Assessing the case for MLB collusion

My first article for Baseball Prospectus examines the claim that the perceived dearth of free-agent signings in the current MLB offseason is evidence of teams improperly colluding to depress player wages.

The full article is available here.

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Sports Law Roundup – 12/22/2017

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Here are the top sports-related legal stories from the past week:

  • Gymnast abuse: Earlier this month, a judge declared that a doctor with ties to USA Gymnastics, the national governing body for gymnastics in the United States; Michigan State University; and a gym in the Lansing area, who was facing multiple civil and criminal accusations of improper sexual conduct in connection with his alleged sexual abuse of young female athletes was “a danger to children” and sentenced him to sixty years in prison. Now, one of his most prominent victims, U.S. gold-medalists McKayla Maroney, has sued USA Gymnastics, which, she alleges, tried to stop her from publicly accusing the doctor of abuse. According to Maroney’s complaint, the situation arises out of a prior $1.25 million settlement agreement Maroney reached with USA Gymnastics that contained mutual non-disclosure provisions. Maroney’s current attorney says that while Maroney willingly agreed to that settlement, she did so at a time when she was suffering from emotional trauma and needed the money for “lifesaving psychological treatment and care.” USA Gymnastics says that the parties included the confidentiality provision in the settlement agreement at the insistence of Maroney’s then-attorney, Gloria Allred. Maroney’s complaint also names Michigan State University, the U.S. Olympic Committee, and the doctor as defendants. The doctor still is awaiting sentencing on ten state-law counts of first-degree criminal sexual conduct.
  • Baseball injury: Dustin Fowler, currently an outfielder for the Oakland A’s, filed a negligence action against the Chicago White Sox and Illinois Sports Facilities Authority, which owns and operates Guaranteed Rate Field, because of an injury he suffered when, as a member of the New York Yankees, he ran into an unpadded electrical box in the right-field foul territory of Guaranteed Rate Field during a game last summer. Fowler damaged his knee in the collision, causing his rookie season to end before his first plate appearance, and he ultimately required surgery. Fowler claims that the defendants should have done more to secure the box or protect players from running into it.
  • Sleeve suit: A tattoo artist, whose clients include LeBron James, Kyrie Irving, Tristan Thompson, and Danny Green, is suing the makers of the NBA2K17 video game because, he says, the game’s graphics are so realistic and detailed they include replications of his work, over which he claims copyrights, and he alleges he is entitled to compensation for their use in the game. It’s unclear whether the artist (somewhat confusingly named James Hayden) has sought to protect these rights in other circumstances, such as game broadcasts or television commercials, featuring his clients. This isn’t the first lawsuit against the makers of the NBA2K series of games, however. A different owner of copyrights on NBA player tattoos sued over prior editions of the game and lost because it had not registered those copyrights with the U.S. Patent and Trademark Office. It isn’t clear whether Hayden has registered his trademarks.
  • Super Bowl ticket shortage: A federal appeals court will allow a proposed class action to proceed against the NFL based on allegations that the league’s ticket lottery program for Super Bowl XLVIII, which was played at MetLife Stadium in East Rutherford, New Jersey, only released a fraction of the available tickets to the public. The legal basis of the suit is a New Jersey consumer protection statute that requires the public sale of at least 95% of the tickets for events hosted in the state. The named plaintiff’s claim relies in significant part on an expert economic opinion that the plaintiff paid more for tickets he bought on the secondary market than he would have had the league not withheld more than five percent of the game tickets from the primary public market in violation of the New Jersey law. The federal court now has certified the question of whether the state law applies to the NFL’s actions to the Supreme Court of New Jersey.
  • Hockey island: The State of New York’s economic development agency, Empire State Development, has selected a $1 billion bid by a joint venture directed in part by New York Mets owner Fred Wilpon to develop an entertainment complex that will be the new home of the New York Islanders. The move is significant in that the site, which is part of the Belmont Park racetrack property, is located on Long Island, the place the team called home for all but the last three years, when the franchise left Nassau Coliseum for the Barclays Center in Brooklyn (which, as a geological matter, is part of Long Island but whatever).
  • Music City soccer: On Wednesday, MLS announced that it would award an expansion franchise to Nashville, where the new team is expected to play in a new arena to be built at the city’s fairgrounds. The day before, a local judge had dismissed a lawsuit by opponents of the stadium’s construction because she concluded the plaintiffs lacked standing to challenge the project and determined that the stadium would not impair existing fairground activities, including the state fair.
  • RICO soccer: On Friday in a New York federal court, a jury convicted the former leaders of the Brazilian and Paraguayan soccer associations on racketeering conspiracy charges related to millions of dollars in bribes received in exchange for marketing rights. The jury is continuing to deliberate over similar charges against the former head of the Peruvian soccer association. The maximum sentence for each charge is twenty years in prison.
  • Thursdays are for the lawsuits: On Thursday, Barstool Sports served the NFL with a notice to cease and desist the marketing and sale of a line of apparel the website contends were “made with the intent to trade off of the goodwill associated with” a Barstool-owned trademark, “Saturdays are for the Boys.” (Interestingly, Barstool did not create “Saturdays are for the Boys,” though it did popularize, market, and register as a trademark the phrase one of its writers overheard at a bar.) The allegedly offending products are shirts the NFL is selling with the phrase “Sundays are for” followed by one of its team names or nicknames. The one shown in the cease-and-desist letter is the Dallas t-shirt, which reads “Sundays are for the Boys.” The NFL had pulled that shirt from its online store prior to the sending of the letter, but the others remain available.

Sports court is in recess.

Baseball Notes: Current Issues Roundup

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Rather than my own attempt at fashioning a nugget of faux-wisdom, the purpose of this Baseball Notes post is to highlight a number of articles posted elsewhere addressing current offseason issues in the sport.

On the hot stove‘s slow burn:

An underappreciated element of the utter sameness that permeates baseball today is the number of executives who came through the commissioner’s office at Major League Baseball either as an intern or early in their careers. Jobs there aren’t just pipelines to teams. They are breeding grounds for the proliferation of commissioner Rob Manfred’s doctrine, honed during two decades as the sport’s chief labor negotiator.

How does it work? Consider the case of Tommy Hunter, the relief pitcher, who late last winter was holding out for a major league contract. On the same day, according to two sources, at least two teams called Hunter offering the exact same deal – an occurrence that in the past might have screamed of collusion. In this case, the sources said, it was likelier a reflection of how teams value players so similarly.

It’s not just the algorithms with minuscule differences that spit out the same numbers. It’s a recognition of how to manipulate the new collective-bargaining agreement. “Clubs are maneuvering to take advantage of the significant salary depressors in the CBA,” one agent said. An example: One large-revenue team telling agents that his team is wary of getting anywhere close to the luxury-tax threshold, lest it be penalized for exceeding it.

“Of course that’s what we’re saying,” the GM said. “We’d be stupid not to.”

On Julio Teheran and what happens when player-value metrics tell different stories:

At Baseball-Reference, Julio Teheran was much worse in 2017. He allowed heaps more runs than he had in 2016. It’s more complicated than that — a ton of work has gone into the calibration — but at a basic level this is what we’re talking about. By bWAR, based on runs allowed adjusted for things like ballpark and the quality of his defense, Teheran was worth 1.6 wins in 2017, close to league average.
. . .
At FanGraphs, Julio Teheran was much worse in 2017, worse even than he was at Baseball-Reference. His strikeout rate went down, his walk rate went up, and he allowed way more home runs. It’s more complicated than that, but at a basic level it’s not much more complicated than that. By fWAR, which is based on a stat (FIP) calculated with those three factors alone, Teheran was worth 1.1 wins. He pitched considerably worse than a league-average starter.
. . .
But now it gets complicated, because at Baseball Prospectus Teheran’s WARP was 3.8, identical to his 3.8 WARP in 2016. He ranked 24th in baseball, ahead of Alex Wood, James Paxton and Robbie Ray. We’ve found a story that says Teheran was actually good.
. . .
Which takes us to a third level of storytelling, observing not just what happened or what should have happened but what should have should have happened.

In WARP’s telling, Teheran walked more batters than he did in 2016, but he pitched like somebody who should have walked fewer than he did. He allowed far more home runs than he did in 2016, but he pitched like somebody who should have allowed fewer. Specifically, given his pitch types and pitch locations, he should have beat batters who actually beat him.
. . .
There are those who complain there are multiple WAR models telling us different things about players. Stats are supposed to resolve uncertainty, we figure, not exacerbate it. But these are complicated questions. The worst thing a stat could do it mislead us about how simple baseball is, or about how much we know. It’s not simple. We don’t know all that much.

On the weekend’s big throwback trade between the Dodgers and Braves:

With five players involved, [Matt Kemp, Adrian Gonzalez, Scott Kazmir, Brandon McCarthy, and Charlie Culberson,] this is a big trade for two teams to make. But then, if we’re going to be realistic, this isn’t about the players at all. This is a swap of money, or, more accurately, this is a swap of debt. There is short-term debt, and there is shorter-term debt.
. . .
Gonzalez is already a free agent. The Braves designated him for assignment so fast that it was part of the initial press release. Kemp is unlikely to play a game for the Dodgers, since they’re already looking to flip him, if not drop him outright. Kazmir didn’t pitch in the majors this past season. McCarthy did, but he threw just 92.2 innings. Culberson batted all of 15 times before making the playoff roster because Corey Seager was hurt. All of these players combined for a 2017 WAR of +0.7. It was all thanks to McCarthy, and his 16 adequate starts.
. . .
[H]ere’s how this works. Gonzalez’s 2018 salary belongs to the Braves now. Then his contract is up. The same is true for McCarthy, and the same is true for Kazmir. Culberson does come with some years of team control. The Dodgers are also sending the Braves $4.5 million. And Kemp’s 2018 salary now belongs to the Dodgers. So does Kemp’s 2019 salary. In each year, he’s due $21.5 million.
. . .
[T]his exchange is more or less cash-neutral. That is, neither the Braves nor the Dodgers are taking on the greater obligation. But the Dodgers are spreading it over the next two years, reducing their 2018 payroll figure. The Braves will face the greater short-term burden, and then, come 2019, there will be sweet, sweet freedom. The Braves ditch a future obligation, giving them more financial flexibility a year from now. The Dodgers assume a future obligation, but they, too, will get more financial flexibility a year from now, and beyond, because they likely won’t have to pay the most severe competitive-balance taxes. All they’re worried about is getting the overage penalties to reset. . . . Next offseason, Bryce Harper, for example, is expected to be a free agent. Manny Machado is expected to be a free agent. All sorts of good players are expected to be free agents, and, significantly, Clayton Kershaw could opt out. The Dodgers are presumably planning to spend big, so resetting the overage penalties now could and should eventually save them eight figures. All it requires is one year of dipping down.

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Previously
Baseball Notes: Baseball’s growth spurt, visualized
Baseball Notes: The WAR on Robbie Ray
Baseball Notes: Save Tonight
Baseball Notes: Current Issues Roundup
Baseball Notes: The In-Game Half Lives of Professional Pitchers
Baseball Notes: Rule Interpretation Unintentionally Shifts Power to Outfielders?
Baseball Notes: Lineup Protection
Baseball Notes: The Crux of the Statistical Biscuit
Baseball Notes: Looking Out for Number One
Baseball Notes: Preview

Addressing the sports consequences of the Disney-Fox deal

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As highlighted in this week’s Sports Law Roundup, Disney and Fox are entering into a doozy of a media deal that involves everything from movies to television shows to streaming platforms to sports programming. This transaction has Star Wars components, Hulu components, and Simpsons components that, rightfully, are making headlines. It would not be surprising, however, if some of the most visible changes for viewers that result from this asset purchase, for which approval by various supervisory entities remains pending, come for consumers of sports media.

In an article out today, Will Leitch sheds some light on how this sale may affect the sports-media landscape:   Continue reading

Sports Law Roundup – 12/1/2017

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Here are the top sports-related legal stories from the past week:

  • Streaming data: The U.S. Court of Appeals for the Ninth Circuit has ruled that ESPN may share an individual’s streaming device identification number and record of videos watched without violating the federal Video Privacy Protection Act because that information does not constitute “personally identifiable information” under that act. The First Circuit previously had ruled that such information could be personally identifiable information, especially where combined with geolocation data, but that now is regarded as the minority position.
  • Bird death: A Massachusetts appellate court affirmed a trial court’s grant of summary judgment in favor of a truck manufacturer and the owner of automotive-related equipment in a wrongful-death case brought by the widow of Mark Fidrych. Fidrych died in 2009 of accidental asphyxiation when his clothing became entangled in the equipment while he was working underneath his truck. The court agreed that the equipment was dangerous and could have been designed in a safer fashion, but, because those designs were not defective and the risk that led to Fidrych’s death “arose out of the addition of other components and the decisions made, and actions taken, by downstream actors, the defendants had no duty to warn of those dangers.”

Sports court is in recess.

Sports Law Roundup – 10/20/2017

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I used to write the sports technology roundup at TechGraphs, an internet website that died, and now I am writing the sports law roundup at ALDLAND, an internet website.

Here are the top sports-related legal stories from the past week:

  • Penn State child abuse: A court has denied the request of Jerry Sandusky, the former Penn State University assistant football coach who sexually abused children, for a new trial. Sandusky contends his conviction on those charges was wrongful due to the claimed inadequacy of his legal representation at trial and the prosecutor’s failure to disclose potentially exculpatory information.
  • NFL hiring collusion: Free-agent quarterback Colin Kaepernick has filed a labor grievance with the NFL alleging that the league’s member teams are colluding to keep him out of a job because of his leading role in player protests during the National Anthem. Kaepernick identifies President Donald Trump as a significant actor whose public statements condemning protesting players motivated the owners’ decision. Kaepernick faces an uphill legal climb, though, because circumstantial evidence– the observable fact that no team has hired him despite his track record and apparent needs at his position– is insufficient to prove collusion. Under the collective bargaining agreement, “no club, its employees or agents shall enter into any agreement, express or implied, with the NFL or any other club, its employees or agents to restrict or limit” a team from negotiating or contracting with a free-agent player. To make his case, Kaepernick will need to demonstrate that the owners, together and not independently, made an affirmative decision not to employ him, or that the NFL itself directed or encouraged teams to take that position. Depending upon how this matter evolves, however, the stakes for the league and union could be high, as, under certain circumstances, proof of collusion could terminate the CBA.
  • Wrigleyville: The U.S. Court of Appeals for the Seventh Circuit has denied a request for rehearing filed by owners of Wrigley Field-area owners of rooftop restaurants and bars who claimed the Chicago Cubs violated an agreement to prevent the obstruction of field views from the neighboring rooftop establishments when the team included a new, large, outfield video board in its updates to Wrigley Field. The court offered no explanation for its decision to reject the petition for a rehearing of its prior judgment that the agreement itself and MLB’s antitrust exemption barred the neighbors’ claims.
  • North Carolina academics: After spending more than six years investigating the University of North Carolina for academic fraud, the NCAA issued a final ruling subjecting the school to minimal sanctions that do not affect any of UNC’s athletic programs, a decision that, according to Mark Titus, “should come as no surprise.”

Sports court is in recess.

Tigers make no waves with garden-variety hire

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In a move sure to disappoint many, the Detroit Tigers’ managerial search reportedly is over after less than two weeks, and the team appears to be set to announce former Minnesota Twins manager Ron Gardenhire as the replacement for Brad Ausmus. From the article announcing the decision:

What separated Gardenhire from the rest of the pack?

Multiple sources told The Athletic’s Katie Strang that Tigers general manager Al Avila entered the process leaning heavily toward a candidate with previous MLB managerial experience. Gardenhire was seen as a seasoned, battle-tested option in this regard.

In his thirteen-season tenure as the Twins’ skipper, he compiled a .507 winning percentage. In twenty-seven playoff games, he posted a .222 winning percentage. All of those playoff wins came in his first three seasons (2002-2004) with the club, and Minnesota missed the playoffs entirely, and by wide margins, in his final four seasons there (2011-2014).

In my opinion, Gardenhire is the worst sort of “old-school” manager who lacks the ability to adapt to the modern game or develop young talent, two things of critical importance to this Tigers team in 2018 and beyond. He’s Jim Leyland without the edge, wit, or soul (which is to say: not Jim Leyland). He’s Dusty Baker without the success. He’s Clint Hurdle without the willingness to learn and adjust. He’s basically Bryan Price’s dad. Which is to say, not good, and vanilla at best.

To this, Tigers fans should say: “no thank you.” That a coaching search that supposedly began with fifty names ended like this reveals a front office more tone-deaf than previous personnel decisions indicated. Research indicates that managers probably have little impact on game outcomes, and if Gardenhire is coming to Detroit merely to serve as an interim stopgap during the rebuilding process, so be it. If that’s the case, though, why not bring in someone younger and cheaper who at least offers the possibility of growing with the players and the club and developing into a long-term solution? Or, why not promote from within, like the Atlanta Braves did with Brian Snitker? The team’s coaching ranks weren’t short on people “with previous MLB managerial experience,” including Lloyd McClendon and Gene Lamont.

Gardenhire’s not likely to be a detriment to the team, but his hiring feels like a missed opportunity and serves as a reminder that, after the Verlander decade, the Detroit Tigers’ rebuilding process will be a long and difficult one indeed.

Can CC Ride into Cooperstown?

New York Yankees starting pitcher CC Sabathia had a big night last night, giving his team a much-needed six-inning shutout start and a chance to even the series against the  Houston Astros in the ALCS. With Sabathia, at age thirty-seven, in the final year of his current contract, Sabathia’s performance made some wonder about his Hall-of-Fame credentials, a subject I attempt to parse in only slightly greater detail in my latest post for Banished to the Pen.

The full post is available here.

Recalling Mike Pelfrey’s contract on this, the day of John Jaso’s retirement

The Davy Jones of Major League Baseball, John Jaso, says he plans to retire from the sport and live on his sailboat. As the Deadspin writeup notes, Jaso earned roughly $16.6 million in his nine-year career, during which he spent time with the Pirates, Rays, Mariners, and A’s. Not bad for a catcher-turned-first-baseman/corner-outfielder who amassed 6.1 career WARP.

Of course, it’s also roughly the same amount of money– $16 million– the Detroit Tigers agreed to pay Mike Pelfrey for two seasons of work. Pelfrey now has twelve MLB seasons under his belt and -2.5 career WARP to show for it. His -2.2 WARP in 2016, the first year under his contract with the Tigers, represented the worst season of his career after his rookie year. (Pelfrey rebounded to -0.1 WARP this year for the White Sox, who picked up just $540,000 of the $8 million remaining on his contract when they signed him the first week of the season.)

These are the facts, and, viewed together, they don’t reflect particularly well– though certainly in varying degrees of not-well– on anyone involved with the possible exception of the White Sox, who paid essentially the league-minimum salary for 120 innings of slightly below-replacement level starting and relief pitching. Jaso’s probably holding off on his official retirement announcement until he has an opportunity to meet with Al Avila.

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Previously
Catching Fire: Pelf on the shelf

Sports Law Roundup – 9/22/2017

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I used to write the sports technology roundup at TechGraphs, an internet website that died, and now I am writing the sports law roundup at ALDLAND, an internet website.

Here are the top sports-related legal stories from the past week:

  • Dominican politics: A court in the Dominican Republic has convicted former MLB player Raul Mondesi on charges of political corruption in connection with his activities as mayor of San Cristobal, his hometown. The court sentenced Mondesi to eight years in prison, fined him the equivalent of $1.27 million, and barred him from holding public office for the next ten years. Mondesi, the 1994 National League rookie of the year, earned over $66 million in his thirteen-year career mostly spent as a member of the Los Angeles Dodgers. Reports indicate Mondesi embezzled funds while serving as mayor of San Cristobal.
  • Penn State child abuse: A court dismissed a defamation lawsuit former Penn State University Graham Spanier filed against Louis Freeh, the former FBI director who investigated the the Jerry Sandusky sexual assault scandal inside PSU’s football program and produced a report of his investigation that named Spanier and served as part of the basis for subsequent criminal charges against Spanier. In June, a court sentenced Spanier to two months in jail and eight months on house arrest following his conviction on a misdemeanor count of child endangerment. That conviction, the judge in Spanier’s defamation case explained, barred the defamation claims, although he observed that Spanier could revive the case if an appellate court reversed his criminal conviction.
  • Three on three on three on three: Ice Cube’s (real name: O’Shea Jackson) Big3 Basketball, a popular three-on-three basketball league for former NBA players with an FS1 television deal, responded to a lawsuit from new rival Champions League by filing a lawsuit of its own alleging that Champions League defamed Big3 by falsely telling investors that the reason Champions League had not yet launched was because Big3 has blocked its players from joining Champions League. Champions League’s previous suit against Big3 alleged that Big3 violated agreements to allow players to play in both leagues.
  • NFL head injuries: A Boston University study on the brain of Aaron Hernandez concluded that Hernandez had “stage 3 CTE.” Initial reports indicated that Hernandez’s family intends to file suit against the NFL and the New England Patriots and, on Thursday, Hernandez’s now four-year-old daughter, Avielle, filed an action against those entities. Her complaint alleges that negligence by the league and team resulted in a loss of parental consortium. Related filings state that she is seeking $20 million. The complaint further states that Hernandez had “the most severe case of [CTE] medically seen in a person of his young age” by the Boston University researchers. According to the complaint, there are four stages of CTE, with stage 3 typically being associated with players with a median age of death of sixty-seven. Hernandez was twenty-seven when he committed suicide.
  • OSU trademark: Oklahoma State University and Ohio State University have settled their conflict over the use of the “OSU” trademark, with both universities agreeing that they may use the mark nationwide. The dispute initially arose after Ohio State sought a trademark for “OSU” and Oklahoma State submitted an objection to the U.S. Patent and Trademark Office claiming that it held rights to that mark. Under their agreement, each school will not use “OSU” in connection with the colors or mascot of the other and will use “Ohio State” and “Oklahoma State” in promotional materials to help avoid confusion. The agreement also includes a non-disparagement provision precluding the schools from using phrases like “wannabe OSU” or “copycat OSU.”
  • Beverly Hills Ninja Bikes: Make Him Smile Inc., a company that owns the intellectual property rights associated with late comedian Chris Farley, sued the Trek bicycle company over its marketing of a “Farley” bicycle designed with fat tires and a fat frame. Trek, the plaintiff alleged, paid nothing for trading on Farley’s name and likeness. The complaint seeks $10 million in damages.

Sports court is in recess.