The players aren’t the ones who cheated

Let’s start today’s post with a hypothetical. I’m a lawyer, after all, and we love hypotheticals. Let’s assume that you are a mid-level employee at a a financial company. Your boss tells you that he has this brand new way for you to improve your performance and make some money. You’re not sure - you think it might be against the law - but your boss tells you that you have nothing to worry about. After all, he will have all the materials you need shipped to the office and paid for by the company. Besides, he has company lawyers tell you this law hasn’t been enforced in years, perhaps longer. There’s also the fact that if you don’t improve your performance, your boss might have to let you go - so you decide to go along with it. A couple of years later, your boss, who now works for the local office of the government regulator for your industry, announces this particular practice has always been illegal but only employees, and not the companies, would be punished.

It sounds farfetched, but in reality that’s pretty much exactly what Major League Baseball just did with its new ban on “sticky stuff,” which our managing editor Kenny Kelly discussed eloquently last week. As the Wall Street Journal reported a few days ago, teams - not just players - were buying substances like spider tack in large quantities and having them delivered to their stadia. The ban on those substances was drafted by MLB senior vice president of on-field operations Michael Hill, who spent several years in the Marlins’ front office. According to Diamondbacks ace and former Marlins prospect Zac Gallen, “[Hill] was in charge of an organization that was definitely at one point saying, ‘Hey, you’re going to need these things to help you.’” Gallen later told reporters that they “can read between the lines.”

It should be noted that Hill denied Gallen’s accusations, but this is far from the only evidence of teams’ involvement. Stephanie Apstein and Alex Prewitt wrote for Sports Illustrated that coaches supported the practice, and some teams even hired chemists.

An AL reliever, who says he uses a mixture of sunscreen and rosin, recalls a spring-training meeting in 2019 in which the team’s pitching coach told the group, “A lot of people around the league are using sticky stuff to make their fastballs have more lift. And if you’re not using it, you should consider it, because you’re kind of behind.” The clubhouse attendants of at least one minor league team, according to a player, stock cans of Tyrus Sticky Grip, another product intended to keep hitters from accidentally flinging their bats, and distribute them to pitchers who ask. The NL reliever who uses Pelican says he played for a team that hired a chemist—away from another club—whose duties include developing sticky stuff.

Apstein also reported that some teams create their own “sticky stuff” to be used by pitchers.

Writers like Buster Olney discussing the new ban have talked about how it essentially upends “an unspoken agreement between managers, players and teams to not ask the umpires to check pitchers because the use of substances was widespread and accepted as standard operating procedure.” But the fact that teams were ordering and creating the substances really made this new ban - which targets players with suspensions - both unfair and arguably a violation of the CBA. Consider: MLB is penalizing conduct by players which was at best encouraged, and at worst required, by the teams themselves.

Saying this new ban violates the CBA is going to be considered a Hot Take, but stay with me. The CBA includes this in Section XVIII (emphasis mine):

If during the term of this Agreement any Major League Rule, or other rule or regulation is proposed to be changed, the Clubs agree that they shall give the Association notice thereof, and shall negotiate the proposed change with the Association, provided that the obligation to negotiate with the Association provided by this Article XVIII shall apply only to (a) a change in a Player benefit under an existing rule or regulation and (b) the adoption of a rule or regulation which would change a Player benefit under an existing rule or regulation or impose an obligation upon the Players which had not previously existed. Except as specifically provided in this Article XVIII, the right of the Clubs to make any rule change whatsoever shall not be impaired or limited in any way, provided that the Clubs shall not make any change which is inconsistent with the provisions of any then existing agreement between the Clubs and the Association.

It’s that last line which is important here. Note this language references the teams (called “clubs” here), and the agreement between the teams and the Association at the time of ratification almost certainly allowed for the use of substances like Spider Tack if the teams were employing chemists and the like. But then, on page 83, is this language:

The Parties recognize that there are existing agreements between a Major League Club or Clubs and the Players or the Association, and between either of the Major Leagues separately and the Players or the Association. The Parties reaffirm such agreements and incorporate them as part of this Agreement insofar as they are not inconsistent with this Agreement. Such agreements shall be considered agreements between the Association and the Clubs or any of them for the purpose of the Grievance Procedure provided for in Article XI hereof.

Notably, this language does not limit the incorporation to written agreements, and I think there’s a good argument to be made that encouraging the players’ use of sticky stuff by clubs is an agreement between the players and the clubs that those substances are permitted. If the players were doing it without the knowledge of the teams’ front offices, that would be one thing, but here the teams are basically telling their players that using these substances is all right - before changing their minds and promising to discipline the players, not the teams.

In the law, we call this a “reliance interest.” If a person changes their behavior in reliance on another’s representation that such changed behavior was acceptable or expected, that person is entitled to consider such a representation to be a legally binding contract. Of course, if Rob Manfred were to comply with this legal doctrine, he would need to hold the teams as well as the players accountable - but since he works for the teams, he’s not going to do that.

Why is this important? Because whilst Manfred takes his victory lap for cleaning up the game, what really happened is something quite different. Teams told their players that using things like spider tack wasn’t just okay, it was encouraged. Players relied on that representation, and now players are being punished for it. If the players end up filing a grievance over this, remember that they’re not the ones who cheated.

Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.