MLB Commissioner Bud Selig speaks during a news conference in New York

MLB’s takeover of the Dodgers could imperil baseball’s antitrust exemption

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Yesterday I noted that Major League Baseball may be wary of a fight with Frank McCourt because it has a lot of rules with respect to club ownership that exist simply because owners agree to them and that, if challenged, there are likely several that wouldn’t hold up in court.  One of them — Major League Baseball’s putative right to approve who buys a team and enters the ownership club — could be seriously jeopardized in all of this.

You know how it works: a team goes on the market and the bidders line up. Before the deal is done, MLB “approves” the winning ownership group. And that group is not necessarily the highest bidder. There is much talk, however, about who Bud Selig likes and who he doesn’t, who is friends with Jerry Reinsdorf and who isn’t and that sort of thing. This is the step where Mark Cuban’s ambitions get thwarted.  It’s also a step that probably violates antitrust laws and, according to the only court that has ever considered the matter, does not fall into baseball’s more-limited-than-you-think antitrust exemption.

Flash back 18 years to the case of Piazza v. Major League Baseball (831 F. Supp. 420 (E.D. Pa. 1993) for those of you who care), in which some gentlemen from Pennsylvania tried to buy the San Francisco Giants and move them to Florida. Then-Giants’ owner Bob Lurie was going to sell, but MLB stepped in and indicated that it would not approve the sale. The buyers sued, arguing (among other things) that baseball illegally restrained free trade in the market in which baseball teams are bought and sold. Baseball argued that it was allowed to do this pursuant to the antitrust exemption.

The trial court agreed with the would-be buyers during the preliminary stages of that case, ruling that the antitrust exemption didn’t apply to the purchase of teams.

Granted, this wasn’t a final decision on the merits. Rather, the court basically ruled that if the plaintiffs could prove that MLB wrongfully thwarted the sale — say, that baseball had no legitimate business basis for excluding a potential ownership group –they could win. Of course it never got that far. Having seen that its antitrust exemption was in peril, baseball settled with the plaintiffs, paying them $6 million for their trouble, and the case went away and does not now serve as any sort of binding precedent.

Since that time, baseball has continued to approve or deny “ownership applications” as though they were country club memberships as opposed to the restraint of the sale of goods in a free market. It has been able to get away with this because, to my knowledge, no current owner selling a team has challenged baseball’s ability to approve buyers — remember, they themselves got into the club through this very process — and, with no dispute, there can be no court case. Both the Cubs and the Rangers sales had the potential for this inasmuch the team sales were thrown into court, but neither instance created a situation in which the selling owner wanted to sell to A, but baseball wanted to sell to B.

So, back to the present: Frank McCourt is making serious noises about suing Major League Baseball. No matter how this all shakes out, it’s hard to see it ending in any way other than a sale of the Dodgers.  As is suggested by the legal experts cited in today’s article from Bill Shaikin in the Los Angeles Times, the only way that McCourt won’t sue over the specifics of the sale is if baseball agrees to take the highest bidder.  If that highest bidder isn’t someone Bud Selig wants to let in his club — say, I dunno, some skeezy businessman from some unpronounceable former Soviet Republic who is on record saying that he wants to give out the biggest free agent contracts in recorded history — Selig could have a serious dilemma on his hands:  allow a potential maverick (Maverick?)  into the club or risk re-litigating the Piazza case.

I want to see Frank McCourt gone and I want to see a responsible owner in Los Angeles with a minimum of fuss.  But boy howdy, it would be fun to see Major League Baseball’s anti-competitive practices blown away too, so I can’t say that I, as a popcorn-eating gawker to all of this, will be disappointed either way.

Marlins acquire starter Dan Straily from the Reds

CINCINNATI, OH - SEPTEMBER 3: Dan Straily #58 of the Cincinnati Reds throws a pitch during the first inning of the game against the St. Louis Cardinals at Great American Ball Park on September 3, 2016 in Cincinnati, Ohio. (Photo by John Sommers II/Getty Images)
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The Miami Marlins have acquired starting pitcher Dan Straily from the Cincinnati Reds. In exchange, the Reds will receive right-handed pitching prospects Luis Castillo and Austin Brice and outfield prospect Isaiah White.

For the Marlins, they get a solid starter who logged 191.1 innings of 113 ERA+ ball last year. Straily has moved around a lot in his five big league seasons — the Marlins will be his fifth club in six years — but it was something of a breakout year for him in Cincinnati. The only troubling thing: he tied for the league lead in homers allowed. Of course, pitching half of his games in Great American Ballpark didn’t help that, and Miami will be a better place for him.

Castillo is 24. He split last season between high-A and Double-A — far more of it in A-ball — posting a 2.26 ERA over 24 starts. Austin Brice is also 24. He pitched 15 games in relief for the Marlins last year at the big league level with poor results. He seemed to blossom at Triple-A, however, after the Marlins shifted him to the pen. White was a third round pick in the 2015 draft. He played low-A ball as a minor leaguer last year, hitting .214/.306/.301.

A mixed bag of young talent for the Reds, but stockpiling kids and seeing what shakes out is what a team like the Reds should be doing at the moment. For the Marlins: a solid mid-to-back end starter who may just be coming into his own.

Have Hall of Fame Voters actually made the PED thing More complicated?

Sammy Sosa
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The story coming out of this year’s Hall of Fame balloting is that the BBWAA voters are finally easing their antipathy toward players with performance enhancing drug associations.

Jeff Bagwell — the subject of unconfirmed PED rumors — made the Hall! Pudge Rodriguez, who was named in Jose Canseco’s book and who had a . . . curious physical transformation around the time PED testing came online, made it on the first ballot! Barry Bonds and Roger Clemens, whose PED use was well-documented, saw their vote totals advance above the 50% mark, making their future elections look more likely!

It’s an interesting development, and one I’m obviously pleased with, but I wonder if the BBWAA’s new approach to PED guys, while far more forgiving than it used to be, has actually become more complicated in practice.

I ask this because I look way, way down the ballot and I still see Sammy Sosa scraping by with around 8% of the vote. I ask this because I still see Gary Sheffield at 13%. I ask this because when Mark McGwire was on the Today’s Game ballot in December, no one really stumped for him at all. I ask this because, even though Bagwell and Mike Piazza got in eventually, they still had to go through a lot of hazing first and I suspect, if they hit the ballot for the first time again tomorrow, the same arguments and delay would occur with respect to their cases.

In light of that, what I suspect has happened has not been a wholesale surrender of the anti-PED voters. Rather, I think it has been a transformation. One in which a moral test — did he use PEDs or not? — has been discarded as a threshold question and a scientific/physiological test — would he have been great even without the PEDs? — has replaced it. In essence, voters are becoming “PED discounters” in the aggregate. Making calculations as to whether a guy was, in their mind, a creation of PEDs or not.

Such an approach explains these new voting patterns as well as those in recent years.

  • Ivan Rodriguez may have been called out by Canseco and may have noticeably shrunk over an offseason, but his calling card was his defense behind the plate and voters, I suspect, have told themselves that such a thing is not PED-aided.
  • Bonds and Clemens may have been PED users, but each of them was undeniably talented and, if you discount for the PED use, hey, they’re still all-time greats.
  • Sammy Sosa’s case rests disproportionately on homers and, as everyone knows, PEDs = instant dingers, so no, he’s not gonna cut it.

And so on.

As I said, I’m glad that the strict moral test — did he use or not? — is losing its hold on Hall voters. But I do not think the “did PEDs make him who he was test?” is a good approach either. Baseball writers are in no better a position to assess the physiological and performance enhancements caused by pharmaceuticals than they are to be judges of character and morality. Given the identities of players confirmed to be PED users, the old eye test implicit in these cases is famously faulty (Neifi Perez, anyone?). The idea that PEDs only affect home run totals — and not, say, the ability for a player to take the abuse of the catcher position for 21 seasons — is crude and ignorant.

I suppose it’s naive to expect voters to completely disregard PEDs in their assessment of players. It’s a bell that cannot be unrung. But while we may, thankfully, be moving away from a moral test with respect to drugs, it’s been displaced by a scientific test that is no more reasonable in practice.