Mar 23, 2013

Suing to Gain a Competitive Advantage and Other Non-Sensical Thoughts

John McMickey is a long time Red Sox fan.  I’m sure that’s hard to imagine given his name.  He’s also a huge Dustin Pedroia fan.  During an early September game in 2012, McMickey decided to send Pedroia a quick tweet during the 3rd inning of a match-up with the New York Yankees.  The color commentator for the Red Sox broadcast had just mentioned that Yankees’ starter Ivan Nova was tipping his pitches by changing arm slot whenver he threw his curveball.  McMickey then sent Pedroia a tweet giving him the heads up.

While against club policy to check or send social media during a game, Pedroia by chance had his phone with him on this night.  While waiting to bat in the bottom of the third, he glanced down at his phone after it buzzed in its pocket and saw:  “@BostonMick: Nova tipping pitches.  Arm high on curve.  #homerunacoming!”  Pedroia responded with a quick reply of “thanks brah,” and then promptly went out, waited for Nova’s arm slot to rise, and then deposited a ball over the green monster on a hanging curve.  McMickey was elated, at least until he checked his mail on October 4….

As McMickey sorted through the various mail inserts, credit card applications, and past due bills, one letter got his attention.  It had the name of a law firm in the top left corner, and it seemed to be a fancy law firm (there were at least 5 last names making up the incoherent partnership title!).   As McMickey read the first paragraph, he was stunned.  Major League Baseball was suing him for tortious contract interference.  They claimed he was well aware that there were team policies in place banning social media communications during games, and that information regarding tipping pitches could not be relayed in the real-time format.  They said he was well aware of it citing a 2011 ESPN story.  By sending that tweet to Pedroia, he had enabled Pedroia to break these rules and compromised the integrity of that September game.  McMickey’s jaw dropped…..

If all of this seems outlandish to you, it should.  After all, the entire account is fictional.  However, after this week’s announcement that Major League Baseball has filed suit against Biogenesis for tortious contract interference for the alleged distribution of PED’s to several major league players, maybe the story isn’t that outlandish afterall.  To be clear, I’m not trying to draw a direct parallel between the use of PED’s and pitch stealing (though the causal connection to unfair competitive advantage is similarly nebulous).  Nor am I suggesting that John McMickey’s tweet amounts to the same degree of conduct that Biogenesis is alleged to be involved with.  However, the validity of Major League Baseball’s ficitional law suit against McMickey and its all too real suit against Biogenesis is quite similar:  It’s not.  The major difference between the two is that Biogenesis has information Major League Baseball wants.  McMickey didn’t. 

It doesn’t take a law degree or knowledge of esoteric latin phrases to know that what Major League Baseball is really after is Biogenesis’ transaction ledgers.  Information they’ve, to this point, been frustrated at trying to obtain.  At its core, Major League Baseball isn’t expecting to get any monetary judgment out of a now defunct pain clinic.  Even if they could prove damages, highly suspect in its own rights, a monetary judgment would be less than a drop in the bucket for an organization as large and wealthy as MLB. 

They don’t need to get to that stage.  All MLB’s lawyers need to do is convince a Florida judge that the claims aren’t baseless on their face, avoid the inevitable Motion to Dismiss that the defense will file, and get to the discovery stage of the law suit.  Don’t expect this process to be smooth or quick. 


Realistically, this could take at least six months to a year just for MLB to obtain any of their much sought information.  Even if they do receive it, a proper follow-up investigation and any related grievance proceedings will take even longer.  As has been widely reported, the main targets of all this are Alex Rodriguez and Ryan Braun.  By the time Major League Baseball has enough information to take action against these guys, Alex Rodriguez could be retired.  The seasons implicating Braun could be in the distant past, and the torch of “stardom” may have already been passed to the new generation of guys like Mike Trout and Bryce Harper.  Which leaves the question, what exactly is Major League Baseball fighting for?

In the coming weeks and months there will be a lot of theories about MLB’s end game.  I’m sure Bud Selig and baseball’s higher ups will cite their commitment to the integrity and good will of baseball being their paramount concerns, but the reactionary nature of this process is an exercise in futility.  Failure to contemporaneously punish player PED use leaves baseball looking like nothing more than a scorned lover.  While trying to exact its revenge, baseball will continuously remind everyone that PED’s still make their way into the game.  They’ll tear down the stars and performances that make the game palatable.  What exactly did International Cycling gain by pursuing Lance Armstrong so far after the fact?  Nothing except relegation to a status as an entirely compromised sport.   I suppose that counts as an end game, just not a good one. 

The only thing we know for certain is that this is not a good business move in the foreseeable short-term.  Major League Baseball will likely end up spending hundreds of thousands if not millions of dollars on this process to harm itself.  It would be economically prudent to just let one of these PED fueled players punch Bud Selig in the face.  The result would be the same as the law suit:  Black eye for baseball, diminished reputation for the player. 


There is another perspective to all this legal boxing that needs mention.  Major League Baseball may feel obligated to pursue this lawsuit.  They may feel that in order to honor the terms of the Joint Drug Agreement that they are required to pursue all reasonable measures to uncover violations of the Agreement, and this law suit fits the bill.  Even if nothing comes of it, Major League Baseball can then say “Hey, we did everything we could to stop the abuse.  We tried, so blame the players, not us.”  It’s not a stretch to think that one of Bud Selig’s trusted advisors made this exact point.  “We can win the battle of public opinion about who’s to blame.”

 The problem is baseball is simply trying to save face because they know they’re fighting a losing battle.  Cheaters (if that’s how you perceive them) will always remain a step ahead.  As long as the economic stakes are high enough and a competitive advantage is perceived, some player, somewhere, is still going to try to beat the system.  Baseball can “win” the battle of public opinion and still come out the loser.  When third parties start getting blamed, it’s out of frustration, not commitment to a solution.  This is not just true for professional sports but all walks of life.  Obesity is an issue?  Blame big gulps.  Violence in schools is on the rise.  Blame video games.  The flaw in logic is human nature.  Searching for solutions often leads to ill-advised and resource consuming crusades against speculative “causes” of the problem.  Major League Baseball is just following suit (pun intended). 

By the time this gets settled, which it almost certainly will, baseball will have likely moved onto a more recent crisis of integrity.  Maybe they’ll get what they want, maybe they won’t.  The logic and reason behind all of this may not just be flawed, it may be non-existent.  For now, the only congratulations that go out are to the law firms involved in baseball’s latest crusade, as they’re the only ones who we know for certain will benefit.