Let’s talk about unwritten rules

Monday night, the San Diego Padres and Texas Rangers played a baseball game. In that baseball game, the Friars’ best player did what he does: hit the ball a very long way.

That grand slam, incidentally, capped off an evening where the young shortstop blasted two homers and drove home seven. The Rangers, however, seemed extremely upset at Tatís, and showed their displeasure during the game by throwing behind star third baseman Manny Machado, who hit immediately afterwards.

The Padres went on to trounce the Rangers 14-4, but Rangers manager Chris Woodward was angry with Tatís instead of his own team’s lackluster effort.

But in the eyes of Rangers manager Chris Woodward, Tatis shouldn’t have been swinging in the first place.

“There’s a lot of unwritten rules that are constantly being challenged in today’s game,” Woodward said. “I didn’t like it, personally. You’re up by seven in the eighth inning; it’s typically not a good time to swing 3-0. It’s kind of the way we were all raised in the game. But, like I said, the norms are being challenged on a daily basis, so — just because I don’t like it doesn’t mean it’s not right.”

Even Tatís’ own skipper, Jayce Tingler, argued that Tatís was in the wrong for hitting a grand slam that helped his team win.

This entire affair has been fascinating to me. As a lawyer, I deal with rules on a daily basis; essentially, laws are no more than rules of conduct. I’ve touched on these issues before, but I’ve never actually addressed the subject directly. So let’s talk about unwritten rules. And in order to do this, we’re going to start at the most basic level: what is a rule, anyway?

You might think this is an easy question, but it’s actually not. Maybe your boss wrote down on a sheet of paper “Office Rule: no taking toilet paper from this bathroom,” added it to the employee manual, and hung it on the bathroom door. That’s a pretty straightforward rule: it’s written down that you can’t take toilet paper from the office bathroom. Maybe he held an office meeting and announced the rule orally, but never wrote it down. Is that a rule? Rules don’t technically have to be written down, after all.

But maybe your boss didn’t do either of those things. Maybe he has a policy against taking toilet paper from the bathroom at work, but never announced it. Maybe everyone considers it an implied part of existing rules against misuse of company resources. Maybe it’s considered so widely understood that a written or oral directive isn’t necessary. You see where I’m going with this, of course: at some point between a written rule and a vague notion, a rule ceases to be a rule and becomes just some person’s belief of how people should act.

This is actually really important, because rules govern our daily life. As early as 1913, courts were holding that unwritten rules were unenforceable, like this opinion from the Court of Appeals of Kentucky in Louisville & N.R. Co. v. Cox,

It is apparent that it would be unfair to an employé for a company to have unwritten or secret rules, under which he might be discharged when he had no notice of them; employés are not expected to obey rules or follow regulations of which they have no knowledge. If an employer may formulate secret rules by which his employés are to be guided, and claim the right to discharge an employé, who is working for him under contract, because of the infraction of such rules, the employés contract of employment would be of little value to him.

(Yes, by the way, that is really how the original opinion spelled “employee.”) The Louisville and N.R. Co. opinion, though, states the most important reason why unwritten rules are disfavored in the law: the lack of notice to the people expected to follow that rule. Thus, whilst unwritten rules are today permissible in some contexts, they remain extraordinarily disfavored and the burdens in upholding them are high. That’s why laws and court rules are written down.

Although courts have inherent supervisory and administrative powers to carry out their duties, “[i]t is unrealistic to expect all counsel, including those who may primarily practice in other counties, to be aware of the unwritten rules for assignment of cases...

It’s also why unpublished court orders aren’t precedential. The law essentially says that if you want your rule to be enforceable, people have to be on notice of what it says, and the best way to do that is to write it down.

When a rule isn’t written down, it means different things to different people. Let’s go back to our toilet paper hypothetical. Assume that you’re a new employee at the office. You witness Jennifer, Jamal, and Jordan all take a roll of toilet paper from the bathroom. The boss witnesses all three heists, and then fires only Jamal. Based solely on this, what’s the rule?

• You can’t take toilet paper from the bathroom.
• You can’t take toilet paper from the bathroom unless you ask first.
• You can’t take toilet paper from the bathroom more than once or you will be fired.

All of these three are possibilities. After all, for all you know, Jennifer and Jordan asked first. Maybe Jamal had taken toilet paper multiple times. Maybe Jamal had taken the good toilet paper the boss really liked. Maybe the boss was also going to fire Jennifer but felt sick and went home for the day. The simple reality is that there isn’t enough information to figure out what the rule is just from these facts even if you’re there and witness them in person. In fact, if you ask ten people in the office what rule was violated, you’ll probably get ten different versions of the rule, all of which are slightly different.

But notice isn’t the only reason unwritten rules are so disfavored. If a rule isn’t written down, it’s easy to take a sinister turn with it. Maybe the rule is that “only Black employees can’t take toilet paper,” which is why Jamal was fired. Maybe the rule is “only LGBTQ employees can’t take toilet paper.” Maybe Jamal has a disability like Inflammatory Bowel Disease that requires the use of a lot of toilet paper, and the boss decided he just used too much. Maybe the employer doesn’t want employees to know the rule at all, and simply wants them to be uncomfortable. When rules aren’t written down, they cannot be facially valid. In other words, you can’t be sure that the language of the rule is fair to everyone, and you can’t be sure it’s fairly applied to everyone.

It’s for this reason that unwritten rules in sports fare no better in court than unwritten rules in other contexts. In Lesser v. Nesho County Community College, a court in Kansas held that an unwritten rule requiring a “cup check” of all players on the baseball team constituted an assault, and the nondisclosure of other unwritten team rules constituted fraudulent misrepresentation. The famous case of Moore v. Bertuzzi is known in legal circles for other reasons, but began as a challenge to the unwritten rules about fighting in the National Hockey League.

So now we turn to Fernando Tatís, Jr., the subject of this article. Did Tatís know about the rule? No, and his father played in Major League Baseball too. That’s problem number one: you can’t give universal notice of unwritten rules. But maybe Tatís is an outlier. Surely other players know of this rule.

Oh okay. So it’s just Tatís and E-Rod then, right? Surely nobody else -

Well, you can’t get to the Hall of Fame unless you know this rule, right?

But in all seriousness, the punishment for a violation of this unwritten rule seems to be one of your teammates having to get out of the way of a fastball, which is dangerous and unfair to your teammate. Also, does your teammate know about this rule? How is that teammate selected? (In any event, the rule is also stupid, because it’s statistically wrong, but that’s better fodder for another article.)

Is the rule fair on its face? No, because we don’t know what the face of the rule actually is. Tatís, as the team’s best hitter, is usually allowed to swing away on a 3-and-0 pitch. So is the rule “You can’t swing away 3-and-0 if you have a big lead,” how many runs is a big lead? Seven? Five? Four? When does the rule apply? What if it’s the first inning and the visiting team just scored ten runs in the first in the playoffs? Unwritten rules cannot be fair on their face because nobody knows what their contours are. I guarantee you that if you asked 25 MLB players what this purported “unwritten rule” says, you’ll get 25 different answers about the number of runs and inning necessary for it to be applied.

And then there’s the question of equal and fair application of this unwritten rule. Rangers manager Woodward, after all, admitted that he doesn’t have his own players follow the rule: “I tell my guys all the time, I don’t want you to take the 3-0. I don’t care who you are, that’s just the best pitch in baseball to hit and that’s been proven.” Consider: the Rangers considered this unwritten rules violation to be so flagrant that their pitcher threw behind Manny Machado, but their own manager encourages the same violations from his own players?

Then there’s the part we don’t want to talk about, but should anyway: unwritten rules are more likely applied in ways which conform to our own racist, sexist, or other biases. MLB’s unwritten rules have a long and disturbing racist history. The ban on Black players in the sport was an unwritten rule, you see. I’ve written before that rules with racist purposes at their outset or inextricably intertwined with those purposes are inseverable from the racism which spawned them, and so it’s no surprise whatsoever that the players most frequently cited for violating these rules are Black and Brown players, as we saw with Juan Soto last year.

This, then, is the biggest problem with unwritten rules: it is far too easy to twist them into being a justification for whatever bad acts you really want to do. Back in 1979, Davey Lopes homered on a 3-and-0 pitch with his Dodgers up by twelve over the visiting Reds. Reds reliever Dave Tomlin threw inside at Lopes, and the result was a brawl in which the Dodgers’ utilityman Derrel Thomas, who is Black, fought the Reds’ Rick Auerbach. Then this happened:

Before the next day’s game, Cincinnati players decided to draw names of the Dodgers out of a hat, representing their assignments in the eventuality of another fight.

Every slip of paper said the same thing: Derrel Thomas.

There, the unwritten rules strangely believed that the appropriate action after a 3-0 swing was to fight a Black man for defending his teammate who swung 3-0. It’s interesting how these rules are applied depending on whom you want to punish.

All of which is to say that unwritten rules really aren’t rules at all. To be a rule, you have to have three things: notice to people you expect to follow the directive, facially fair language, and fair, uniform application. Baseball’s unwritten rules have none of those three. Fernando Tatís, Jr. didn’t do anything wrong: if an unwritten rule were worth following, it would be written down.

Sheryl Ring is a litigation attorney 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.