The Law of Tanking, Part One

Early this year, Dallas Mavericks owner and perpetually frustrated baseball-team-owner-of-the-future Mark Cuban, during a team dinner, said this:

“I’m probably not supposed to say this, but, like, I just had dinner with a bunch of our guys the other night, and here we are, you know, we weren’t competing for the playoffs. I was like, ‘Look, losing is our best option. [Commissioner] Adam [Silver] would hate hearing that, but I at least sat down and I explained it to them. And I explained what our plans were going to be this summer, that we’re not going to tank again. This was, like, a year-and-a-half tanking, and that was too brutal for me. But being transparent, I think that’s the key to being kind of a players owner and having stability.”

The National Basketball Association was, shall we say, peeved at Cuban, fining him $600,000. Why? Because of the implication that the Mavericks were intentionally losing games.

“Yes, it’s not what you want to hear as commissioner,” Silver told reporters at a news conference following a league meeting. “I will say that Mark has a long track record of being provocative, and… I think he acknowledged it was a poor choice of words.

“When we looked at what was actually happening on the floor, which is most important to me, there was no indication whatsoever that his players were intentionally losing games. And so we were satisfied with that, and again, and we moved on.”

Despite the resolution of that particular incident, tanking continues. In fact, the league’s fine of Cuban more or less confirmed that, while intentionally losing games is forbidden, intentionally losing seasons is acceptable — as long as no one talks about it. And while, for years, we talked about tanking as a uniquely NBA problem, that’s not the case anymore. In Major League Baseball, the tank is on.

That raises some interesting questions: under the MLB rules, is tanking legal? Is tanking legal under the law? And if it isn’t, what’s the redress? Believe it or not, these are not at all simple questions. And so we’ll start by asking a simpler question — namely, what is tanking, anyway? Royals Review gives this definition, which seems good for our purposes.

Tanking is actually the best, most proven way to win in Major League Baseball at the moment. For the fans it’s not so much fun, and for MLB it’s not so much fun either, but for the teams themselves, it’s the best way to build a championship ball club. Let’s break down the essential tanking blue print[:]

  1. Trade anyone of value on your major league roster for prospects.
  2. Save as much money as possible by using as many players that you can that are still on their first contacts. Sign cheap free agents only when absolutely necessary.
  3. Stockpile high draft picks after your team loses 100+ games for consecutive seasons and build an elite farm system.
  4. Allow prospects to develop in the minor leagues while you continue to run out fliers and AAAA players buying time.
  5. When prospects are ready, bring them up in waves and win as many games as possible until they become free agents.

The motivations for tanking are understandable. Last year, Travis Sawchik noted that we’d entered the era of the superteam. Nor does this year seem any different: the Red Sox are historically good, while the Astros, Athletics, and Yankees will all win 90-plus games. Even the Indians, who might not win 90, are waltzing to the finish a full 15 games clear of the rest of the division. The National League is weaker at the top, but we still have a Braves team cruising to an NL East victory and a Cubs team on pace for about 93-95 wins. In short, the good clubs are generally great ones… and then there’s everybody else. And whilst that does create some opportunity for borderline contenders (at least in the National League), it can also spell doom even for good teams: the Rays, who have the AL’s fifth-best record at 87-68, would lead the NL West by a half-game and occupy second place in the East, just a half-game behind Atlanta. As Neil Paine explained for Five-Thirty-Eight,

It makes sense, on paper. From a bottom-line perspective, buying wins that aren’t likely to tip a team over the threshold to making the playoffs is a poor way to maximize revenue. By concentrating instead on snagging high draft picks and rebuilding their farm systems, Houston and Chicago were able to use their picks on a procession of star prospects such as Carlos Correa, Kris Bryant, George Springer, Javier Baez, Alex Bregman … and the list goes on.

So what if a team actively tried to lose? One could argue that we’ve seen examples of that already. The 2013 Astros were the most extreme case, but teams “tank” for draft position as a natural part of rebuilding. This year’s Orioles aren’t a good example because they were trying to win (ouch), but the Marlins and White Sox held no such illusions entering the season.

On the other hand, isn’t that why Cuban was suspended — merely for observing aloud an otherwise commonplace strategy An intentional effort to maximize draft positioning requires losing, a lot, for a long period. So do the MLB rules actually allow for the intentional assembly of a subpar team for the purpose of losing a bunch of games? Or, like the NBA, do they only bar talking about it?

To answer those questions, let’s delve into that other Rulebook we like to use sometimes, the one called “Major League Rules.” If you turn to page 99, and look at Rule 21(a), you see this.

(a) MISCONDUCT IN PLAYING BASEBALL. Any player or person connected with a Club who shall promise or agree to lose, or to attempt to lose, or to fail to give his best efforts towards the winning of any baseball game with which he is or may be in any way concerned, or who shall intentionally lose or attempt to lose, or intentionally fail to give his best efforts towards the winning of any such baseball game, or who shall solicit or attempt to induce any player or person connected with a Club to lose or attempt to lose, or to fail to give his best efforts towards the winning of any baseball game with which such other player or person is or may be in any way concerned, or who, being solicited by any person, shall fail to inform the Commissioner (in the case of a player or person associated with a Major League Club) or the President of the Minor League Association (in the case of a player or person associated with an independent Minor League Club) immediately of such solicitation, and of all facts and circumstances connected therewith,
shall be declared permanently ineligible.

There’s little doubt that the players on the 2013 Astros were actively trying to win, even on their way to a 111-loss season. But that’s not all the Rule requires, because the Rule doesn’t apply only to the players. It says any player or person. To show where we’re going with this, let’s take out a few words for clarity:

(a) MISCONDUCT IN PLAYING BASEBALL. Any person connected with a Club who shall fail to give his best efforts towards the winning of any baseball game with which he is or may be in any way concerned, or who shall intentionally lose or attempt to lose, or who shall solicit or attempt to induce any player or person connected with a Club to lose or attempt to lose, shall be declared permanently ineligible.

It would seem that, according to the language used here, the front office and management of a Major League Baseball team is also bound to try its best to win games. Is a front office giving its best efforts towards the winning of a baseball game, though, if it strips it bare of major-league talent before the season begins? Or is that front office attempting to lose those games? By the plain language of the rule, it seems like tanking might actually be prohibited.

Now we come back to the question raised by the fine of Mark Cuban: is there a difference, under the rule, between trying to lose a game and trying to lose a season? On one hand, a season is just 162 individual games. On the other hand, the front office isn’t throwing games so much as intentionally creating a subpar product in order to sacrifice current wins for (at least in theory) future wins. How much of a difference does that make? We’ll find out next time.

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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4 years ago

Side note: “(a) MISCONDUCT IN PLAYING BASEBALL” section is the longest run on sentence in written history (not that legal text need be concise but my word…)

Dave T
4 years ago
Reply to  Shauncore

It is not a run-on sentence. A run-on sentence is by definition grammatically faulty by failing to include either appropriate punctuation or appropriate connecting words. A lengthy sentence that is grammatically correct, like the one in question, is not a run-on sentence.

It’s a separate question whether a lengthy sentence, even if grammatically correct, could be clearer or easier to parse as multiple shorter sentences.

4 years ago
Reply to  Dave T

I don’t know, I think it is a run on sentence, I mean, who are you, an internet commenter, to tell me, another internet commenter, what is or is not a run off sentence, as if there was any way to verify if you or I were right, because really, what even is a run on sentence when you really think about it, and I think it is, and trust me, I know a thing or two about run on sentence, Dave.

Dave T
4 years ago
Reply to  Shauncore

This response made me laugh you do know something about run-on sentences so do I.