The Wilpons test their defense in the pages of the Daily News

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As has become standard practice, the day after the New York Times says something bad about the Wlipons/Madoff case, the New York Daily News has a story — sourced, quite clearly, by Wilpon’s lawyers — endeavoring to counter it.  Today’s story: explaining the Wilpon defense.

And that defense:  “hey, if the Securities and Exchange Commission had no clue that Madoff was a fraudster, how on Earth could the Wilpons be said to have “known or should have known” that things weren’t on the up-and-up?”

And you know what? That defense has some surface appeal.  It’s the SEC’s job to sniff out such frauds. If they can’t do it, why should the Wilpons be expected to?  But here’s my problem with it, provided by Daily News itself:

In attacking the SEC, the Wilpons are echoing the claims in a civil suit brought against the commission in 2009 by Phyllis Molchatsky and Steven Schneider, two alleged Madoff victims who claim the SEC’s “negligence, incompetence, inexperience, inattentiveness and laziness” is to blame for the epic scandal.

“For at least 16 years, the SEC’s failure to follow basic investigative procedures and practices, or even to observe simple common sense, allowed Madoff to perpetuate his scheme, drawing in innumerable new victims who were totally unaware that the government agency sworn to protect them had fallen down on the job,” their suit says.

As lawyers annoyingly say sometimes, that argument proves too much.  It’s one thing to say that the SEC was itself hoodwinked and unable to uncover Madoff’s crimes, which is how a defense attorney unrelated to the Wilpons characterizes the defense in the story.  If that’s the case — if the SEC, using all of its investigative powers and native experience and intelligence hit a dead end — of course the Wilpons shouldn’t have been expected to do better. But it’s another thing altogether to say the SEC didn’t even try and was epically incompetent, and thus the Wilpons should be judged by that standard too.

Indeed, the other side of the accusations in that above quote is that anyone who “was able to observe simple common sense” or anyone who wasn’t “negligent, incompetent, inexperienced, inattentive or lazy” could have figured Maddof’s fraud out. Just because the federal agency charged with looking into Madoff was utterly incompetent doesn’t mean that reasonable, sophisticated investors with better information at their disposal about Bernie Madoff than the SEC had shouldn’t have been expected to do the basic kinds of due diligence the Wilpons are accused of not doing.

Put differently, if the city cop on the corner “fell down on the job,” people on the street aren’t permitted to break the law and can’t point to the face-down cop as a defense when the more attentive county sheriff comes to arrest them.  People still have a duty to act in a reasonable manner and behave the way the law expects them.

I’d have a lot more faith in the Wilpons’ defense if it was the SEC going after them. Because, yeah, it would take a lot of nerve for the SEC to say “you should have done better than us.”  But it’s not the SEC going after the Wilpons. It’s a trustee appointed to represent the interest of people who were wronged by Madoff. His claim isn’t that the Wilpons should have done better than the SEC. It’s that the Wilpons should have done better than the did based on the information they had at their disposal.  As such, pointing at the SEC as their defense doesn’t totally do it for me.

Max Scherzer will not be ready for Opening Day

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Ten days ago Nationals ace Max Scherzer said he’d be ready for the start of the regular season. “I’m gonna do it,” Scherzer said.

[Ron Howard from “Arrested Development” voice] — No, he’s not:

Nationals manager Dusty Baker said that Max Scherzer is not on track to be the team’s opening day starter, and will most likely open the season as the third pitcher in the rotation.

He’s still projected to make it to the opening rotation, taking the hill, most likely, on Thursday April 6 against the Marlins. At least if the schedule doesn’t slip any more.

Scherzer, as you probably know, has a stress fracture in the knuckle of his right ring finger, which has messed with his preparation and has caused him to alter his grip a bit. As of now Stephen Strasburg will get the Opening Day nod.

Theo Epstein named The World’s Greatest Leader

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Fortune Magazine has put out a list of The World’s Greatest Leaders. Not the greatest business leaders, not the greatest leaders in a given industry, but the Greatest Leaders, full stop. The greatest according to Fortune: The Cubs’ Theo Epstein.

For some context, Pope Francis was third. Angela Merkel was 10th. Lebron James was the next greatest sports leader, ranked 11th. Take Fortune’s methodology with a grain of salt, however, given that it has John McCain above Merkel — what, exactly, does he lead now? — and Samantha Bee in the top 20.

So what makes Theo the world’s best leader according to Fortune?

The Cubs owe their success to a five-year rebuilding program that featured a concatenation of different leadership styles. The team thrived under the affable patience of owner Tom Ricketts, and, later, under the innovative eccentricity of manager Joe Maddon. But most important of all was the evolution of the club’s president for baseball operations, Theo Epstein, the wunderkind executive who realized he would need to grow as a leader in order to replicate in Chicago the success he’d had with the Boston Red Sox.

I don’t want to take anything away from what Theo has done — he’s a Hall of Fame executive already in my view — but I feel like maybe one needs to adjust for the fact that this is a baseball team we’re talking about. They’re the whole world to us and their brands are nationally and even world famous, but as an organization, sports teams are rather small. There are guys who run reasonably-sized HVAC companies with more employees than a baseball team and they don’t get the benefit of an antitrust exemption and a rule which allows them to get their pick of the best new employees if they had a bad year the year before.

Really, not trying to throw shade here, just thinking that being the spiritual father for 1.2 billion Catholics or running a foundation that serves 55 million needy children — like the woman who comes in at number 14 — is a bit of a tougher trick.

But this will make a great framed magazine article on Theo’s wall in Wrigley Field.