The Dodgers Might Be in Actual Legal Trouble

Last week, we talked about a federal grand jury probe currently investigating Major League Baseball’s activity in Latin America. At the time, it appeared that the signing of Hector Olivera seemed to be a significant part of that investigation. Thanks to Carl Prine and Jon Wertheim of Sports Illustrated, we now have a much better idea of the matters at which that grand jury is looking.

Collectively, the documents [provided to the Grand Jury] offer a vivid window into both this netherworld and the thermodynamics of the operation: How Caribbean smugglers traffic Cuban nationals to American soil, using third-country way stations. How the underground pipeline ferries Cuban players to stash houses in countries like Haiti and Mexico before they can seek lucrative contracts with MLB clubs. How teams interact with buscones, the unregulated street-level agents who often take a financial stake in Latin American players.

The dossier given to the FBI suggests the extent to which some MLB personnel are aware of—and brazenly discuss—this unscrupulous culture and the potential for corruption. While both the league office and other teams are mentioned in the files obtained by SI, the Los Angeles Dodgers, a franchise with extensive scouting and development operations in the Caribbean, figure most prominently in the dossier[.]

Prine and Wertheim provide a detailed piece that’s is worth your time. Whitney McIntosh also published a helpful summary of their work for SBNation. A couple of interesting points jump out of their reporting, however. First, the Grand Jury and FBI are already evidently receiving at least some cooperation from important witnesses.

SI has learned that multiple alleged victims of smuggling and human trafficking operations have already given evidence to law enforcement agents or testified before a federal grand jury.

Second is that the Dodgers are evidently a prime target of the probe.

One particularly remarkable document shows that Dodgers executives in 2015 went so far as to develop a database that measured the perceived “level of egregious behavior” displayed by 15 of their own employees in Latin America. That is, using a scale of 1 to 5—“innocent bystander” to “criminal”—front-office executives assessed their own staff’s level of corruption. Five employees garnered a “criminal” rating.

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Internal communications by the Dodgers show concerns about what team officials called a “mafia” entrenched in their operations in the Caribbean and Venezuela, including a key employee who dealt “with the agents and buscones” and was “unbelievably corrupt.” Other personnel were suspected of being tied to “altered books” or “shady dealings,” according to the documents.

We can all agree that analytics are wonderfully useful. For those who have plans of participating in international organized crime, however, please note that crafting charts to depict one’s level of criminality is unwise — as is openly discussing one’s own personal mafia.

Returning to the report, though, it succeeds at providing a better sense of the Grand Jury’s focus — and, for the Dodgers, it’s not good. Much of the initial reporting in the wake of the SI report has focused on what sanctions the Dodgers are likely to receive from Major League Baseball, which are almost certainly coming.

[T]he dossier includes a transcript of a Nov. 21, 2015, text message conversation between two Dodgers executives in which they discuss the need to “shred” a contract signed with a player before MLB had approved the document. There are also indications that dates on other official documents were doctored before they were forwarded to the MLB office.

At the same time, I’d argue that such concerns miss the point. We know that the Grand Jury was looking at potential violations of the Foreign Corrupt Practices Act, which carries mandatory fines and prison time for violations. For the Dodgers, written acknowledgement of the criminality in which they were involved is probably not great news for any defense predicated on lack of knowledge (which might not work for the FCPA anyway, given it doesn’t require actual knowledge by a defendant to obtain a conviction). If the reporting is accurate, the Grand Jury probably has more than enough to issue several indictments for FCPA violations. But what is described in the SI piece also comes dangerously close to a violation of a law called the Racketeer Influenced and Corrupt Organizations Act (“RICO”), a law which allows for prosecution of an entire company or enterprise instead of each person involved individually.

To violate RICO, a person must engage in a pattern of racketeering activity connected to an enterprise. The law defines 35 offenses as constituting racketeering, including gambling, murder, kidnapping, arson, drug dealing, bribery. Significantly, mail and wire fraud are included on the list. These crimes are known as “predicate” offenses. To charge under RICO, at least two predicate crimes within 10 years must have been committed through the enterprise.

Note that an enterprise is required. This might be a crime family, a street gang or a drug cartel. But it may also be a corporation, a political party, or a managed care company. The enterprise just has to be a discrete entity; but an enterprise is not the same as an individual. Thus, a corporation may be the enterprise through which individuals commit crimes, but it can’t be both an individual and the enterprise.

The human trafficking described in the SI piece is probably enough to constitute a predicate offense for purposes of RICO, and RICO carries stiffer penalties (20-year prison sentences) than even the FCPA does. What do we mean by human trafficking? For most people, the term denotes the illegal kidnapping and sale of people for sex. And while that’s part of it, the practice is used to other ends, as well. Human trafficking is, at the most basic level, the trade of humans, smuggling them from place to place for labor, sex, or money.

We’ve known for some time baseball has a significant human-trafficking problem, particularly for Cuban players. The most high-profile case is probably Yasiel Puig’s.

In recent years, some Major League Baseball players have revealed that a variety of criminals have been kidnapping and extorting talented Cuban players before they can get a major league contract — in order to get a cut of their future earnings. Some of these traffickers may even have ties to Mexican cartels.

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Cuban-born Los Angeles Dodgers star Yasiel Puig became the poster boy for ballplayer trafficking. In his journey to the United States, Puig was kidnapped and extorted — and some of the traffickers he was involved with have even resorted to murder as they try to get a share of his salary. Puig’s lurid story, and his stature as a star, have brought the trafficking issue to the attention of baseball commentators.

Leonys Martin was also effectively kidnapped on his way to professional ball:

Horror stories abound—including that of Leonys Martin, a Seattle Mariners outfielder who was reportedly held hostage in Mexico for months before promising to pay his captors a portion of his salary. Martin did not keep that pledge, and when the smugglers attempted to sue him, they found themselves facing criminal charges.

Unfortunately, human trafficking in baseball players from Latin America didn’t end with Martin or Puig. Bart Hernandez and Julio Estrada were convicted of human trafficking for their role in Martin’s kidnapping, but the practice continues.

It seems unlikely the Grand Jury would settle for merely indicting the Los Angeles Dodgers as an organization — although that’s certainly possible. So who is the target? That depends, of course, on when the illegal acts occurred. One possibility is that involved members of the Dodgers’ international scouting department who were terminated in 2015, a year after president of baseball operations Andrew Friedman assumed command. That shakeup was fairly comprehensive: the team fired vice president Bob Engle, scouting coordinators Patrick Guerrero and Franklin Taveras, and several others. But even if that’s true, Friedman may very well still be on the hook if he (a) was aware of the activity but (b) didn’t immediately notify authorities. There’s also the fact that these employees were present for a full year after Friedman took over, and I doubt a prosecutor will be sympathetic to the argument that it was necessary to retain the services of known criminals in order to sign some free agents. Plus, the Dodgers’ internal communications cited in the SI story regarding illegal activity were from 2015 and 2016, after the Dodgers cleaned house.

In other words, for current and former Dodgers employees — including people like Gabe Kapler (who ran the Dodgers’ player development system from 2014 through 2016) and Friedman — getting banned from baseball may end up being a best-case scenario depending on the extent of their involvement and whether they knew or should have known about the illegality going on in their operations.

It’s also worth noting that the Dodgers are evidently not the only target of the probe.

Among the witnesses already subpoenaed: player development staffers with ties to the Atlanta Braves, and Manny Paula, a certified agent and cofounder of the MVP Sports Management and Consulting Agency. No charges are known to have been filed. Reached by telephone, Paula—who is not believed to be a target of the probe, but rather a -victim—said that he received a subpoena and complied with it; he referred all other questions to his Pittsburgh-based attorney, Jay Reisinger, who declined to comment. (The Braves also declined to comment; last November, MLB issued a lifetime ban to their former GM John Coppolella for violating the rules that govern international signings.) In addition to Paula, two other sources confirmed the ongoing investigation, including one who provided evidence to federal prosecutors.

Perhaps most interestingly, right now Major League Baseball is not cooperating with the investigation — because they aren’t being involved in it.

Schindler, the Dodgers’ outside counsel, wrote in an email that he had “no knowledge” of any such investigation. For its part, MLB was playing catchup. When reached by SI, spokesman Pat Courtney said, “Major League Baseball has not been contacted by federal authorities regarding an investigation.” That will likely change soon.

That might well be no cause for alarm at all. On the other hand, it also means that MLB was probably not approached about cooperating, which may also indicate that MLB’s own front office is under investigation. If so, the ramifications of this case could quickly spread well beyond the Dodgers.