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Ohio Supreme Court says bobbleheads aren’t legally free giveaways

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Recently, the Ohio Board of Taxation ruled that the Cincinnati Reds owed $88,000 in back sales taxes on promotional items the team purchased to give away to fans. Mostly bobbleheads. The Reds appealed that to the Ohio Supreme Court and, on Wednesday, the court gave the Reds a win in what ended up being a very interesting and entertaining legal opinion, with no shortage of baseball stuff in it. You can read it here.

The law in Ohio, as in all states with a sales tax, is that if you’re buying something, you pay tax on it. The exception, as in most states, is that if you’re buying something in order to resell it (i.e. from a wholesaler, distributor or whatever) you don’t pay taxes. Ohio taxation authorities took the position that, since the Reds gave away the bobbleheads, they are the end purchaser, they don’t fall under the resale exception and they thus had to pay taxes on the bobbleheads they bought from the manufacturer. The Reds took the position that they were, technically, re-selling bobbleheads to fans, so they did not have to pay a tax. The fans do, and since ticket prices include taxes, the taxes have been paid.

Given that no money changes hands when you pick up a bobblehead on your way into the ballpark on giveaway day — heck, given that it’s quite literally a “giveaway” — you may wonder how you, as a fan, are being “re-sold” bobbleheads and how, exactly, the Reds won their argument. I could, if I felt inclined, talk about the pro-business, anti-tax nature of the current Ohio Supreme Court and wave my hand at it all being a giveaway to an Ohio company like the Reds, but you don’t want to hear me rant about that. Instead, I’ll just sum up the court’s reasoning.

The court said, based on the testimony of the Reds’ CFO, that they advertise which games will include promotional items in advance so fans purchase their tickets expecting to receive the bobblehead and that the ticket prices reflect the cost of the bobbleheads, passed on to the customer. Why don’t bobblehead day tickets cost more, then? Because, the Reds said (and the court agreed), they smooth out the costs over the course of all 81 home games. The important thing here, the court said, is that the Reds promise fans a bobblehead, the fans buy a ticket expecting to get one, they buy tickets with the cost of the bobbleheads baked in and, bam, that makes it a sale, not a giveaway.

Which also means that, contrary to what teams tell you and what you have come to expect, it’s not first-come-first-serve, on bobbleheads and you’re not out of luck if you show up late and can’t get one. From the court’s opinion:

The tickets themselves do not state or include any guarantee regarding promotional items. However, [The Reds’ CFO] testified that fans who purchase tickets to games at which promotional items are offered “[a]bsolutely” believe that they are purchasing both the promotional item and the right to view the game at the ballpark. He said that fans expect and feel entitled to receive the promotional items, and he explained that it would be a “public relations nightmare” if the Reds reneged on the commitment to distribute them . . .

. . . In the event that the Reds run out of any given promotional item, Healy testified that the Reds “will remedy it.” He acknowledged that in these instances, the Reds may not be able to provide exactly the same promotional item, but he said that the Reds would “make it right” in ways such as giving another promotional item or complimentary tickets to fans who had failed to receive the designated items.

I have showed up late on bobblehead days in the past and they’ve been out. I never realized that, on such occasions, I could complain to the Reds and get something else, including free tickets. Indeed, neither the Reds nor any other team will tell you that you can do this. I suspect they’ll only do this if you complain and complain and then only if you get to the right people.

Yet, based on this Supreme Court opinion, the Reds are OBLIGATED to do that, or else they have breached their contract to you! That must be the case because the entire ruling is based on the idea — which I still think is baloney, but never mind — that you are purchasing a bobblehead as opposed to the Reds giving it away. There’s an entire section in the opinion talking about the bobblehead being “consideration” for your purchase. Under Ohio law, as of Wednesday anyway, it’s just as much a part of your ticket as the baseball game is.

So, my friends: next time the Reds or Indians hold a bobblehead day, I suggest that you wait until the second or third inning to show up and they have run out of the bobbleheads. Then walk right up to the ticket counter and ask for a free ticket to the next game or, at the very least, some good substitute swag. If they don’t hook you up, sue them for breach of contract. If you do, you’ll have the Ohio Supreme Court on your side.

(h/t to Boteball for the heads up)

Report: Astros’ assistant GM yelled ‘Thank God we got Osuna!’ at female reporters

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Last year, then-closer for the Blue Jays Roberto Osuna was arrested in Toronto on an assault charge. He allegedly assaulted the mother of his then three-year-old son. The charge was eventually withdrawn in exchange for a peace bond, but Major League Baseball still suspended Osuna for 75 games without pay.

Due to the off-the-field ugliness, the Astros were able to acquire Osuna on the relative cheap, sending Ken Giles, David Paulino, and Hector Perez to the Blue Jays. Osuna has been mostly great for the Astros since the trade, finishing the 2018 season with 12 saves, a 1.99 ERA, and a 19/3 K/BB ratio in 22 2/3 innings in his new uniform. This year, Osuna racked up an American League-high 38 saves with a 2.63 ERA and a 73/12 K/BB ratio in 65 innings.

With the Astros holding a 4-2 lead in the top of the ninth in ALCS Game 6 against the Yankees, manager A.J. Hinch called on Osuna to get the final three outs to send his team to the World Series. He ended up allowing a leadoff single to Gio Urshela, then a game-tying two-run home run to DJ LeMahieu. Nevertheless, the Astros won it in the bottom of the ninth thanks to José Altuve’s walk-off two-run homer off of Aroldis Chapman.

In the postgame celebration, Stephanie Apstein of Sports Illustrated reports that Astros assistant general manager Brandon Taubman yelled towards a group of three female reporters, “Thank god we got Osuna! I’m so … glad we got Osuna!” Taubman repeated the phrase half a dozen times. One of the reporters was wearing a purple domestic violence awareness bracelet.

The Astros declined to comment on the issue and did not make Taubman available for an interview. That shouldn’t come as a shock because the Astros have organizationally failed repeatedly to meaningfully address Osuna’s behavior. GM Jeff Luhnow released a poorly thought out statement last July about Osuna, claiming that the Astros’ due diligence was “unprecedented,” and citing that Osuna is “remorseful” and “willingly complied with all consequences,” despite pleading not guilty and not having had his day in court yet, thus no consequences. The Astros released another statement in August defending their belief that “Roberto deserved a second chance.”

Later that month, Osuna went after his critics, saying, “Everybody is judging me for things they don’t know. I don’t like that.” In the postseason, teammate Ryan Pressly defended Osuna from a heckler, telling the fan, “You can talk all the sh– you want. Just don’t bring that stuff up.”

The Astros also kicked out a fan who protested Osuna’s presence by holding up a sign displaying a domestic violence hotline number. After receiving plenty of criticism for that, the Astros decided to display flyers, featuring the National Domestic Violence Hotline number, in women’s restrooms at Minute Maid Park.

Taubman’s behavior is not the first strike for the Astros on this issue. Acquiring Osuna was strike one. Luhnow’s statement and the club’s subsequent statement were strikes two and three. Osuna’s backlash was strike four, Pressly’s defense of him was strike five, and the whole issue over the DV hotline sign was strike six. The Astros are in danger of having the side strike out on this issue.

It’s also worth mentioning that Luhnow worked for McKinsey and Company, a management consulting firm, before getting into baseball. McKinsey has been consulting for the Astros since 2017, The Athletic’s Evan Drellich reported in July. McKinsey has, ahem, a checkered past.

The Astros have clearly and intentionally thrown ethics to the side in order to run a baseball-related business. That they have repeatedly mishandled a very serious domestic violence issue within the sport shouldn’t come as a surprise, and it shouldn’t be surprising that the Astros are hoping the issue goes away with the World Series set to begin on Tuesday.

Update: The Astros released a statement. Via Chandler Rome of the Houston Chronicle:

The story posted by Sports Illustrated is misleading and completely irresponsible. An Astros player was being asked questions about a difficult outing. Our executive was supporting the player during a difficult time. His comments had everything to do about the game situation that just occurred and nothing else — they were also not directed towards any specific reporters. We are extremely disappointed in Sports Illustrated’s attempt to fabricate a story where one does not exist.

The Astros had an initial chance to respond to the story before publication and didn’t take Sports Illustrated up on it. They also didn’t deny that Taubman said what was reported. They’re disputing the context and the intended audience, but that doesn’t really make them look that much better. Perhaps an organization with a less spotty history would get the benefit of the doubt, the Astros certainly haven’t earned it.

Furthemore, Hunter Atkins of the Houston Chronicle and Hannah Keyser of Yahoo Sports both confirmed Apstein’s report. Atkins tweeted, “The Astros called this @stephapstein report misleading. It is not. I was there. Saw it. And I should’ve said something sooner.”