Law & Batting Order - Cheating in Baseball. By Adam Van Grack

Updated: Dec 12, 2018

Introduction to Adam Van Grack and Law & Batting Order


For me, baseball is more than just a game. Baseball is a shared passion that connects both strangers and loved ones, and it brings us all together. Some of my earliest memories are going to baseball games with my father. I can vividly remember jumping up with my father as the crowd at Memorial Stadium in Baltimore erupted with euphoria after an Eddie Murray grand slam. I recall the anticipation of knowing I was about to see my first Ozzie Smith back flip at the 1995 All Star Game in Pittsburgh with my brothers and father. And nothing made me smile more than when my son jumped out of his seat with the fireworks to celebrate the first home run he had ever witnessed at Busch Stadium III in St. Louis.


While I did not eventually grow up to be a baseball player (I could never hit a curve ball), I did become a lawyer. I have been practicing law for many years now, and I have argued complex legal issues before many different courts throughout the United States. I currently practice litigation, business law, and sports law at Longman & Van Grack, LLC. While I grew up in the Washington DC area, I went to college and law school in St. Louis at Washington University. As a baseball fan free agent upon arriving in St. Louis, I instantly became a St. Louis Cardinals fan, and I have been part of Cardinals Nation ever since.


As a lawyer, I am constantly evaluating laws, statutes, cases, decisions, and rules for the benefit of my clients. However, I have also come to realize there are similarities between following the rules/decisions within baseball and the following the rules/decisions within our judicial system. Thus, as a baseball fan and a lawyer, I wanted to share some of my opinions related to the rules and decisions within baseball. Thus, Law & Batting Order was born.


Through Law & Batting Order, I plan to evaluate some of the rules and decisions within baseball from a legal perspective. Do certain baseball rules make sense? Should certain rules be changed? Was a legal decision related to a baseball issue properly decided? Was a rule evaluated properly? My opinions in Law & Batting Order will almost always take on a legal perspective – after all, that’s how I write when I’m addressing a court of law. Hopefully, through Law & Batting Order, I will be able to bring a legal perspective to the game of baseball… and, in the process, share my love for the game of baseball with you.



Baseball and cheating have a long history. From the 1919 Black Sox Scandal to Sammy Sosa's corked bat incident in 2003, forms of cheating have always existed within Major League Baseball In fact, the St. Louis Cardinals have been involved with cheating incidents in previous years -- including the “Hacking Scandal” when former scouting director Chris Correa used a former colleague’s password to access the Houston Astros’ player database. However, are all punishable offences in baseball derived from clearly written rules? Do Major League Teams know exactly what type of actions constitute punishable cheating offences? In light of the existence of cheating and baseball’s rules, this article will address cheating in Major League Baseball, where the enforcement of baseball’s rules derives from, and whether baseball’s enforced rules are clearly articulated.


There are two types of cheating in major league baseball: cheating which is a punishable offense and cheating which is not against the rules but acknowledged to be improper. While an article about cheating in baseball could span an entire treatise, this article will focus on where baseball’s rules which ban certain types of cheating emanate from and why some actions are (or are not) punishable.

Major League Baseball’s Rules

There are essentially three sources for rules in Major League Baseball:

  1. The Professional Baseball Rules (“Major League Rules”) (which are updated periodically),

  2. The Official Baseball Rules (“Baseball Game Rules”) (which are updated annually),

  3. Major League Baseball’s Joint Drug Prevention and Treatment Program (“MLB Drug Program”).

Violations of the Rules

Almost every time a player, coach, manager, staff, or team is accused of punishable cheating, it will be based on a violation of either the Major League Rules, the Baseball Game Rules, or the MLB Drug Program. Generally, the Major League Rules govern activities of players, teams, and league regarding off-field actions or actions that affect the game of baseball. For example, Pete Rose was accused of violating Major League Rule 21 when he bet on baseball:

“Any player, umpire, or Club or League official or employee, who shall bet any sum whatsoever upon any baseball game in connection with which the bettor has a duty to perform, shall be declared permanently ineligible.”

In contrast, the Baseball Game Rules govern activities within the field of play of baseball during Major League Baseball games. For example, George Brett was accused of violating what is currently Baseball Game Rule 3.02 through his excessive use of pine tar on his bat in 1983. Interestingly however, since 1983, this bat-related Baseball Game Rule has changed and now clarifies that George Brett would not have been deemed “out” if the same incident occurred today (“If the umpire discovers that the bat does not conform to (c) above until a time during or after which the bat has been used in play, it shall not be grounds for declaring the batter out, or ejected from the game.”) (emphasis added).


There also exists specific rules governing Major League players and teams under the MLB Drug Program which is referenced in the Major League Rules. However, this article will not specifically address the rules within the Drug Program governing “Prohibited Substances by Players” for simplicity purposes only. Nonetheless, while not specifically addressed in this article, there are indeed additional rules – specifically related to drugs and prohibited substances – governing Major League Players and Teams under the MLB Drug Program. However, none of the rules within the MLB Drug Program alter the analysis found herein.


The MLB Constitution

In addition to the rules described above, there also exists a Major League Constitution (“Constitution”). While the Constitution does not articulate rules for players and teams to follow, the Constitution does give the Commissioner broad plenary powers. Specifically, under Article II, Section 2 of the Constitution, the Commissioner is permitted

“To investigate, either upon complaint or upon the Commissioner’s own initiative, any act, transaction or practice charged, alleged or suspected to be not in the best interests of the national game of Baseball, with authority to summon persons and to order the production of documents, and, in case of refusal to appear or produce, to impose such penalties as are hereinafter provided.” (“Article II Power”)

This Article II Power investigatory language is important because it is upon this broad power of the Commissioner (and the punishment clause which follows in Section 2) within the Constitution that many of the recent Major League Baseball scandals have been resolved.


Non-Punishable Offenses

Another, important question to ask is why certain rules are codified for punishment and others left unclear. No rule or directive within baseball makes non-electronic stealing of catcher signs to pitchers (‘sign stealing’) itself a punishable offence, and non-electronic sign stealing has never been punished by an umpire or the Commissioner’s Office. While stealing signs is often frowned upon by many players and coaches, sign stealing clearly occurs at times by offensive players who are occupying second base. I suspect the reason why it is not against any rule to steal signs is because enforcement of the rule would be nearly impossible. How can an umpire confirm that the offensive player on second base was communicating a sign to the batter or dugout about the next anticipated type of pitch? Similarly, it is not against the rules to anticipate a certain type of pitch based on a pitcher’s position, so why would it be against the rules to anticipate a certain type of pitch based on a catcher’s position.

Similarly, in 2017, a ball pitched by St. Louis Cardinals pitcher Brett Cecil ended up becoming stuck to Yadier Molina’s chest protector. Many people argued that Molina or Cecil should have been penalized for the incident. However, while Baseball Rule 3.04 has mandated requirements for a catcher’s glove and Baseball Rule 3.02 has mandated limits for substances on bats, the rules do not limit any substances on catcher’s equipment. Thus, Yadier Molina did not violate any baseball rule if he had pine tar (or other sticky substance) on his chest protector. Could the Commissioner’s Office penalize Molina, Cecil, or the Cardinals through his Article II Power? Possibly. However, given the complete silence in any capacity on the issue of catcher’s equipment within the rules or any Commissioner’s Office communication, such a penalty would seem blatantly unfair.


Enforcement Problems

Unfortunately, there are also some ambiguous enforcement or grey areas in the determination of punishable cheating within Major League Baseball. Most troubling is the fact that the Commissioner has used his broad Article II Power to punish teams for actions which do not violate any Major League Rule or Baseball Game Rule.


Curious Example #1: Cardinals Spying

Nowhere in the Major League Rules or Baseball Game Rules are there any specific rules against or restrictions on office spying – such as using a former colleague’s computer password to access another team’s computer systems. However, the St. Louis Cardinals were penalized in 2016 for Chris Correa’s past years’ computer spying/hacking actions against the Houston Astros by the Commissioner under his authority through his Article II Power. While Chris Correa was appropriately sentenced to 46 months in prison by a federal judge for his actions, should the Cardinals have been punished? There was no violation of the Major League Rules or Baseball Game Rules for their actions, and there has been no findings that anyone other that Chris Correa was aware the hacking had occurred or was occurring. And if this is an action that Major League Baseball wants to prevent, why hasn’t there been any additions to the rules to make clear violations for this type of activity?


Curious Example #2: Red Sox and Diamondbacks Electronic Devise Usage

Nowhere in the Major League Rules or Baseball Game Rules are there any specific rules about electronic devices (such as Apple Watches or iPads) in a team’s dugout. However, the Boston Red Sox and Arizona Diamondbacks were penalized in 2017 for merely having electronic devices in their dugout by the Commissioner under his authority through his Article II Power. The only other authority used by the Commissioner in assessing these penalties was an alleged “directive” issued in 2000 by Sandy Alderson, MLB operations chief, regarding electronic devices (“Alderson Directive”). While not established in any form in any of the major league rules, the Alderson Directive stated:

“Please be reminded that the use of electronic equipment during a game is restricted. No club shall use electronic equipment, including walkie-talkies and cellular telephones, to communicate to or with any on-field personnel, including those, in the dugout, bullpen, field and-during the game-the clubhouse. Such equipment may not be used for the purpose of stealing signs or conveying information designed to give a club an advantage.”

Curiously, similar language to the Alderson Directive has never been codified in either the Major League Rules or the Baseball Game Rules, despite (1) there being eighteen years since it was written and (2) there being a labeled section on “Electronic Equipment on Field” within the Baseball Game Rules. [1] While the Constitution does allow the Commissioner to create regulations, bulletins, and directives from “in matters relating to the Commissioner’s functions and the administration of the game of baseball that are not inconsistent with this Constitution,” a one-person-derived directive could clearly not become a multi-decade enforceable rule (Art. XI, Sec. 3). For example, (1) there is no centrally located collection of such regulations, bulletins, and directives, (2) the Alderson Directive was not created by the Commissioner, and (3) the Alderson Directive is seemingly not directly related to the “Commissioner’s functions and the administration of the game of baseball.” Presumably, such an important “rule” should be located within the public and actual Baseball Game Rules. While the source of punishment was never clarified by the Commissioner’s Office in its 2017 devices punishments, it appears that the Commissioner used his plenary power under Article II, Section 2 of the Constitution to penalize the Boston Red Sox and Arizona Diamondbacks for using electronic devices (i.e., Apple Watches) in their dugouts during games within the 2017 season. Nonetheless, as the language of the Alderson Directive has never been included in the Major League Rules or the Baseball Game Rules, it is not accurate to say that the use of such electronic devices is against the “rules” of baseball.

[1] The Baseball Game Rules Index shows “Electronic Equipment on Field” governance at Rule 3.10(b). However, Rule 3.10(b) merely states: “The use of any markers on the field that create a tangible reference system on the field is prohibited.” No language remotely similar to the Alderson Directive appears in the Baseball Game Rules.

Curious Example #3: Astros Spying

As stated above, nowhere in the Major League Rules or Baseball Game Rules are there any specific rules against or restrictions on spying. Nonetheless, a curious incident occurred during the 2018 American League Playoffs. During the American League Championship Series, staff of the Houston Astros were observed closely monitoring or spying into the dugout of the Boston Red Sox from the stands. Seemingly, this spying offense – while not against any rule in the Major League Rules and Baseball Game Rule – could be punishable by the Commissioner’s Office under the Article II Power similar to the 2017 Red Sox Dugout-Equipment-Use Incident or the 2016 Cardinals Spying Incident. However, the Commissioner elected not to punish the Houston Astros because the Commissioner’s Office deemed that

"A thorough investigation concluded that an Astros employee was monitoring the field to ensure that the opposing Club was not violating any rules.”

However, no specific written or clearly-articulated baseball “rules” were violated by the Red Sox, Diamondbacks, or Cardinals during their incidents either (again, note that the Alderson Directive has never been codified in any baseball rule). In fact, the Cardinals “spying” activity was shown to have not been approved by the team, whereas the Astros “spying” activity was apparently approved by the team.


Interestingly, based on comments found in news articles and quotes, the use of binoculars to anticipate a certain type of pitch has been stated to be against the rules of baseball by the Commissioner’s Office; however nowhere in the Alderson Directive, Constitution, Major League Rules, or Baseball Game Rules does a restriction on the use of binoculars, telescopes, or other sight-increasing devices appear.


Conclusion

Overall, Major League Baseball has many rules. Almost every instance of punishable cheating involves a direct violation of one of the codified rules of baseball (Major League Rules, Baseball Game Rules, or MLB Drug Program). However, as has been shown herein from previous punishments, the Commissioner also has the plenary power to enforce uncodified or grey area rules through his Article II Power. Unfortunately, confusion, ambiguity, and inconsistent enforcement exists related to the Commissioner’s enforcement of certain unwritten rules of Major League Baseball.

Clarification and understanding regarding any punishable rule are critical, and in the field of law, no person can be punished for violation of a law or rule which is not codified and clearly articulated. As we discovered during the 2018 playoffs compared to actions in 2017 and 2016, there is a fine line between what constitutes an offence which the Commissioner’s Office will or will not use the Article II Power to enforce an issue that it deems punishable.

From a legal perspective, it is my strong opinion that all rules which the Commissioner’s Office chooses to enforce should be clearly articulated within the codified Major League Rules, Baseball Game Rules, or MLB Drug Program. To continue to enforce arbitrary rules related to the actions of Major League Baseball Teams is simply unfair.


Adam Van Grack is an attorney at the law firm of Longman & Van Grack, LLC practicing litigation, business law, and sports law. Adam is a fan of the St. Louis Cardinals having attended Washington University in St. Louis for college and law school. Adam has been previously appointed as the Chair of a U.S. Olympic National Governing Body.