The Astros Were Caught Doing… Something

Before the Astros were dispatched from the playoffs by a changed-up David Price, before Jose Altuve was robbed of a home run by Mookie Betts and possibly Joe West, there was a kerfuffle in the Red Sox-Astros League Championship Series — a kerfuffle involving, of all things, a camera, trickery, and a media credential. Per Dan Shaughnessy:

The 2018 American League Championship Series took on a new dimension at Minute Maid Park this week when the Boston Metro first reported that a guy with a camera working for the Astros was kicked out of the photographer’s well by the first base dugout at Fenway Park during Game 1. Turns out the same guy got the heave-ho in Cleveland when the ’Stros were beating up on the Tribe in the Division Series.

MLB investigated, and then explained:

In other words, the Astros were surveilling the Red Sox to make sure that the Red Sox weren’t surveilling the Astros. That has something of the absurd about it, but who knows? Maybe that is, in fact, what happened.

But there are a lot of unanswered questions. The first is why the Astros used Kyle McLaughlin, a friend of Astros’ owner Jim Crane but not an Astros employee, to monitor the BoSox. And second, MLB conspicuously didn’t address that this wasn’t the first time this postseason that McLaughlin had been caught monitoring an opposing team with his cell phone; he was doing the same to the Indians during the Division Series. Jeff Passan had a typically excellent explanation of the questions MLB’s lack of action left in its wake.

The league offering Houston the free pass enraged executives around baseball, who reached out to Yahoo Sports trying to understand the rationale. If the Astros were allowed to monitor another team’s dugout in-game without penalty, one wondered, shouldn’t every team be allowed to do the same? If the Astros were so concerned with opponents’ nefariousness, another said, why did they send a kid in his early 20s whose role with the team is opaque and not simply request MLB send a security professional to examine the dugout from the same spot and ensure everything is above board? Most of all, taking at face value the Astros’ explanation for using McLaughlin, if there is a rule forbidding in-game technology to help steal signs, why is a team allowed to use in-game technology to investigate whether its opponent is illegally stealing signs?

We can answer at least a couple of Passan’s questions here. First, there is no official rule that bars sign-stealing. There’s no such provision in the Major League Rules, and there’s no such rule in the Official Baseball Rules. There’s also no provision in either concerning the use of technology to monitor another team. In short, there isn’t a rule covering this. David Schoenfield summarized the state of the rules in this area last year, after the Red Sox and Yankees famously tangled over the Apple Watch incident.

It is not illegal to steal signs. There is no rule against it, and certain players and coaches excel at the art. There is, however, a directive dating to 2001 that prohibits the use of electronic devices in the dugout or the use of binoculars. The use of the Apple Watch would clearly violate this directive.

That directive, it should be noted, isn’t publicly available, so we don’t know what its scope is. But MLB hasn’t exactly clamped down on the use of binoculars since then — and note that Schoenfield says that the Apple Watch in the dugout violated the directive. That’s because the directive evidently concerns the use of electronic devices in the dugout. McLaughlin, of course, was not in the dugout. So it is entirely possible — and I’d even say probable — that there isn’t technically a rule against what McLaughlin did, which explains MLB’s decision to wave it away.

There are two problems with this resolution, however. First, there’s no clear line regarding what use of electronics is and isn’t permissible — besides, perhaps, inside the dugout walls. That can lead to uncomfortable situations, like this one earlier this year in which the Astros found themselves on the other side of the issue.

An Astros official confronted a Yankees employee operating a high-tech camera during their late-May series at Yankee Stadium, leveling a charge of cheating and threatening that the culprit would be barred from working in the major leagues for life.

The matter was quickly defused when the Yankees proved that the Commissioner’s Office already had given its blessing for use of the camera.

And what about non-electronic means?

This is not the first investigation into the Astros’ attempts to gain competitive advantages this season, three sources told Yahoo Sports. During a late-August game against Oakland, A’s players noticed Astros players clapping in the dugout before pitches and believed they were relaying stolen signs to pitchers in the batter’s box, sources said. The A’s called the league, which said it would investigate the matter. It’s unclear what the result of the investigation was or whether it remains ongoing. Two major league players said they have witnessed the Astros hitting a trash can in the dugout in recent years and believe it is a way to relay signals to hitters. The Los Angeles Dodgers also believed the Astros were stealing signs during the World Series last season, according to two sources.

Remember, however, that there is no rule against sign-stealing generally. And that means that so long as the clapping or trash can signals were non-electronic, the Astros are technically not violating any rules. And that leads us to the second problem with MLB’s ruling: McLaughlin arguably broke the law. That’s because of something called a license. Not the driver’s license kind. It’s something else.

In the British common law (and, again, this oversimplifies things), there are many different types of ways to legally enter real property. Most often, you think of leases (when you rent a property, or essentially “buy” the right to possess that property for a limited period). But there’s a more limited type of access right called a “license.” Essentially, a license is when an owner allows you a short-term access to a property for a limited purpose. When you go to the movie theater and buy a ticket, you’ve purchased a license to be present for the duration of the movie. It’s similar with a baseball game: by buying a ticket, you purchase the right to be present in the stadium for the duration of the baseball game. If you were to get in without the license (i.e., without buying a ticket), you’d be trespassing. If you stay afterwards to build a yurt, you’re also trespassing, because the license doesn’t allow you to build a yurt whilst there. A media credential is similar. With it, a writer or photographer can do their job. What they can’t do is build a yurt.

Now, there are a few things that a license allows. It allows you to watch the game, of course, but it isn’t limited to just that. It allows you to eat, and use the washroom, and walk around the stadium. But there are limitations on what you can do while there, and it’s reasonable to assume that espionage isn’t one of them. In other words, it’s likely a violation of the license agreement to enter the stadium and begin recording the game for the purposes of relaying data to one of the dugouts.

It’s not, of course, that simple. Teams allow advance scouts into games, for instance, and they aren’t exactly there for pleasure (although watching a baseball game is undoubtedly pleasurable). But at the same time, advance scouts aren’t directly impacting the game they are watching. (I am well aware that this is not the case at the quantum level.) Instead, advance scouts are watching the game like you and I are; they are just recording the information differently. McLaughlin, on the other hand, wasn’t there to watch the game, and he wasn’t a team employee. In theory, then, he was just a trespasser.

I highly doubt that the Red Sox or Indians will press charges. But it is something about which teams should be cognizant. There is a line past which surveillance of an opponent may well become illegal, depending on who the spy is and where they are situated. The Astros may have gotten lucky this time.

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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.

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The Guru
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The Guru

interesting. handsomeboymodel called it in the other article. mlb’s version of the patriots spygate.