The fallout of the MLB electronic sign-stealing scandal seems to widen each day.
Last Monday, commissioner Rob Manfred and league investigators found the Houston Astros guilty of orchestrating a cheating scheme in 2017. The scheme involved players and staff using a centerfield camera in Minute Maid Park to illicitly record opposing teams’ catchers signaling signs.
Meanwhile, the Boston Red Sox are under MLB investigation for their own possible electronic sign stealing plot. The club parted ways with manager Alex Cora last Tuesday after Cora was found to have played an instrumental role in the Astros cheating scandal while he served as the team’s bench coach.
The latest twist is a series of accusations and suspicions that Astros players wore electronic buzzers under their uniforms during the World Series. The buzzers would have warned of upcoming pitch types and pitch locations.
I’ve received a number of questions about the controversy. Below I answer 20 of them.
1) Could Manfred vacate a World Series championship and other records?
Yes. The commissioner has that authority. Article II of the league’s constitution empowers the commissioner to both investigate any activity that is “suspected to be not in the best interests of baseball” and determine whether the activity is, in fact, in violation of the best interests.
Article II also establishes that the commissioner can impose any “preventive, remedial or punitive action.”
A sensible reading of this sweeping language would permit Manfred to strike records that were generated through cheating or fraud.
2) Will Manfred vacate records?
I don’t think so. I say that for several reasons.
First, removal of completed MLB games from past seasons would be unprecedented. Despite the Chicago White Sox deliberately throwing the 1919 World Series, MLB declined to set aside or qualify the result of the Cincinnati Reds winning it. It’s true that MLB can replay games if they don’t last at least 4.5 innings, but the Astros games (and the Red Sox games) in question from past seasons were completed and entered into the record books. It’s also true that teams have protested games and have sometimes succeeded in having games resume at the point of protest. However, those protests occurred within a season, not years later. Also, no protests have been filed in this controversy.
Second, it’s always risky to invent a new precedent in order to address one specific controversy. Doing so invites uncertainty over whether that the same response would be appropriate for other controversies.
For instance, if other past clubs engaged in similar cheating activities, should their records be stripped, too?
To that point, on Friday retired pitcher Jack McDowell claimed that Tony La Russa designed an electronic sign stealing scheme involving a Gatorade sign in the centerfield area in the old Comiskey Park. La Russa, McDowell asserts, invented this scheme while managing the Chicago White Sox in the 1980s. In response to the accusation, La Russa stressed that McDowell joined the White Sox after La Russa was no longer with the club. Assuming for a moment that McDowell’s allegation is true, should White Sox records from the 1980s be redacted?
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Or how about players who used performance-enhancing drugs and steroids? And what about players who used pine tar? Once the door to record vacating is opened, it can be difficult to shut.
Third, since it’s unknown what would have happened had the cheating not occurred. The Astros, for example, might have still defeated the Dodgers in the 2017 World Series. Stripping records also has an Orwellian feel to it. The Astros winning is a historical fact. To claim it didn’t happen is to deny what we know happened.
Fourth, stripping records could invite other legal issues. For instance, if a team’s World Series win is vacated, would players’ stats from the World Series also be erased? If that happens, could a team that paid a bonus to a player based on World Series stats demand he return the money?
Beware of unintended consequences and complexities.
3) Could Manfred suspend or ban players who used cameras, buzzers and other electronic devices?
Yes. Under Article XII of the collective bargaining agreement, Manfred has the authority to take appropriate disciplinary measures against players for conduct that is “materially detrimental or materially prejudicial to the best interests of Baseball.” Cheating is unquestionably damaging to the best interest of Baseball. It undermines the integrity of games and could cost the league substantial revenue if fans are turned off.
Also, no one has a legal “right” to play in a private sports league, just as no one has a right to a job at a private employer. Being kicked out of a pro league is not, in and of itself, an unlawful act by that league.
Lastly, MLB has a long history of suspending and even banning players. Bowie Kuhn banned Ferguson Jenkins after he was found with cocaine and other drugs (Jenkins was later reinstated). Bud Selig banned Steve Howe after a drug offense (Howe was also reinstated).
4) Okay, Manfred could issue suspensions and bans, but should he?
In his report, Manfred declined to sanction Astros players. He reasoned that because many players appear to have been involved, and because the evidence didn’t clearly distinguish which players were more blameworthy than others, it wasn’t possible to determine “relative degree of culpability.”
There is a flaw in Manfred’s logic. He acknowledges that players were guilty of partaking in a cheating scheme. So, if they are guilty, why weren’t they punished?
Think of it this way. If a teacher discovers many students in her class conspired to cheat on a test, would the teacher decline to punish any student because there were a lot of cheaters and it’s not clear which ones were more involved in the plot? Of course not. That wouldn’t be fair to the non-cheaters in the class and it wouldn’t make sense to incentivize cheaters to join hands in a conspiracy as a way of escaping culpability. The teacher would punish all of the cheating students.
Also, the magnitude of the electronic sign stealing harm in baseball is substantial. Los Angeles Dodgers pitcher Alex Wood captured this point in a tweet that has gone viral:
Wood’s insight highlights that a batter who knows the pitch type and its intended location in advance of the pitch being thrown is bestowed a substantial advantage. Batters rely heavily on timing. Consider José Altuve. Per columnist Dieter Kurtenbach, Altuve had a home OPS of 1.541 during the 2017 playoffs, but a road OPS of just 0.497. Continuing with the classroom analogy, knowing the pitch in advance is like a student knowing the exam question in advance.
Manfred could logically reason that if a first-time offense for use of a performance-enhancing drug calls for an 80-game suspension under the MLB-MLBPA joint drug prevention and treatment program, an offense for wearing a buzzer and other electronic violations should be no less than 80 games.
5) So, you’re saying Manfred should punish these players?
Not necessarily. There are important counterpoints to consider.
First, MLB might not be sufficiently confident in the quality and scope of its evidence to justify suspending players. Bear in mind, the league has limited powers to obtain documentation and witness statements. MLB, after all, is a private entity without subpoena powers. Witnesses who speak with MLB investigators aren’t under oath. They might be inclined to lie, exaggerate or omit information—and direct blame onto others to protect themselves. There’s an inherent risk in relying on witness statements that aren’t under oath. If MLB accuses players, it better be certain about its claims otherwise those players could sue for defamation.
Second, there’s the problem of timing: evidence tends to go stale after a while and peoples’ recollections tend to diminish, too. If Altuve and Josh Reddick were wearing buzzers in 2017, there’s a good chance those buzzers are long gone. To that point, according to Tom Verducci, MLB investigators looked into electronic buzzer theories and turned up no evidence.
Third, once Manfred punishes certain players, he open’s “Pandora’s box” to punish other players. If electronic sign stealing is more widespread than only Astros and possibly Red Sox players, Manfred might need to suspend numerous players across the league. MLB losing many skilled players over half a season or longer would diminish the league product and potentially hurt TV ratings and attendance.
6) You didn’t mention the role of the MLBPA—wouldn’t it contest player suspensions?
Yes, the MLBPA would contest player suspensions. However, just because the MLPBA would raise a fight doesn’t mean their objections would succeed in altering the outcome. A prosecutor doesn’t decline to seek charges against someone who is believed to have committed a crime merely because that person will hire a defense attorney. Likewise, an employer doesn’t refrain from punishing unionized employees for workplace misconduct because the employees are represented by a union. The prospect of resistance isn’t, by itself, a reason to not try to hold wrongdoers accountable.
Also, Manfred might believe it is worth taking on the MLPBA in order to communicate to fans and media that he takes the controversy seriously. In fact, Manfred not punishing guilty players could make him seem weak and ineffectual.
But the calculus isn’t so straightforward. The calendar serves an important contextual factor. Manfred and his counterpart, MLBPA executive director Tony Clark, will engage in labor negotiations over the next year on a new CBA. The current CBA will expire on Dec. 1, 2021. A side battle with Clark over sign stealing consequences could disrupt negotiations on a new CBA.
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The MLBPA would also have a number of sensible arguments in an appeal (arbitration hearing). The MLBPA might insist that players felt compelled or pressured to participate because their general manager, manager, bench coach and possibly other management types supported the practice. Did Astros players have a meaningful opportunity to “opt out” of participating in the scheme? Would they have been stigmatized and possibly suffer adverse career consequences if they had protested in the name of ethics and good sportsmanship?
The MLBPA can also stress that Manfred basing any player suspensions on the length of PED suspensions would be inappropriate and potentially a violation of labor law. Lengths of PED suspensions were collectively bargained between MLB and MLPBA. In contrast, there is no collectively bargained policy specific to electronic sign stealing. Comparing the two transgressions is like comparing apples and oranges.
In response, MLB could assert that Manfred has wide discretion under Article XII of the CBA to punish players for “conduct detrimental or prejudicial to baseball.” A conspiracy to cheat is clearly detrimental to the interests of baseball. It undermines notions of fair play and has led to substantial, and potentially lasting, backlash against baseball.
7) Can MLB be sure that only the Astros and possibly the Red Sox stole signs?
No, for several reasons.
First, McDowell’s claim against the White Sox included, illicit sign stealing has long been a part of the game. Don’t be surprised if other retired players raise similar claims against teams.
Second, even assuming the unlikely—that electronic sign stealing in baseball really began with the 2017 Astros club—that Astros club wasn’t a self-contained entity. Some of the players and coaches went on to jobs with other teams in 2018 and 2019. Some of those same players and coaches would later join third and fourth teams. They took with them what they learned from their time with the Astros. They may have shared knowledge to benefit their new employers.
Think of the Astros as the proverbial “patient zero.” Except here, instead of spreading a contagious illness, knowledge about cheating strategies is spread.
Much attention has been paid to the suspicion that after the Red Sox hired Cora in October 2017, the team could have used his knowledge of electronic cheating to help the Sox win the 2018 World Series. There’s also been talk about Carlos Beltran, who stepped down as New York Mets manager on Thursday. He was with the Yankees during the 2019 season as special adviser to general manager Brian Cashman. During a press conference in June 2019, Cora weirdly winked while unexpectedly referencing Beltran. Cora then uttered a non-sequitur about “devices.” In hindsight, Cora may have been implying the Yankees were engaging in electronic sign-stealing.
Who knows how many teams in 2018 and 2019 learned about the Astros electronic sign stealing strategies and then crafted their own techniques? Just like when looking under the hood of a car, the more you look, the more problems you’ll find.
8) Could MLB or clubs stop managers, coaches and players from tweeting about the controversy?
Probably not and doing so would be a bad idea.
One could argue that information pertaining to electronic sign stealing is a “trade secret.” Such a term that refers to strategies, formulas and other inside knowledge that help businesses gain competitive advantages over rivals. Here, though, the inside knowledge involves prohibited conduct. For that reason, it likely falls outside the scope of protected knowledge.
Regardless, MLB would be opening up a can of worms if tried to stop tweets about the sign-stealing controversy. MLB would seem overzealous and defensive, two traits that would only exacerbate the controversy. Baseball might be portrayed as trying to coverup the wrongdoing by silencing whistleblowers (more on that below).
There are also practical considerations. Would Manfred really suspend players for tweeting? Would he claim that doing so in the best interests of baseball? It is hard to see the commissioner reaching that conclusion since it would defy how people communicate in contemporary America. It would also seem misguided given that it would illicit negative reactions. In addition, the MLBPA could challenge such efforts as unauthorized.
9) Could a player who lost statistical achievements and contract bonuses due to others cheating successfully sue for damages?
No. Players agree to arbitration as the dispute-resolution method for salary, pay and other grievances that relate to the law. They do so as part of their membership in the MLPBA, a union which collectively bargains arbitration policies with MLB. In addition, Paragraph 9 of the uniform player contract explicitly states, “the club and the player agree to accept, abide by and comply with all provisions of the Major League Constitution, and the Major League Rules, or other rules.”
In addition to the hurdle of arbitration, the idea of a player suing over lost stats and bonuses would be inherently speculative and frowned up by most judges. A court would be wary of reimagining what might have happened in a game had there been no cheating. At every moment in every game there are numerous variables impacting player performance.
10) Could ticket-holders and viewers who are upset their team lost successfully sue MLB?
Almost certainly not. Fans who attend MLB games are entitled to a narrowly defined set of rights as listed on their ticket. They mainly include the ability to sit in a particular seat to watch a particular game. The ticket doesn’t guarantee that teams will refrain from breaking rules. Again, sign stealing (of the human eye kind) has been around since the sport was invented in the 19th century. Fans are on notice that this type of activity can happen.
Also, being upset that one’s favorite team may have been cheated out of a World Series is understandable but it’s not a harm the law ought to remedy. Neither MLB nor its clubs have a legal duty to make us happy.
It’s possible that some fans and attorneys might offer quixotically constructed claims related to consumer protection and fraud, but those lawsuits would face long odds and likely fail.
Robert Hanashiro-USA TODAY Sports
11) Could someone who lost a bet on a game successfully sue?
I’ve received a number of emails from readers who are curious about whether bettors could sue over the controversy. Some clearly lost a bet because a team that cheated won.
These bettors are justifiably annoyed. I would be annoyed, too. But justifiable annoyance doesn’t, by itself, create a viable legal claim.
Indeed, there’s an inherent problem with the fact-pattern in terms of suing: bettors aren’t in contract with MLB or any clubs. Their bet is made with a sportsbook or other gaming entity.
Bettors, like other participants in the gambling industry, essentially free ride off of leagues and players. Leagues and players take on the expense and risk of producing sports. Bettors and sportsbooks are merely spectators from the sidelines. They create a secondary market tied to outcomes in games, but that market isn’t in contract with the games themselves. It’s like watching a reality TV show, or following a political election, and betting on who will win. You don’t have a case against the TV show or a candidate who may have broken rules.
The “free ride” issue is one rationale offered by leagues when demanding “sports betting right and integrity fees” as part of state laws to legalize sports betting. These fees, which no state has yet to recognize, would compel betting operators and sports books to pay a percentage of earnings to leagues.
Back to bettors being upset about the Astros and possibly other clubs cheating. Without a contractual nexus to the games, the bettors probably lack standing—a legitimate legal interest in a dispute—to raise a viable claim in court. A court would also note that sports bettors assume all sorts of risk in terms of games themselves. If one doesn’t want those risks, they probably shouldn’t bet.
12) But aren’t leagues increasingly trying to capture the wagering community?
Yes, and that question sparks a couple of nuances to the analysis.
First, a bettor could review his or her contract with the sportsbook to see if there are any remedies against the sportsbook. Perhaps the sportsbook offered guarantees as to the integrity of the games. Is that likely? No. In fact, the sportsbook probably disclaimed any liability related to the games.
Second, MLB and other leagues should be mindful of the electronic sign-stealing controversy. They have, to varying degrees, embraced sports betting after losing the U.S. Supreme Court decision in Murphy v. NCAA in 2018. The more that leagues embrace sports betting and enter into contracts with casinos and other sports betting entities, the greater the chance that bettors obtain a sufficient contractual nexus to sue.
13) Could a network in contract with MLB terminate a TV deal over the controversy?
Every broadcasting contract features terms that allow a party to exit the deal or reduce or suspend payments. If MLB players went on strike, networks and regional sports networks that pay to broadcast MLB games would likely have certain remedies.
It’s possible that broadcasting contracts could be construed to justify a network reducing its financial obligation to pay MLB and clubs due to a team or multiple teams cheating.
14) Would a network actually do that?
No.
First, MLB television ratings have generally been on the rise. MLB’s three national TV partners–Fox, ESPN and TBS–all enjoyed increased viewership in the 2019 season.
Second, any network that tries to exit a contract with a major league would face litigation (or arbitration or mediation) with that league over the attempted exit. There would be no clean break, unless it were negotiated by all parties.
Third, leagues would be wary of doing business with such network in the future. A network that drops or takes other measures against a league may not be a network with whom MLB, NBA, NHL and NFL wish to do business.
That said, networks will no doubt monitor whether the cheating controversy impacts TV ratings in the 2020 season. A decline in ratings could influence future TV contracts. Along those lines, if MLB players on social media question the legitimacy of their games, fans will surely do the same.
Mark J. Rebilas-USA TODAY Sports
15) Could owners fire Manfred over the controversy?
Yes. MLB employs Manfred and the owners control MLB. If a sufficient number of owners decided to oust Manfred, MLB could sever Manfred’s employment contract. He would then be owed compensation based on the terms of his contract, which reportedly runs through 2024.
16) Will owners fire Manfred?
I don’t think so.
First, financially the league is doing well. During the 2019 season, MLB generated an all-time high of $10.7 billion in revenue. Also, team values (which owners—Manfred’s bosses—obviously care about) continue to climb.
Second, league commissioners are almost never fired. One de facto exception occurred in 1992, when commissioner Faye Vincent resigned after receiving a vote of no confidence by owners. The owners were upset with Vincent over a number of issues, including disappointing TV ratings and rising player salaries. However, given the financial success of MLB under Manfred, the type of reasons that led to Vincent’s ouster are not in play with Manfred (at least not yet).
17) Could any of the sign stealing be grounds for criminal charges?
Criminal statutes can be interpreted broadly—some, including me, would argue too broadly—to capture all sorts of ostensibly fraudulent acts. We’ve seen that in sports recently. Basketball coaches and sneaker executives have become convicted felons because they facilitated payments to high school basketball stars. In Operation Varsity Blues, celebrities and other affluent people have been charged (and in some cases pleaded guilty to) bribing college coaches so they’d falsify the parents’ children as student-athletes in order to secure admissions.
Here, it could theoretically be argued that the players and coaches who used electronic communications to conspire to engage in fraudulent acts committed such offenses as criminal conspiracy, wire fraud, honest services wire fraud and racketeering.
A criminal conspiracy is one where there is knowledge, intent and a shared objective by the conspirators to accomplish an unlawful purpose. Wire fraud, meanwhile, entails using a wire communication—including an electronic transfer of information—to pursue an unlawful objective. As to honest services wire fraud, it forbids an employee of depriving his or her employer of an intangible right to provide honest services. Racketeering contemplates an organized crime, such as a collaboration to commit fraud.
18) Will we see any of those criminal charges surface?
Probably not.
For starters, a federal charge would require the criminal act to cross state lines. With the college basketball scandal and Operation Varsity Blues, there were interstate wires of money and communications. Here, the activity (from what we understand) appears limited to activity within a ballpark. Of course, if planning for the conspiracy occurred in multiple states, the necessary crossing of state lines may have occurred. Also, there are similar state statutes that could apply, provided prosecutors were interested in raising them.
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Second, the criminal justice system in the U.S. has largely applied a “hands off” approach to incidents that occur within games. I’ve covered this before, particularly with respect to on-field incidents that would be a crime in any other situation.
There is one caveat: if sign stealing is in any way connected to financial payments, bribes or betting, the fact pattern would change dramatically. The activity would then become more akin to racketeering, a crime discussed above.
19) Will MLB protect whistleblowers from retaliation? Could collusion occur?
MLB will need to carefully monitor the treatment of players who go on record to reveal cheating. ESPN analyst and Mets advisor Jessica Mendoza recently portrayed former Astros pitcher Mike Fiers—who revealed the Astros’ sign-stealing plot to The Athletic—as erring by going to the media before MLB about his claims.
If players are blackballed or shunned, or if whistleblower batters become targets for beanballs, MLB will need to address the matter with clubs and the MLBPA.
A whistleblower player who is unable to land a job might surmise that he is a victim of collusion, which would require evidence that two or more clubs conspired to exclude him from the game. Baseball has a long history with collusion, though in the context of suppressing wages for free agents not whistleblowing.
20) Will Congress investigate?
Rush is not the only member of Congress interested in more transparency from baseball. U.S. Congresswoman Lori Trahan (D-Massachusetts) and U.S. Congressman David McKinley (R-West Virginia) are leading a bipartisan effort to stop MLB from revoking affiliations with minor league teams.
Congress has certain leverage over MLB, particularly with respect to MLB’s antitrust exemption. Among other benefits to MLB, the exemption shields MLB from antitrust claim brought by minor league players.
Congress also has the capacity to subpoena MLB for records and materials. Furthermore, Congress could demand that Manfred as well as managers, coaches and players testify in hearings.
Needless to say, the sign-stealing scandal could become even more of a problem for MLB in the weeks and months ahead.