Trevor Bauer, CIA Nanites, and Remedies for Misunderstood Satire

by
August 22, 2018

Trevor Bauer has been probably Cleveland’s best starting pitcher this year. In his long-awaited breakout, Bauer has racked up 5.9 WAR in just 166 innings on the back of a 51 ERA- and 57 FIP-. His peripherals fully support his performance: a 31.5% strikeout rate and 23.2-point K-BB% are nothing short of elite. His fastball, curveball, cutter, slider, and changeup, meanwhile, have all been well above-average offerings by pitch values. In other words, Bauer’s been Cleveland’s ace, and that’s no small feat on a team with Corey Kluber and Carlos Carrasco.

So it was a pretty significant blow last week when Bauer suffered a stress fracture in his right leg, the result of being hit with a line drive off the bat of White Sox slugger Jose Abreu.

Bauer is without a firm timetable to return. He also has a history of proposing novel and ill-advised medical procedures like sealing a cut with a soldering iron. The combination of those facts led Michael Baumann, writer for the Ringer, to tweet this.

This is a joke. Colloidal silver is the quintessential snake oil, with no efficacy for treating diseases and potentially serious side effects ranging from skin discoloration (as in, you turn blue) to organ failure. Still, it continues to be marketed as a treatment or cure for the common cold, despite that advertising likely being illegal. In short, colloidal silver is quackery, and as Baumann related later, he assumed we’d know that and get the joke.

I assumed that my joke about Bauer using blood transfusions and colloidal silver to cure his injured fibula was so ridiculous it would be impossible to mistake it for actual serious reporting.

Never underestimate the capacity of humanity to prove your assumptions wrong.

That is a screenshot, but there’s also video in which MLB Network reports with grave seriousness that Trevor Bauer is pursuing a treatment plan of colloidal silver. I, too, would be gravely concerned if a baseball pitcher were at risk of looking like a smurf.

In any event, Bauer responded fairly quickly.

Baumann, too, was understandably displeased.

Despite Bauer’s protestations, he probably can’t do much about this legally. We went over this in some detail when we talked about Juan Soto, but since Trevor Bauer is a public figure, for him to prove that MLB Network or ESPN defamed him, he has to plead and prove that they acted with “actual malice” — that is, they either knew it was false or acted with what’s called “reckless disregard” for the truth — essentially, that they themselves had subjective doubts about the statement’s veracity and chose to ignore them.

That would be almost impossible to prove by itself, but there’s another problem. Ordinarily, repeating someone else’s false statement is actionable defamation; it’s called the “republication rule,” and it’s designed to ensure that someone doesn’t have the ability to freely repeat a false statement stated by someone else. However, under a case called Stoneking v. Briggs out of California, reporters generally aren’t liable for repeating a statement made by another with the intent that it be republished. Now, clearly Baumann didn’t intend that his statement be republished as fact, but Tweets are clearly intended to be republished no matter the context — hence the “retweet” option.

So it seems pretty clear that despite Bauer’s demand for an apology and statement that the report was “damaging,” he doesn’t have a whole lot of recourse here. MLB Network may have done something pretty stupid, but it probably wasn’t defamatory. And ordinarily that would be the end of this story — and this article — except that, after MLB Network aired its retraction, ESPN went back and found it had never actually aired the tweet in the first place. Via Paul Hoynes:

An ESPN spokesman said Monday that it found no evidence that it ever used the tweet.

“Erroneously, some people believed it was on ESPN,” said David Scott of ESPN’s public relations department. “We have no evidence of that.”

As it turns out, ESPN never aired or reported on Baumann’s tweet at all. Of course, the irony is that Bauer didn’t just say ESPN had aired it — he claimed to have seen it on ESPN’s crawl. And that led to this apology from Bauer:

You can watch the video for yourself, but, per Hoynes, Bauer says that “he was told by friends and Twitter followers that MLB Network and ESPN both aired the fake tweet.” The problem is that Bauer said in his original tweet that he saw ESPN report it on the crawl, which obviously was false because it never happened. And that is a statement made with knowledge of its falsity. Companies, after all, can sue for defamation under a cause of action called “commercial disparagement.”

In other words, after Michael Baumann tweeted a joke about Trevor Bauer using colloidal silver to treat his stress fracture, which MLB Network picked up and ran as a real event, the only plausible legal claim is ESPN suing Bauer for falsely stating that ESPN reported the tweet. Alanis Morissette might have a word to say about that.





 

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.

51 Comments
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Yirmiyahu
5 years ago

“I’ve got one hand in my pocket, and the other one is holding a bloody baseball” ?

49
shaq_diesel
5 years ago
Reply to  Yirmiyahu

You’ve already won me over.

9
attgig
5 years ago
Reply to  Yirmiyahu

ever notice that half of the things in Morissette’s ironic isn’t ironic….just crappy luck?
it’s like a bunt single during a perfect game.

8
pezzicle
5 years ago
Reply to  attgig

it’s ironic that a song entitled “inronic” has nothing to do with irony

10
evilsquirrel13
5 years ago
Reply to  pezzicle

Word crimes.

4