In 2001, Martha Stewart sold all of her shares in a company called ImClone. In and of itself, that wasn’t problematic; people buy and sell shares all the time. But two days later, when it became public knowledge that the company’s Erbitux cancer treatment was a bust, ImClone stock tanked. By selling when she did, Stewart saved nearly $50,000. It turned out that her Merrill Lynch broker, Peter Bacanovic, had learned of trouble ahead with ImClone and alerted Stewart, advising her to sell. Stewart had used non-public information to profit, which lawyers call “insider trading.” That’s illegal— and she spent five months in prison as a result.
What does Martha Stewart have in common with the Astros? Actually, quite a lot. The law frowns harshly on gaining an unfair competitive advantage through gleaning non-public knowledge. That’s the whole point behind insider trading laws: as a society, we don’t think it’s fair that a person can make a profit off of information that isn’t supposed to be public. It’s also why the law protects trade secrets: proprietary, private company information that the Restatement of Torts first delineated as protected in 1939.
Enter the Astros— among other teams. As Ken Rosenthal and Evan Drellich wrote for the Athletic,
Electronic sign stealing is not a single-team issue. Major League Baseball rules prohibit clubs from using electronic equipment to steal catchers’ signs and convey information. Still, the commissioner’s office hears complaints about many different organizations — everything from mysterious people in white shirts sending signals from center field to elaborate systems involving television cameras and tablets. But MLB has not punished any club, at least publicly, for violating sign-stealing rules since 2017, when the Red Sox were disciplined.
There was more going on that year.
Four people who were with the Astros in 2017, including pitcher Mike Fiers, said that during that season, the Astros stole signs during home games in real time with the aid of a camera positioned in the outfield.
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The Astros’ set-up in 2017 was not overly complicated. A feed from a camera in center field, fixed on the opposing catcher’s signs, was hooked up to a television monitor that was placed on a wall steps from the team’s home dugout at Minute Maid Park, in the tunnel that runs between the dugout and the clubhouse. Team employees and players would watch the screen during the game and try to decode signs — sitting opposite the screen on massage tables in a wide hallway.
When the onlookers believed they had decoded the signs, the expected pitch would be communicated via a loud noise — specifically, banging on a trash can, which sat in the tunnel. Normally, the bangs would mean a breaking ball or off-speed pitch was coming.
Now, as I wrote last year about the Astros, stealing signs is, in and of itself, not illegal. Rules barring sign-stealing using technology weren’t actually implemented until February of this year, so what the Astros did in 2017 wouldn’t be barred by those rules either.
In fact, the Astros’ set-up seems well-designed to circumvent the rule that landed the Red Sox in hot water for their Apple Watch fiasco. The Red Sox, you see, were punished for having the Apple Watch in the dugout in violation of rules barring technology in the dugout for that exact reason. The Astros learned from Boston’s mistake, it seems, and ensured their low-tech system included no technology in the dugout at all. The television screen, which would be barred in the dugout, sat outside of it.
Now, to be fair, Rosenthal and Drellich say that the Astros violated the extant rules.
However, the Astros’ actions in 2017 were a violation of the rules even as written then: “Major League Baseball Regulations … prohibit the use of electronic equipment during games and state that no such equipment ‘may be used for the purpose of stealing signs or conveying information designed to give a Club an advantage,’” commissioner Rob Manfred said in a 2017 statement.
But that statement in and of itself isn’t indicative of what regulation the Astros violated, although the Commissioner’s plenary authority is such that he can punish essentially whatever he wants. At the end of the day, however, whether the Astros violated the letter of the rule or circumvented it through devious ingenuity, the advantage the Astros gained from electronic sign stealing is exactly the type of unfair edge we talked about before. Why?
Let’s look at the difference between sign-stealing by a runner at second base and a high-speed camera like the one the Astros had in center field. An Edgertronic camera, for example, according to the Driveline company website, shoots 500 frames per second at highest resolution and up to 17,000+ frames per second. In other words, that’s precision and speed that a human person simply can’t replicate. This is related to what lawyers call a “reasonable expectation of privacy”— what we can reasonably expect a third party to see is not considered private, whereas what a reasonable person cannot be expected to see is protected.
Now, MLB players generally have— necessarily— well above average hand-eye coordination and vision. That said, it’s unreasonable to expect a human to be able to act as quickly or accurately as a high-speed camera. A runner at second base can look in at the catcher’s sign and use signs of his own to relay that information to the hitter. Those signs, in turn, are visible to the team playing defense. Everything is in the open. Everything is public.
There’s no expectation of privacy in a catcher’s signs relative to a base runner who can see them in plain view. It’s reasonable to expect a runner at second base to see signs put down by a careless catcher. It is not at all a reasonable expectation to expect high-speed cameras to be employed by the home team in order to decode and relay the visiting team’s signs, because it’s something the visiting team can’t replicate. And that’s the key difference here.
If Major League Baseball allows the Astros or their defenders to argue that the use of advanced technology in sign-stealing is a reasonable, expected part of the game, MLB is essentially sanctioning two unacceptable outcomes. First, home teams will have a built-in advantage which simply cannot be quantified. Sophisticated sign-stealing systems— and beyond— will become an inefficiency.
Carlos Beltran, who along with Alex Cora allegedly developed the sign-stealing system, argued otherwise:
[In] the game of baseball, guys for years have given location and if the catchers get lazy and the pitcher doesn’t cover the signs from second base, of course players are going to take advantage.
I don’t call that cheating. I call that using the small details to take advantage. I think baseball is doing a great job adding new technology to make sure the game is even for both teams.”
Winning baseball games via a technological arms race does more than harm pitchers, though— it changes the game irrevocably. Assume, for example, that the Tampa Bay Rays played the Minnesota Twins in a playoff series, where the two teams finished with identical records to 2019. If the Twins had a sign-stealing system more sophisticated than the Rays, they’d have a huge advantage by virtue of being the home team for more games in the playoff series, despite having played in a much weaker division. It’s a simple matter of fair play: if the visiting team can’t do it, the home team shouldn’t be able to do so either.
Now, you might argue that home field advantage is no sure thing, as the 2019 World Series shows. But that leads us to the second reason MLB needs to crack down on technological sign stealing— it will necessarily require other teams to respond in kind with their own attempts to gain advantages. At some point, technological interference begins to interfere with the integrity of the game.
For example, that same camera the Astros used to steal opponents’ signs could just as easily be used to read the catcher’s lips— or the lips of other players or coaches. So if the Dodgers installed a microphone beneath the pitcher’s mound at Dodger Stadium, allowing them to hear conversations between opposing pitchers and catchers, why is that prohibited where the Astros’ high speed camera is not? After all, the pitcher and catcher have far less expectation of privacy speaking out loud within earshot of a baserunner than does a catcher flashing signs hundreds of feet from a high-speed camera. What about tapping the opponent’s bullpen phone? Or even putting a high-speed camera in the opponent’s bullpen?
The correct place to draw the line is barring all technological surveillance altogether, because the alternative is weaponized surveillance inevitably leading to a baseball “Spygate.” There is no acceptable line to be drawn between types of electronic surveillance of opponents, because any type of surveillance is simply too easily abused. The road between sign stealing and outright spying is a good deal shorter than we think.
So for that reason, MLB needs to make an example of the Astros. No, they shouldn’t lose their World Championship; you can’t unring that bell, and they won the games regardless. But as can be seen, there’s ample reason for Manfred to invoke the “best interest of the game” clause of the MLB Constitution here. Even if the Astros didn’t violate the letter of the rules, they certainly did engage in conduct which violated the spirit of fair play and sportsmanship which undermines those rules. The alternative to a strict punishment would be to set a precedent which undermines, well, the best interests of the game. So hefty suspensions and fines can and should be levied— not solely because of what the Astros did, but also to ensure no one else follows their lead.
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.