Alex Anthopoulos has a problem

Atlanta’s MLB team was already off to an inauspicious beginning to the 2019-20 offseason after being correctly called out by Cardinals reliever Ryan Helsley for their racist tomahawk chop cheer. After last week, it doesn’t appear things will be improving for the franchise from here. The Major League Baseball Players’ Association launched an investigation regarding these comments to the Athletic from Atlanta General Manager Alex Anthopoulos (emphasis mine):

“We always take up until the last day [to announce our option decisions] because things occur — trade scenarios, signings,” he said. “And look, we’re still obviously at the beginning of the offseason. We’ve got to make decisions on these players at this time because the language in their contracts dictated that we had to make those decisions today. But we know the landscape can change quite a bit between now and spring training. We examined the free-agent market. We’ve definitely done a pretty good analysis now that the World Series is over. We could at least have general conversations with agents, just in terms of expressing interest.

“Every day you get more information. And we’ve had time to connect with 27 of the clubs — obviously the Astros and (Nationals) being in the World Series, they were tied up — but we had a chance to get a sense of what the other clubs are going to look to do in free agency, who might be available in trades. So, the three weeks have been productive for us, just getting more information. All that shaped some of the decisions that we made. But we know there’s going to be a lot more information to come, and things are certainly going to develop over the next few months, and there will be a chain reaction with certain signings — someone signs in a certain place, maybe another player that’s not available today becomes available at that time. So, it’s going to be pretty fluid, and I think we’re in a good position to start the offseason.”

MLBPA Executive Director Tony Clark responded with swift condemnation:

And Anthopoulos responded with this statement:

“In advance of the general managers meetings, I called around to clubs to explore the possibility of potential off-season trades. At no time during any of these calls was there discussion of individual free agents or the Braves’ intentions with respect to the free agent market. To the extent I indicated otherwise during my media availability on Monday, I misspoke and apologize for any confusion.”

So let’s break this down. Do Anthopoulos’ original comments constitute “clear description of club coordination,” as Clark suggests? Or was it innocuous, as Anthopoulos argued later?

As I’ve written before for FanGraphs, the preeminent legal definition of collusion in the context of professional sports is from Darren Heitner and Jillian Postal, who wrote a particularly excellent note on the subject for Harvard Law School’s Journal of Sports and Entertainment Law.

Collusion at its core is collective action that restricts competition. Under federal law, particularly the Sherman Anti-Trust Act (the “Sherman Act”), collusion is prohibited; however, because of labor exemptions, what constitutes collusive, prohibited behavior in specific sports leagues varies based on the league’s negotiated collective bargaining agreement (“CBA”).

Now, in case you were wondering, the word “collusion” doesn’t appear in the Major League Rules, and it doesn’t appear in the Collective Bargaining Agreement either. However, the Collective Bargaining Agreement does say in Article XX – governing the Reserve System – that rights under the CBA are individual, not collective.

The utilization or non-utilization of rights under Article XIX(A)(2) and Article XX is an individual matter to be determined solely by each Player and each Club for his or its own benefit. Players shall not act in concert with other Players and Clubs shall not act in concert with other Clubs.

That’s the language that bars collusion. As Marc Edelman explained for Forbes:

Although collusion under Baseball’s collective bargaining agreement is not identical to collusion under U.S. antitrust laws, the language and case precedence track similarly. Under antitrust law, mere parallel behavior among competitors is not enough to trigger a violation. But, parallel behavior along with a plus factor is sufficient.

That’s just a fancy way of saying that the mere fact that everyone is acting in the same way isn’t enough on its own to trigger a violation of the CBA’s collusion language.

Finally, the differentiation Anthopoulos made between trades and free agents is important because, in theory, every trade between teams is a coordinated attempt by those teams to set the value of players. Trading James Paxton for Justus Sheffield (and other prospects) means that James Paxton is worth Justus Sheffield (and other prospects), and future trades will use that as a referent. Exchanging J.T. Realmuto for Sixto Sanchez and Jorge Alfaro means that the Phillies and Marlins, two enterprises that are supposed to be in competition with one another, have fixed the price of a J.T. Realmuto at a Sixto Sanchez and a Jorge Alfaro.

In a sense, those trades are themselves anti-competitive, because it means that the value of similar players has been set, and the players who were traded have been removed from the market. But no one would say those trades were an unreasonable restraint on competition. The Red Sox can’t file a grievance because the Yankees and Marlins “colluded” on Giancarlo Stanton.

So with this background, let’s look at what Anthopoulos said, separating out the money quote.

And we’ve had time to connect with 27 of the clubs — obviously the Astros and (Nationals) being in the World Series, they were tied up — but we had a chance to get a sense of what the other clubs are going to look to do in free agency, who might be available in trades. So, the three weeks have been productive for us, just getting more information. All that shaped some of the decisions that we made.

The key language here is two-fold. First, Anthopoulos suggests that Atlanta had discussed offseason plans with 27 other teams. In a vacuum, that’s not necessarily collusive; after all, team executives will be expected to share information to some degree. If Anthopoulos and, say, the Blue Jays’ Mark Shapiro had lunch, during which they agreed that Gerrit Cole is an awesome pitcher, that’s both (a) not collusive, and (b) technically sharing information. Everyone knows Gerrit Cole is awesome. The CBA doesn’t bar information sharing in all circumstances. What it bars is teams acting in concert - and that brings us to the second key part of Anthopoulos’ statement: “but we had a chance to get a sense of what the other clubs are going to look to do in free agency.”

Let’s go back to our lunch between Anthopoulos and Shapiro. Let’s say that Mark Shapiro told Anthopoulos that the Blue Jays weren’t planning to pursue Cole in free agency. That tells Anthopoulos that there is one fewer bidder for Cole’s services—and that allows Anthopoulos to lower his bid to Cole accordingly. (And yes, I am very well aware that neither Atlanta nor Toronto is likely to be in on Cole this offseason. This is but an example.) Repeat 27 times, and all of a sudden Anthopoulos has a very real idea of what Cole’s market is, and a better idea of that market than Cole and his agent do. Acting in concert can be as simple as sharing information in such a manner as to change how those teams behave.

The question is not one of intent, but rather one of impact. Under 1913 case called United States v. Patten that we don’t need to prove specific intent: “by purposely engaging in a conspiracy which necessarily and directly produces the [anticompetitive] result which the statute is designed to prevent, they are, in legal contemplation, chargeable with intending that result.”

That’s why Anthopoulos’ later walk-back of his comments both recognizes the severity of his misstep and doesn’t make sense. Anthopoulos said that “at no time . . . was there discussion of individual free agents or the Braves’ intentions with respect to the free agent market.” The problem isn’t necessarily that Anthopoulos didn't share the Braves’ plans. It was that he said previously that “we had a chance to get a sense of what the other clubs are going to look to do in free agency.” Anthopoulos is saying that other teams were sharing information with him. Anthopoulos is saying, basically, that Atlanta doesn’t collude, but every other team does. Way to throw your fellow GMs under the bus, Alex!

Now, it’s entirely possible Anthopoulos did misspeak (multiple times), and there is no collusion going on. Contrary to the MLBPA’s statement, Anthopoulos’ penchant for inserting his foot in his mouth is not, without more, sufficient to prove concerted, coordinated action in violation of the CBA. However, that’s only because Anthopoulos’ admission is not necessarily true. If Anthopoulos’ statement is true, it amounts to a de facto admission of collusive activity in violation of the CBA. That Anthopoulos’ response wasn’t to disavow the existence of collusion generally, but rather to disavow collusion by his team only, is a frightening indicator for the direction of MLB labor relations over the coming offseason.

Sheryl Ring is a litigation attorney and Legal Director 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.