $4.66 million on the condition he play baseball for them. If he had played baseball and become injured, he at least tried in good faith to uphold his obligations, but not trying at all changes the position of the parties.
Now, there are other factors in play here, too. Remember Scott Boras? As Murray’s agent, he’s probably entitled to a share of the prospect’s signing bonus. If that money has to be returned, Murray is liable to Boras for his commission, too. Why? Boras did his job, and got Murray a contract. Should Murray walk away from the contract Boras negotiated and Murray signed, it still means that Murray owes Boras his due for the work he performed on Murray’s behalf.
But there’s one last wrinkle here – one that is less concerned with Murray and more with the NFL teams itching at the chance to draft him. It’s now public knowledge that Murray has a legally binding contract with the A’s that expressly prohibits him from playing professional football. We’ve talked before about the law that prohibits a third party from inducing a party to a contract into breaching that contract. That’s called “tortious interference with contract” or “tortious interference with prospective economic advantage.” (They’re technically different causes of action, but they’re close enough for our purposes that we can consider them together.) In other words, if, for instance, the Oakland Raiders (we’ll assume a bit of geographic serendipity here) were to draft Murray, and then, knowing that the A’s have a binding contract with him, offered him a contract anyway, and Murray were to accept the Raiders’ offer, it can be reasonably argued that the Raiders induced Murray to breach his contract based on that offer.
Now, California law contains some subtle differences from the national majority tortious interference rules. Still, the essence remains. As the California Supreme Court explained in Applied Equipment Corp. v. Litton Saudi Arabia Ltd., “[California] law imposes the obligation that every person is bound without contract to abstain from injuring the person or property of another, or infringing upon any of his rights. This duty is independent of the contract.”
The California Supreme Court explained in another case, Reeves v. Hanlon, that, “in California, the law is settled that a stranger to a contract may be liable in tort for intentionally interfering with the performance of the contract.” And Reeves is notable for its holding that, in California, a party may sue for tortious interference with an employment relationship: “it is firmly established in California that intentionally interfering with an at-will contractual relation is actionable in tort, and we perceive no legal, logical, or policy basis for restricting the availability of this tort to employees.” To me, at least, there seems to be sound footing for the A’s to file a legal action against an NFL team that successfully recruits Murray into signing a professional football contract that breaches his pre-existing contract with the A’s.
Now, that doesn’t mean that such an action would occur. Calculating damages, in particular, would be an immense undertaking, as the A’s would have to establish a dollar value for the lost services Murray would have provided (though damages would be a lot easier if Murray kept some or all of his signing bonus). There’s also the question of which state’s laws would apply; California would probably be most likely given it’s the Athletics’ home state, but it may be another state’s law for reasons too complex to explore here. At the same time, I can’t imagine that either MLB or the NFL would want the public relations headache that would occur from two franchises entering into litigation with each other. And Murray has the most to lose of anyone: would the A’s, or an NFL team, consider Murray worth suing over? Depending on what happens, it’s possible he gambles on the NFL and ends up signed by no one.
There are a lot of moving parts in this saga, and we haven’t seen the last act yet. The safest move for Kyler Murray, undoubtedly, is to play for the A’s and relish the $4.66 million he now has. Of course, that would require the famously bold phenom to play it safe.
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.