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Native American group plans to file a $9 billion lawsuit against the Cleveland Indians over Chief Wahoo

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I think my record on the Chief Wahoo thing is pretty clear by now. I’m quite obviously not a fan. But there’s a big, big difference between thinking something is offensive and should be banished to history and thinking that thing actually entitles people to billions of dollars in legal damages. Some folks to whom I’d otherwise be sympathetic are going to learn that pretty quickly.

From Paul Kiska at ABC5 in Cleveland, brought to our attention by Big League Stew:

Robert Roche is the director of the American Indian Education Center and one of the plaintiffs planing to file a federal lawsuit in late July against the Cleveland Indians. The group says the team’s name and the Chief Wahoo logo are racist. The group wants a lot of money to help Native Americans with education, job training and housing.

“We’re going to be asking for $9 billion and we’re basing it on a hundred years of disparity, racism, exploitation and profiteering,” Roche said.

Normally it’s folks who support things like Chief Wahoo or the Redskins name who fail to grasp what does and what does not violate one’s rights. One need only search “Redskins” and “freedom of speech” to get a taste of that sort of baloney. Here, however, Roche and the American Indian Education Center are the ones who are missing the point of how things work in this country.

The Cleveland Indians are a private corporation. They, like any other private citizen, can be as offensive as they want to be. They can do more than put a Wahoo patch on their caps and jerseys, in fact! They could have a “We really, really hate Native Americans Day” at Progressive Field and hand out racist literature stamped with “The Cleveland Indians heartily endorse this message because, oh my god, we really hate racial minorities.” Now, I know some people who work for the Indians and know they wouldn’t choose to do that, but legally speaking, they totally could. That sort of freedom — and the corresponding freedom of baseball fans all over to boycott/ostracize them into the Stone Age if they did — is one of the beauties of America.

But do you know who could sue the Indians if they did that? No one. Well, some employees could based on a hostile work environment theory. And Major League Baseball could do whatever it wanted to up to and including any litigation it might choose that is consistent with the team’s and the league’s franchise agreement. But ordinary citizens couldn’t. They don’t have any more right to sue the Indians over Chief Wahoo than they’d have to sue the organizers of a Klan march on the statehouse, a jackwagon yelling things at people on a street corner or your racist uncle who had too many beers last Memorial Day and decided to tell you what he really thinks of that ethnic minority family who moved in down the street. Maybe those folks have some unpopular views, but our legal system protects their rights for good reason.

Of course Robert Roche and the American Indian Education Center likely know this. And I presume they are merely seeking out some headlines in order to draw attention to their cause. But ultimately this sort of stunt is counterproductive as a means of swaying public opinion. A lot of people hate Chief Wahoo and a lot of people love him. But a lot MORE people hate lawyers and litigiousness and are immediately suspect of someone who files — or, in this case, threatens to file — lawsuits against their beloved institutions. Especially ones with little if any legal merit.

Put differently: you’re not helping, dudes. Keep up the protests and the public pressure. Even think about narrow, focused legal action with actual merit such as the trademark challenge the Redskins just lost. But cut it out with the billion dollar damage claims.

People are getting hysterical over Dee Gordon’s positive test

FILE - This April 3, 1972 file photo shows Marvin Miller, executive director of the Major League Baseball Players Association, talking to reporters in New York. Miller, the union leader who created free agency for baseball players and revolutionized professional sports with multimillion dollar contracts, died Tuesday, Nov. 27, 2012 in New York. He was 95. (AP Photo/File)
Associated Press
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A dude testing positive for PEDs and getting suspended for 80 games should, actually, be taken as a sign that the system, however imperfect, still largely works. But the world of baseball can’t stop to acknowledge that. No, this is apparently a crisis. A crisis so dire that decades of labor developments apparently need to be scuttled.

That’s the message I’m getting from some folks in baseball media, anyway. Take this for example:

There’s a LOT going on there. For one thing, a casual dismissal of just how massively significant the concept of the guaranteed contract is in baseball. Marvin Miller is always cited as the man who brought the players free agency, but free agency would not have been valuable at all if teams could just void contracts. Just look at how the NFL and its phony salary numbers work. Miller and the MLBPA worked insanely hard to put that system in place and it’s insanely valuable to union membership. It’s not hyperbole to say that any movement on the part of the union to compromise the notion of guaranteed contracts would represent a complete and total repudiation of decades of its own work, and suggesting that it do so because we still get 5-7 PED suspensions a year is preposterous.

Then look at the word “option” there. Abraham wouldn’t have contracts be automatically voided. He’d only have them be voided at the option of an owner. This would give teams tremendous power to get out of bad deals and would give them no risk with respect to PED guys who happen to be on team friendly deals. If contracts were automatically void, underpaid players like Madison Bumgarner would have MASSIVE incentives to use PEDs. If they were merely voidable at the whim of the owner, the owners would have incentives with respect to drug testing other than making the game a clean one.

Finally, note how Abraham puts this all on the MLBPA. He’s not alone in this, as Buster Olney has been tweeting and writing all morning about what the union should and should not be doing to solve this problem. Obviously the union has a huge role as its players are the ones taking drugs, but to suggest that the union be the police force here and that it’s wholly incumbent upon it to solve this problem is silly.

For one thing, as I noted earlier today, a union’s purpose is to protect its members, not police them. To demand that they police them, to the point of undercutting some of their most important protections due to a disciplinary matter, is to turn the concept of a union on its head.

For another thing, as we learned throughout the height of the PED Era, ownership is not totally innocent when it comes to the permeation of PEDs in the game. The people who run baseball play a huge role in shaping the incentive structure of the game which causes some players to cheat. They are thus just as invested in and in just as good a position to help solve the problem at hand as the players are. They cannot, as these reporters would have them, sit back and demand that the MLBPA disembowel itself in order to eliminate PEDs from the game. It has to be a joint effort. Indeed, the drug rules in baseball have the word “JOINT” in the very title. It ain’t a Cheech and Chong reference, I can tell you that.

All of this reveals a certain hysteria that has always permeated the PED discussion in baseball coming to the fore once again. While they once ruled the game, PEDs are a relatively small problem now, comparatively speaking (note: neither Abraham nor Olney bother to establish that they’re actually a big problem or that things are getting worse; they merely assert it and assume it). A problem which, like drugs and cheating in every other walk of life, cannot be wholly eliminated and should not be ignored, but which can be and generally is effectively managed.

Yet here we are with two of the more influential voices in the game — and many others I’ve seen already today but didn’t bother to link here — pushing the panic button and demanding the ridiculous with no basis whatsoever. What is it about this subject, in this sport only, of course, that makes people lose their frickin’ minds?

Marlins’ Dee Gordon says he unknowingly took PEDs

Miami Marlins' Dee Gordon looks into his dugout after reaching third on a double by teammate Marcell Ozuna during the third inning of an exhibition spring training baseball game against the St. Louis Cardinals Thursday, March 3, 2016, in Jupiter, Fla. The Cardinals won 4-3. (AP Photo/Jeff Roberson)
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MIAMI (AP) Reigning NL batting champion Dee Gordon of the Miami Marlins says he unknowingly took the performance-enhancing drugs that led to his 80-game suspension, but he’ll accept the penalty.

The announcement of the suspension by Major League Baseball came shortly after the Marlins’ victory at Los Angeles on Thursday night. MLB said Gordon tested positive for exogenous testosterone and clostebol.

“Though I did not do so knowingly, I have been informed that test results showed I ingested something that contained prohibited substances,” Gordon said in a statement released Friday by the players union. “The hardest part about this is feeling that I have let down my teammates, the organization, and the fans. I have been careful to avoid products that could contain something banned by MLB and the 20-plus tests that I have taken and passed throughout my career prove this.

“I made a mistake and I accept the consequences.”

The 28-year-old Gordon led the majors in hits and stolen bases last year. He batted .333, became an All-Star for the second time and won a Gold Glove at second base.

The big season helped him earn a $50 million, five-year contract he signed in January.

He and Marlins manager Don Mattingly were together with the Dodgers for four years, but Gordon didn’t become a regular in Los Angeles until 2014. Gordon was traded to Miami in a seven-player deal in December 2014, and Mattingly became the Marlins’ manager this season.

“Dee is always a guy we felt could play, but at that point he was 145 pounds soaking wet,” Mattingly said during spring training. “Now he has turned into a man. He has put some physical strength on him, and he’s a different player.”

Following the suspension announcement, Mattingly said the Marlins will continue to support Gordon.

“I feel like Dee’s one of my kids, to be honest with you, because I’ve known him so long,” Mattingly said.

Shortly before the penalty was announced, Gordon hit an RBI single in the seventh inning and scored after forcing a balk as the Marlins rallied for a 5-3 win and a four-game sweep over Los Angeles.

Gordon became the seventh player to be suspended this year under the MLB drug plan. Last week, Toronto slugger Chris Colabello was penalized 80 games after testing positive for a PED.

Miami President David Samson said the Marlins “completely support the drug prevention program in every way.”

“Dee Gordon is a very important part of our team, and we all love him and support him,” Samson said. “That said, I don’t like or condone what he did.

“He will be back 80 games from now, and he will be welcomed back to this organization,” he added. “But in the interim period, we expect him, and we are positive that he will do everything that’s necessary to make it up to his fans, to his teammates and to this organization.”

The speedy Gordon is the son of former All-Star pitcher Tom Gordon.

The MLBPA continues to shoot itself in the foot regarding PEDs

Tony Clark
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Most players are adamantly anti-PEDs now. Unlike their complicit or passive predecessors, today’s players don’t, for the most part, accept PEDs as just part of the game. They’re competitors and they see PED use as their competition cheating. They consider these guys to be taking money and service time away from other players. They are legitimately angry about it. And they should be.

But the manner in which they have expressed that anger — publicly, emotionally or by being quoted at length by baseball’s top writer calling for draconian punishments — is neither the best way to address their concerns about PED use in the game nor is it in their best interests in a larger sense. Indeed, it undermines their interests and sets them up to be taken advantage of by the owners both with respect to PEDs and other matters which affect their lives and their livelihoods.

PED rules and every other rule which affect the circumstances of baseball players are the subject of collective bargaining. It’s union stuff, negotiated with ownership. And it’s a zero sum game. You make a concession, you get something in return. If you give up something for nothing, you get nothing. It’s like any other sort of negotiation. If you cease to treat it as one, you lose your leverage to get what you want. You get no points whatsoever for your personal virtue, your public position and what people not party to the negotiation think of you. Players loudly and publicly proclaiming their desire for the harshest possible PED penalties are like a man in midlife crisis walking into a Porsche dealership wearing a shirt that says “I will not leave here without a red 718 Boxter.”

Ownership knows that the players will agree to anything and will even put the anything on the table themselves. And they’ll take maximal advantage of the players. For example, maybe the players are in favor of a contract-voiding provision in the narrow case of PED use. Maybe they see it as something confined solely to drug situations. The owners could jump at that knowing full well that, for the first time, the union has caved some on the critical concept of guaranteed contracts in baseball and will use that as a basis to make further inroads later. Maybe the players want to suspend players pending their drug test appeal. The owners will nod and privately acknowledge that players will, in the right cases, negotiate away their due process protections. Once a party caves on something, even if it’s a broad concept, it’s extraordinarily difficult for them to later present a credible defense to that concept or to claim that it is sacrosanct.

At the same time, maybe there are things the players can actually GAIN if they’re more guarded in their approach. Many acknowledge that PED use is, at least in part, a function of players trying to keep their bodies together over the long grind of the baseball season. Meanwhile, players would love more off-days and changes to the schedule. Why not link these issues and, in exchange for some harsher penalties, force the owners to give them some schedule relief? Why not get something they want and need in exchange for giving something up? It’s an ideal situation for a party to a negotiation and it’s a situation lost if one spends months before the negotiation making it clear that they’ll freely give away something that would otherwise have to be paid for.

None of which is to say that the players cannot or should not try to get exactly what they want, up to and including, I dunno, an instant death penalty for PED users if they feel it’s necessary. It’s to say that, to get that, they have to be unified. They have to agree on a strategy to get what they want and execute it the same way every other strategy is executed in these situations. There is no negotiating strategy that has ever been helped by loudly signaling to your adversary what it is you’re trying to accomplish. Being guarded about what it is you value and how you value it in the context of a negotiation does not mean that you don’t value it. Demanding that the owners compensate you for an increased PED sanction does not mean that you’re pro-PEDs.

I look at Justin Verlander‘s public comments and the comments of other players who are angry at PED users and I understand where that anger comes from. But I also know that, if Marvin Miller or Don Fehr were running the union today, those comments would be made in communications with union leadership and fellow players for the purposes of developing a strategy, not in public for the purposes of venting anger. They would form the basis of a consensus with which a unified MLBPA could approach ownership in a way best calculated to accomplish the players’ goals. As I put it rather crudely on Twitter this morning, if players in Miller and Fehr’s day spoke publicly in a way that undermined the MLBPA’s negotiation leverage, they’d end up in body bags.

This morning I wonder what Tony Clark is doing to address the legitimate anger of players like Justin Verlander. Does he have their confidence that he can accomplish what they want to accomplish with respect to harsher PED penalties? Are their public comments actually frustration by players at what they perceive to be a union which doesn’t value their concerns? Or, alternatively, are the players simply not as invested in the sort of unanimity of voice that all unions require to be successful? And if so, why not? Is it because they’re complacent or has MLBPA leadership simply not done as good a job explaining to them the real consequences of a failure of solidarity?

Dee Gordon‘s suspension is not, in and of itself, a big deal. But it could have some big repercussions. The MLBPA and its membership had best be on the same page, publicly and privately, if they want to ride out the repercussions and shape their future in a way that best serves their interests. As opposed to the interests of ownership which, in the context of the CBA, is their adversary, even if their interests often coincide.

Dee Gordon’s suspension is likely to lead to a call for harsher PED penalties

Miami Marlins' Dee Gordon celebrates after hitting a double against the Detroit Tigers in the ninth inning of a baseball game Tuesday, April 5, 2016, in Miami. Derek Dietrich scored on the double. The Tigers won 8-7. (AP Photo/Alan Diaz)
Associated Press
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Objectively speaking there is no difference between Dee Gordon’s suspension for PEDs and anyone else’s. Abraham Almonte, for example. Or Cameron Maybin. Or David Rollins. All were guys who got their 80 games, served their time, came back and whose cases didn’t raise too much of a fuss. But Gordon’s suspension will almost certainly be talked about longer and more loudly and will likely lead to calls for harsher penalties and changes to the PED suspension rules.

Part of it is simply fame. He’s a pretty big name as far as these things go. The biggest since the Biogenesis guys a couple of years ago. He won the batting title last year. He’s the son of a famous major leaguer. There is a direct correlation between the volume and intensity of the narratives applied to one’s story and the fame of the subject of the story. For that reason alone Gordon’s story will last longer and loom larger.

Another reason — a bigger reason, I think — is timing. Gordon was seen by many to have had a breakout season in 2015 and, when it was over, he was rewarded for it with a nice five-year $50 million deal. The narrative will arise by, oh, 9AM today, that the suspension was “worth it” for Gordon and that he cashed in because of it, rendering his suspension a mere slap on the wrist. This is especially true given that his deal is severely backloaded. He’ll lose less than $2 million in salary in 2016 while collecting the other $48 million-plus. Totally worth it!

I understand why people will say that, but such a stance has some serious flaws. Among them:

  • It assumes that we or anyone else knows when Gordon began to take PEDs;
  • It assumes that we or anyone else knows how, in fact, Gordon’s performance was actually enhanced;
  • It forgets that lots and lots of people were talking about how Gordon’s “breakout season” was actually 2014, not 2015, rendering that whole “he juiced and then got his money” argument fairly problematic.

Those points will likely be ignored as arguments in favor of harsher penalties grow louder. Ken Rosenthal reminds us this morning that some have called for some form of contract voiding or clawing back of more money than just the salary earned while on suspension. Those calls too will likely grow louder. There will also be calls for changes in the appeal process. Like this one, which came moments after Gordon’s suspension was announced:

When you have an actual union member angrily call for the repeal of a collectively-bargained protection in punishment situations, you’re sort of through the looking glass. Or past a tipping point. Or something. You’re certainly in a world where the usual dynamics between employer and employee are not operative and, as a result, changes are inevitable. As we noted recently, players today are perhaps more adamantly anti-PED than the owners and the league are. They’re competitors reacting to cheating by their competition. The fuel for stronger penalties is likely to come more from them than anyone.

The union and the league will be negotiating a new Collective Bargaining Agreement this year. Performance enhancing drugs and their penalties will be a part of that. Expect harsher penalties and possibly different sorts of rules altogether. Expect Dee Gordon to be the poster child for these changes, even if his case is no different in form than that of Abraham Almonte, Cameron Maybin, or David Rollins. Expect emotion, rather than logic, to lead the coming debate.