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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)

And That Happened: Wednesday’s Scores and Highlights

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Here are the scores. Here are the highlights:

White Sox 8, Red Sox 7: Sox win! Chicago led by three in the seventh, blew that by the bottom of the eighth, but José Abreu hit a two-run jack in the top of the ninth to bring the White Sox back. The foundation of the win was the White Sox pouncing on Chris Sale for five runs in the first three innings. He struck out ten and only walked one, but when he wasn’t missing bats he wasn’t missing bats. Sale is still one of the best pitchers in the game but he hasn’t won at home in almost a year. “For some reason, I suck here,” he said after the game. Relatable. To any number of situations in basically of our lives.

Yankees 8, Blue Jays 7: The Jays jumped out to a 5-0 lead but there really isn’t any safe lead against the Yankees this year. Didi Gregorius homered in the second, Aaron Judge singled in a couple in the second as well and D.J. LeMahieu hit a two-run homer to tie things up at five in the fourth. It was tied up at seven by the bottom of the ninth and Gleyber Torres hit a walkoff single to win it for the Bombers. Lourdes Gurriel Jr hit two homers and a double in a losing cause.

The Yankees and Red Sox now head off to London. Blimey, cor, wot’s all this, then, etc.

Indians 5, Royals 3: Trevor Bauer finally had a great day after a couple of months of struggling, striking out 12 while allowing one run into the seventh. He didn’t even allow a hit until the fifth. Jake Bauers and Tyler Naquin homered in support. Francisco Lindor was 3-for-4 and Jason KipnisOscar Mercado and Jordan Luplow each drove in a run. Hunter Dozier hit a ninth inning grand slam on Tuesday. He struck out four times in four at bats here. Baseball is just the worst, you guys, right?

Padres 10, Orioles 5: Franmil Reyes hit two homers. The Padres hit five in all, with Eric Hosmer, Greg Garcia, and Hunter Renfroe going deep as well. This was the tenth time this year the Orioles have allowed five homers in a game. They’ve now allowed 165 homers on the year in 80 games. The 1970 Orioles allowed 125 all year long. Just sayin’.

Diamondbacks 8, Dodgers 2: Arizona was facing off against Dodgers starter Tony Gonsolin, who was making his big league debut and jumped out to a 4-0 lead, so, yeah. A three-run homer from Eduardo Escobar paced things in the first and the Snakes would never trail. Jarrod Dyson had three hits, knocked in a run and stole two bases. Russell Martin pitched in this one. Tossed a scoreless eighth, actually, and struck a dude out.

Rockies 6, Giants 3: The Giants jumped out to a 2-0 lead in the first but David Dahl hit a grand slam in the third and drove in five in all. Man of the match, right? Is that a thing we have in baseball? We should have that.

Rangers 4, Tigers 1: Mike Minor tossed a complete game allowing on run on five hits and needed only 108 pitches to do the job. Homers from Willie Calhoun, Danny Santana and Jeff Mathis backed him up. The game only took two hours and nineteen minutes. I’d say the Tigers had a plane to catch or something but they’re just playing the Rangers again today. Maybe they all had early reservations at Sammy Sofferin’s Wonder Bar and Indian Room. I hear that Latin troupe extraordinaire, the La Playa Dancers, led by the exotically beautiful Grace Conrad often play on Wednesday nights. Get there early, get a seat by the stage, fill up on Shrimp a la Powhatan and you’re living, buddy.

Phillies 5, Mets 4: Jason Vargas pitched great, giving up only one run to the Phillies for the first six innings, but he ran into trouble in the seventh. That’s when he gave up a second run and left, having struck out ten. Seth Lugo came on in relief and gave up a two more runs, and bing-bang-boom, tied at four, which is how it’d end in regulation. Stephen Nogosek came on to handle the 10th inning but couldn’t record an out, giving up a walk, a single and then a walkoff double to Jay Bruce to end the game. If you wanna feel bad for Vargas for having such a great start blown by his pen, know that a few days later he’s still trying to justify threatening a reporter with violence. Here’s what he said after last night’s game:

“I don’t think all the information is really out there. I don’t think this is a time to get into that. But I think that anybody that knows me, anybody that has played with me, there’s never been a situation like that. So to think it happened out of the blue, it’s foolish . . . “It’s over. Our organization made a statement. We put an end to it. But I think it’s pretty obvious all the info isn’t out there.”

Whatever, my man.

The Mets have lost four in a row. Philly’s seven-game losing streak is now way back in the rear-view mirror, with three straight wins over the Mets.

Angels 5, Reds 1: Yasiel Puig and Justin Bour exchanged solo sots to make it a 1-1 game until the eighth inning. The the Halos scored one more before Bour homered again, this time a three-run blast to give him a four-RBI night and to give the Angels a win. Bour has four homers in five games since being recalled from Salt Lake. You might say he’s really enjoyed the spotlight since being recalled:

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Nationals 7, Marlins 5: It was close until the sixth when Matt Adams hit a three-run blast to make it 4-1. The Nats added three more in the ninth, with runs coming on a wild pitch, a passed ball and a sac fly. They all count. And two of those runs were needed as the Marlins made it interesting with a four-run ninth inning rally of their own, with Bryan Holaday singling in a run and Curtis Granderson tripling with the bases loaded. The old man is still an artist with a Thompson.

Athletics 2, Cardinals 0: Daniel Mengden and his old-timey delivery stymied the Cards for six innings and three relievers finished the five-hit shutout. Beau Taylor and Matt Chapman went deep for Oakland. St. Louis has been shut out six times this season. Three of them have come in the last 14 games.

Mariners 4, Brewers 2: J.P. Crawford drove in three of the M’s four runs and scored the fourth, notching two RBI doubles and an RBI triple. Wade LeBlanc allowed two runs after coming in following an opener and the opener and two other relievers shut Milwaukee out. That’s three straight wins for Seattle.

Braves 5, Cubs 3: Atlanta took a 4-0 lead off of Yu Darvish early thanks to a wild pitch, a Brian McCann solo shot and a Nick Markakis three-run homer. Willson Contreras and Kris Bryant homered for Chicago and they’d add a third run on a Jason Heyward ground out, but otherwise Dallas Keuchel was solid — more solid before a 48 minute rain delay in the fourth than he was upon resuming the game after — and picked up his first win of 2019.

Pirates 14, Astros 2: It was 8-2 heading into the ninth when A.J. Hinch sent first baseman Tyler White to the mound. Sometimes those position players pitching do an OK job mopping up. White did not, allowing six runs on four hits — two of ’em dingers — while walking four. Every team has eleventeen relief pitchers but they’re all drag racers instead of horses and so none of ’em can go more than an inning, leading to silliness like this. Great game we got going right now, eh? Anyway, Josh Bell, Jung-Ho Kang, José Osuna and Kevin Newman homered and Corey Dickerson had four hits and three RBI. 

Twins 6, Rays 4: Minnesota jumped out to a 3-0 lead, had blown it by the seventh to trail 4-3 but then Nelson Cruz hit a go-ahead, three-run, two-out double in the seventh to give the Twins the win. The Rays have lost seven of nine.