Monday, March 17, 2014


"In this country the people have rights but the person has none."-- Henry James

"In the King's courtroom, rules are invented on the spot; sentences are handed down first, verdicts afterward- a sleight-of-hand assuredly practiced in Charles Dodgson's time, as it is now." -- Joyce Carole Oates on Alice in Wonderland

You don't have to believe in Alex Rodriguez's innocence to deplore his year-long suspension from baseball.  You don't have to sympathize with his plight to be appalled by the cynical, overzealous investigation the Commissioner's Office pursued to nail him.  And you don't have to be a civil libertarian either to bridle at the Kafkaesque arbitration proceeding through which baseball sought to cloak an arbitrary and draconian sentence in the respectable garb of considered justice. 

No, to decry baseball's handling of the entire Rodriguez affair, you merely have to believe that an institution which presumes to call itself the national pastime actually exemplify those sacred American values that justify its claim to the title.  And to believe, in addition, that this time around, in the name of restoring purity to the game, MLB made a mockery of them.  To purge one supposedly "intentional, continuous, and prolonged" user of performance-enhancing substances, the Commissioner's Office manufactured sham and vexatious lawsuits in order to trawl for incriminating documents and to co-opt complicit witnesses.  It threatened the immigration status of industrious legal residents.  It enlisted a band of would-be Pinkertons who impersonated law enforcement agents, bought stolen health records, and colluded with the thieves who purloined them.  And, finally, it struck with Tony Bosch a cooperation agreement that stands the Faustian logic of government proffers squarely on it head:  to prosecute an alleged user of illicit drugs, MLB shielded, indemnified, and remunerated an avowed dealer in them.   It even authorizes him to parlay his complicity into a book or movie deal.   Who says crime doesn't pay?    
"For purposes of this case, it is accepted that Bosch was a drug dealer whose activities... violated federal and state laws and regulations... [But] in exchange for [his] providing truthful information, MLB promised to dismiss Bosch and his brothers from its civil suit, refrain from seeking information or discovery from other Bosch family members, inform law enforcement of Bosch's cooperation, indemnify Bosch from civil liability by suits from Players as a result of his cooperation... [and] to pay Bosch's legal fees [and] to pay up to $2400 per day for personal security [$2400 per day for personal security?]... In addition, Bosch would be allowed to discuss with anyone the history of his involvement with Players, which could result in book, movie, and other media deals." In Re Alex Rodriguez, MLB Arbitrator Panel Decision No. 131, January 11, 2014, pp. 12, 22-23) ("Horowitz Decision") 
Of course, no one expects this particular Commissioner-- ascended from the ranks glad-handing, Midwestern Babbitry-- to pay heed to the frequency with which the country has succumbed to self-cannibalizing hysteria throughout its history because one phantom scourge or another has driven it to sacrifice liberty to purity and fairness to virtue.  Nor should anyone expect much from the horde of glorified gossip columnists who cover baseball like a Hollywood awards ceremony; the same self-appointed watchdogs whose pretense to expose fraud and mendacity rarely seems to extend from the players' locker room to the Commissioner's box or to the owner's lounge.

But where I ask was the MLB Player's Union when Selig and his caped crusaders embarked on their holy crusade?   Did the MLBPA not to think to intervene on behalf of one of their own and ask the Miami Dade Circuit Court to dismiss Commissioner's Office v. Biogenesis for its transparent abuse of the legal process?  Did the pernicious implications not occur to them?  That when all-powerful companies act as a private Attorneys General and investigate third-parties in order to expose their employees' moral turpitude--  however far afield from the workplace-- Americans, in general, and labor unions, in particular, enter a brave, new world bereft of Constitutional safeguards and of civil liberties? Perhaps Marvin Miller was a great deal more prescient than his successors care to acknowledge.   
Miller certainly wouldn't have missed the perverse irony that throughout the entire Rodriguez brouhaha, the Commissioner's Office conducted its investigation with the same contempt for fairness, rectitude, and transparency that they accused the third-baseman of violating on the diamond.  So brazen, in fact, was the Commissioner's office in advertising its disdain for basic principles of justice and due process that the Notice of Discipline Selig issued on August 5, 2013 produced the following chilling item of Orwellian doublespeak.
"Although we believe the Union is incorrect [that your discipline under the JDA can only be imposed in accordance with the schedule prescribed in 7.A  (1st violation = 50 games;  2nd violation = 100 games; 3rd violation = permanent ban)],  in the event the MLBPA prevails in [sic] your discipline must be in accordance with [] Section 7.A, the number of individual violations of the Program you have committed will necessitate the discipline be converted to a permanent suspension pursuant to pursuant to Section 7.A.3." 
Leave aside for a moment its inartful construction and the possibility for misinterpretation the sentence encourages accordingly.  Taken as its word, it appears to notify Rodriguez five months in advance of arbitrator Frederic Horowitz's ruling that baseball already has sealed his fate: vindication would only elicit further punishment.   That even if the arbitrator ultimately agreed with the Players' Association and applied the Joint Drug Prevention and Treatment Program's progressive disciplinary regime-- 50-games (1st offense), 100-games (2nd offense),  permanent suspension (3rd offense); that even if the arbitrator, acting accordingly, reduced his 211-game suspension to 50 games; no matter.  For the Commissioner already declared his intention to override it and to impose a "permanent suspension" notwithstanding.   The m.o. reeks of one of Stalin's show trials.   The Inquisitor decides the accused's guilt in advance but leverages the threat of more draconian punishment to extract the confession he needs in order to legitimize a preemptive verdict and to mask a fraudulent legal process.

Did Horowitz, by this logic, actually do A-Rod a favor? Rodriguez could have fared far worse perhaps. Nonetheless, the 33-page decision Horowitz signed reveals an arbiter no more inclined to be bound by explicit contractual language, past legal precedent, or elementary principles of fairness than baseball's Commissioner.  To quote Horowitz himself, the "Panel Chair 'shall be the judge of the relevancy and materiality of the evidence offered [but] conformity to legal rules of evidence shall not be necessary."  (Horowitz opinion, p. 15, n.8)(emphasis supplied)

To be sure, the grievance proceeding he oversaw displayed all the trappings and ceremony of a fair trial.  Witnesses gave sworn testimony.  Parties introduced physical evidence.  Counsel engaged in spirited advocacy.  And an ostensibly neutral arbiter rendered a binding decision.  But beneath the appearance of deliberative justice presided a charade of Orwellian dimensions.  A world where Suspicion was Guilt; Fiat was Law, and Denial was Obstruction.  To cite just a few of its anomalies.  The testimony of a complicit and co-opted "drug dealer" trumped the reliability of an objective scientific drug test.  Baseball executives doubled as impartial fact-finders and partisan witnesses.  The Commissioner enjoyed a trial immunity even the U.S. President doesn't possess.  Meanwhile, his Office's chief informant qualified for 5th Amendment privileges denied the accused; over whom hovered, in turn, the consummate Hobson's dilemma.   Either Alex Rodriguez could testify, risk charges of obstruction, and incur more severe punishment.  Or conversely, he could refuse to testify and invite the adverse inference of guilt that ultimately convicted him.  And this travesty America's game actually called due process?    

The 162-game suspension Horowitz decided upon finds its basic conceit in the supposed unprecedented gravity, flagrancy, and frequency of Rodriguez's transgressions.  According to MLB's arbitrator, the Yankee third-baseman (1) ingested a banned substances on at least three occasions over the course of three seasons; and (2) on those occasion, he ingested multiple illicit substances besides.
"From these unrebutted facts, the conclusion is manifest that in 2010 Rodriguez committed three distinct violations of the JDA by use and/or possession of testosterone, IGF-1, and hGH...that Rodriguez continued to violate the JDA in 2011 by use and possession of testosterone, IGF-1 and hGH is established... [and] that Rodriguez continued to violate the JDA in 2012 by use and possession of testosterone, IGF-1 and hGH is also established... In cases such as this, involving the continuous and prolonged use or possession of multiple substances (as opposed, e.g., to a single positive test)... the Commissioner is not limited to the disciplinary schedule set forth in Section 7.A., but rather can fashion an appropriate penalty... supported by principles of just cause... (Horowitz opinion, pp. 21-22, 28)
Unrebutted or not, the evidence doesn't support the verdict.  Horowitz has stretched a single infraction into "three distinct violations" by contravening the JDA's letter, by distorting its spirit, and by ignoring the precedent set by past citations under its protocols.  For even if we concede, for a moment that Rodriguez did use and/or possess all the illicit drugs attributed to him and that he consumed them moreover with the frequency charged; even then, according to the JDA's expressed language, his entire drug history tallies one integrated violation-- not three (or more) discrete offenses.  Any result to the contrary would conflict with the JDA's expressed language.  No less than three separate provisions of the JDA, in fact, expressly prohibit the Commissioner from (i) citing Rodriguez for each instance he used drugs prior to receiving his Notice of Violation (his first) on August 5, 2013 and from (ii) augmenting his suspension for each one of the illicit substances his illicit cocktail comprised.  To quote each provision, in pertinent part,
"A Player will not be disciplined for a second or subsequent violation involving a Prohibited Substance that occurred prior to the time that the Player received actual notice of his first positive test result or non-analytical positive for the same Prohibited Substance, provided that the Player's discipline for his first violation was not overturned or rescinded." JDA, Section 7.L ("Notice of Violation")
"Players shall not be subjected to multiple discipline as a result of the same use of a Prohibited Substance" JDA, Section 3.H., "Multiple Discipline for the Same Use"
"If a single specimen is positive [] for more than one category of Prohibited Substances (Performance Enhancing Substance, Stimulant and/or a Drug of Abuse), the Player shall serve the longer applicable suspension only" JDA, Section 7.K. ("Multiple Substances")
Horowitz's opinion disregards Sections 7.K. and 3.H. entirely and adverts to Section 7.L. only to exclude Rodriguez from its scope through the most tortured of interpretations and most dishonest of rationales.  
"While the provisions of Section 7.L. protect a player from discipline for a second or subsequent non-analytical positive that occurred prior to the time that the player received actual notice of his first non-analytical positive for the same Prohibited Substance, the provision does not protect players from being separately disciplined for each use of or possession of a different Prohibited Substance prior to being provided notice of the first violation." (Horowitz opinion, p. 29)     
But by confining Section 7.L.'s application to users of a single PED, Horowitz vitiates Section 7.K. and the stricture against "cumulative punishment" for multiple drugs that the provision enshrines.  This is to say, that when a player's illicit repertoire blends multiple drugs, punishment for the more taboo drug subsumes the sanction for the more trivial one; the sanctions don't compound each other.   Hence, a drug test which discloses three types of illicit substances entitles the Commissioner to assess penalties for one violation, not for three.  But instead of reading Sections 7.L (offenses prior to notice) and 7.A. (penalties) to comport with Section 7.K.'s clear intent to disavow "cumulative punishment", Horowitz ignores the latter and imputes to the two former provisions the kind of pedantic distinction even Mr. Pecksniff himself might scorn.  (See 7.L. supra; 7.A., infra.)    Horowitz writes,
"[T]he express language of Section 7.A specifies a 50-game suspension for first offenders for the use of 'a Performance Enhancing Substance'...[not] use or possession of multiple Prohibited Substances... Rodriguez was found to have used three distinct PES... Thus, if the penalty structure in Section 7.A. is used as a guide as to appropriate discipline.. Rodriguez's conduct would merit no less than a 150-game suspension."  (Horowitz opinion, pp.28, 30) 
By underscoring the indefinite article, Horowitz interprets 'a' to mean 'one' and only 'one'.  But this would endow the indefinite article with the type of elaborate purpose that belies a more obvious reading.  Section 7.A. uses the singular rather than the plural in its operative clause simply to convey the verity that a player has to use or possess at least one banned substance to trigger a suspension.  The word 'a,' in other words, acts to qualify, not to quantify.  Horowitz has confused a necessary condition-- meaning at least one drug-- with an exclusive parameter-- meaning only one drug.   After all, didn't Manny Ramirez receive a 50-game suspension in 2009 despite testing positive for both hCG and artificial testosterone?  Today's athletes indeed tend to favor the kinds of drug cocktails where multiple synergistic compounds work together to maximize performance.  The more persuasive interpretation of Section 7.K then would extend its express bar against cumulative punishment for using multiple prohibited substances across drug classes -- e.g. amphetamines, marijuana, and steroids--  to compass, in addition, an implicit bar against cumulative punishment for users of multiple prohibited substances within a single drug class-- e.g., testosterone, hGH, IGF.    

But apart from resorting again and again to a transparently dishonest interpretations of specific JDA provisions, the premise underlying the 162-game suspension the arbitrator announced also flouts the JDA's general purpose. If Rodriguez was indeed an "intentional, continuous, and prolonged" user of performance-enhancing drugs, as Horowitz repeatedly describes him, then the Yankees third-baseman isn't uniquely culpable.  He is emblematic.   The drafter designed the JDA to target "intentional, continuous, prolonged" use-- not the unwitting, casual, or sporadic variety.   Otherwise, the JDA wouldn't confine administration of its drug test to approximately four random days throughout a six-month season.  No, they'd have implemented a daily test.  Not for nothing did its drafters title it a "Joint Drug Treatment and Prevention Program".  They intended it to address addiction and to preempt the "intentional, continuous and prolonged" addiction implies.  

Indeed, consider the absurd implications Horowitz's conclusion carry.  If we attribute "intentional, continuous, and prolonged" use to Rodriguez because Bosch testified to it and not to any of the 30-odd players cited for a positive drug test, then either we have to conclude that the latter only used illicit drugs the days their tests returned positive results (and not for weeks, months, or years beforehand).  Or alternatively, we have to conclude that the gravity of a JDA offense varies with the manner of its detection.  Prolonged use that triggers a positive drug test begets a 50-game sentence.  Recurring use detected through eyewitness testimony or physical evidence, on the other hand, earns a season-long suspension.  But even according to this perverse logic, Rodriguez's 162-game suspension still defies explanation and precedent.   Only one other time has MLB disciplined a player in the absence of a positive drug test.  After federal drug enforcement agents raided Jason Grimsley's home and seized PEDs, he admitted to using "anabolic steroids, amphetamines and HGH," but he only received a 50-game suspension.  
"Please your Majesty,' said the Knave, 'I didn't write it, and they can't prove I did: there's no name signed at the end.' 
'If you didn't sign it,' said the King, 'that only makes the matter worse. You MUST have meant some mischief, or else you'd have signed your name like an honest man.'
There was a general clapping of hands…
'That PROVES his guilt,' said the Queen....  'Sentence first—verdict afterwards.'
'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'
'Hold your tongue!' said the Queen, turning purple.
'I won't!' said Alice.
‘Off with her head!' the Queen shouted at the top of her voice. Nobody moved.
'Who cares for you?' said Alice, 'You're nothing but a pack of cards!

The patently disingenuous reasoning and interpretative acrobatics that pervade Horowitz's opinion will recall for many the methodology of Bush v. Gore --  a Looking Glass universe where all the familiar landmarks that ordinarily guide judicial opinions -- uniform rules, transparent logic, controlling precedent, basic fairness and justice-- are inverted or vanish altogether.  Outcomes supply rationale.  Remedies fashion wrongs.  And legal reasoning knits a fine-spun intellectual mantle designed to camouflage vested interests and personal predilections.

The question though is why?  What was so reprehensible about Alex Rodriguez's infractions that they would lead a respected arbitrator to twist the JDA into Byzantine knots in order to uphold a ban that exceeds by 40-games the most protracted suspension any Major League Baseball player, to date, ever had exacted.  Before Steve Howe received his 119-game suspension in 1992-- the longest on record prior to Rodriguez's-- MLB had suspended him on six previous occasions for cocaine use.  Prior to 2013, the Yankees' third-baseman, by contrast, hadn't sat out a single day for drug violations.  In fact, even if we credit Bosch's testimony, Rodriguez's habits still pale by comparison to the incorrigible addiction that bedeviled Howe.  Neither does the suspension's length square with the penalties MLB has levied, more recently, against steroid users and against two of its more deceitful culprits in particular.  Now, the Yankees' third-baseman hardly meets anyone's idea of exemplary candor. Yet for scurrility or deviousness, his evasions fall considerably short of either Ryan Braun's or Melky Cabrera's.  Braun, you will recall, blamed his positive drug test in 2012 on the putative antisemitism of the custodian responsible for collecting his urine specimen.  Cabrera, on the other hand, attributed his violation to a dietary supplement he purchased from a company whose website, it turns out, he fabricated.  Neither sham cost its perpetrator more than 65-games however.
So if Rodriguez doesn't qualify as either a uniquely incorrigible offender or singularly duplicitous one, what sin did he commit that provoked such zeal to punish him.  In short, Rodriguez had the temerity to fight back.  He didn't merely exercise the right to appeal the grievance process affords every player.  Far worse in baseball's estimation, he adopted legal tactics every bit as ruthless and as opportunistic as his adversary.  He dared to treat the Commissioner as just another corporate executive deserving of no more deference, respect, or assent than any other self-aggrandizing, profit-driven private litigant.  And by doing so, he not only punctured the Commissioner's pretense to be some kind of Platonic sovereign safeguarding the integrity of a sacred American institution.  He also dramatized the grievous abuses that ensue when billion dollar corporations act as private law enforcement bodies, abuse the judicial process to punish their employees, and range afield of the workplace to expose moral turpitude and to vitiate employment contracts.  Rodriguez and his legal team  showed for all the world to see that the Commissioner wears no robes.   And for this effrontery, Horowitz slapped him for obstruction.    
"Deliberate efforts to obstruct an MLB investigation...may subject a Player to additional disciplinary sanctions under Article XII(B) of the Basic Agreement.  In this case, the evidence considered in its entirety supports a minimum of two such violations.  [First], Rodriguez, having himself publicly denied being treated or advised by Bosch-- a denial which he knew to be false-- played an active role in inducing Bosch to issue his own public denial on January 29, 2013, which Rodriguez also knew to be false.  [Second], Rodriguez also attempted to induce Bosch to sign a sworn statement on May 31, 2013, attesting that Bosch never supplied Rodriguez with PES and had no personal knowledge that Rodriguez had ever used them, statements that Rodriguez also knew to be false.  (Horowitz opinion, p. 26)  
"MLB [by contrast] had a legitimate interest in obtaining accurate information about Bosch's involvement with MLB players... [Thus], it was not inappropriate for MLB to reimburse Bosch for the attorneys fees he incurred as a result of his cooperation with MLB... The reimbursement for security expenses [also] addressed Bosch's legitimate concerns for his personal safety... Also unfounded are the charges of improper conduct by MLB investigators.. It is recognized that MLB paid Gary Jones $125,000 in cash for copies of documents.   But counsel for Rodriguez has acknowledged similar payments and offers..." (Horowitz opinion, pp.32-33)      
According to Horowitz, Rodriguez obstructed a MLB investigation because (1) he lied publicly about using PEDs; (2) induced Bosch to lie publicly on his behalf; and (3) attempted to induce Bosch to swear a false affidavit.   But where is it written that the CBA obligates a MLB player to tell the American public the whole truth and nothing but the truth?  Cabrera and Braun certainly didn't.  As of May 31, furthermore, no court had subpoenaed him.  Nor had MLB interviewed him as yet.  Finally, didn't Bosch have his own motives for his disavowals?  Or does Horowitz think Bosch would have held a press conference and confessed had Rodriguez not interceded?  And hasn't Horowitz also unwittingly countenanced the Star Chamber's logic by equating denial with obstruction and penalizing Rodriguez for his refusal to confess?  No, the Fifth Amendment doesn't apply to labor arbitrations but its basic canon transcends the criminal context.  To paraphrase Justice Frankfurter, "We are an accusatory, not an inquisitorial system of justice."

More troubling however is the flagrant double-standard that anchors Horowitz's conclusion.  MLB can reward Bosch for his cooperation and testimony.  The Commissioner's Office (the "CO") can indemnify a drug dealer for his legal fees.  The CO can underwrite his personal security.  The CO can lobby law enforcement officials on his behalf.  In fact, it even can enable the man to profit from his infamy through book and movie deals.   MLB can do all of this with total impunity-- neither compromising its case nor incurring a sanction for misconduct.   Yet when Rodriguez resorts to almost identical tactics.  When he enlists an exculpatory affidavit from Bosch and/or offers to defray Bosch's legal expenses, he engages in obstruction.

Consciously or not, this type of double standard draws upon the one legal context in which disparate rules for collecting evidence and for procuring witnesses actually do divide the parties-- in criminal prosecutions.  District Attorneys can reward witnesses, excuse accomplices, seize evidence, negotiate proffers while the defense, by doing so, would incur an obstruction charge, but this is because the DA doesn't represent a particular person or entity's interest.  The DA represents the State and by extension, the commonweal's idea of justice.   Does the Commissioner's Office then fancy itself a surrogate of the State, equipped with its moral stature, if not necessarily its legal authority?  Does Horowtiz realize that his double-standard implicitly credits MLB with such rank?    

Baseball has claimed for itself this type of national prestige almost since its inception.  Although the group of men who have owned Big League franchises have conducted their business with no less avarice or opportunism than any other major American industry, public opinion and common law largely have spared them the scrutiny and opprobrium that their more mercenary business practices otherwise might have brought.   Everyone, of course, remembers the cloying piety to which the courts descended in their futile attempt to save the reserve clause. "Baseball," wrote Judge Cooper in the Curt Flood case, "has been the national pastime for over one hundred years and enjoys a unique place in our American heritage.. Baseball is everybody's business.. The game is on higher ground; it behooves every one to keep it there."  Could anyone imagine a federal judge delivering himself of such homilies on behalf of Hollywood's "star system"?  And does the film industry own any less prominent place in the nation's heritage or exert any less influence in purveying America's highest aspirations and democratic ideals?   The studio system certainly never enjoyed exemption from the anti-trust laws; nor should it.      

This isn't to say that influential voices inside and outside the institution haven't discerned or even acknowledged the naked profit motive that baseball's mythology as the "national pastime," too often, cloaks.   No less entrenched an insider as former Commissioner A.Bartlett Giamatti once wrote, "In a fashion typically American, baseball [has] carried a lore at variance with its behavior; it promoted its self-image as a green game while it became a business.  That gap... is with us to this day."  Of course,  Giamatti acceded to the Commissioner's chair from the halls of academe.  And whether this outsider's perspective would have chastened his pursuit of Rodriguez or revealed to him the perverse irony of trying to uproot so-called "steroid cheats" through investigative tactics no less unscrupulous in their methods or Machiavellian in their motives-- whether Giamatti would have insisted that to mean anything an institution calling itself the nation's pastime has to honor the principle of due process, we only can speculate.

One thing is certain however.  The glad-handing Commissioner who rose from the Midwestern car lot to the owners' ranks and leaped from there to the Commissioner's Office and who has now occupied the office for the last twenty-some-odd years cherishes no principle short of the bottom line.   The "national pastime" doesn't signify much more to him than an advertising slogan and the Commissioner's Office doesn't represent any more exalted a position than the executive seat of Baseball Incorporated.   Were it otherwise, preserving the game's "competitive integrity" wouldn't simply mean suspending players like Rodriguez who ingest drugs to enhance their performance; it would also mean expelling owners like the Marlins' Jeffrey Loria who contrive to strip their rosters of talent and who purposefully condemn their teams to lose because victory is subordinate to profit.

Ask yourself this question.   What inflicts greater damage on MLB's competitive integrity?   When an arduous night of travel and acute sleep deprivation induces a player to consume a troche containing testosterone so he can rebound and performs at the highest level or when multiple owners field teams of Triple-A talent so they can pocket the revenue sharing subsidy the Commissioner's Office has allotted them specifically to improve their roster.

In America, the "malefactors of great wealth" wear many faces.  Sometimes he dons the jacket and tie of the local car salesman.  Half Avuncular, half smarmy, he slaps yours back and pumps your hand and tickles your ego even as slowly and imperceptibly he removes the last hard-earned sawbuck buried deep within your wallet.   Other times, he personifies the fat cat monopolist who spend his time chomping Cuban cigars, stroking his indolent, complacent paunch, and counting his money.   He owns the cable that wires your house or the operating system that drives your computer or the only sports franchise within a 300-mile radius of where you live.   Him, you don't just hand your money; you beg him to take it because there's no other game in town and without him, life is too boring or inconvenient to endure otherwise.  "Ain't America a great country?" he chortles all the way to bank, flattering himself for his gumption and shrewdness and snickering at all rest of us dummies.   And then there's the ruthless mustachioed petty tyrant whose brooding omnipresence haunts the office's every nook and cranny.   He prostrates his rivals through incessant litigation and predatory price wars, and no less than the competition, he intimidates his own employees.  He feeds on fear and ubiquity.   He tests your urine.   He clocks your lunch breaks.  He monitors your computer because the only thing he can't stand more than malingering is criticism.   Your every thought is to please him and if not, it better be.

So what is the national pastime? An Arcadian idyll of enclosed green spaces?  An exemplary melting pot which promotes assimilation and instils civic virtue?  A democratic arena where individual performance and objective statistics guarantee merit triumphant.   Or is Major League Baseball really no different from the old Hollywood studios or a modern-day entertainment conglomerate?   Drug tests and turpitude clauses.  Payrolls stocked with private investigators and co-opted journalists.  Docile and acquiescent unions.   Internal disciplinary hearings  impervious to legal norms and devoid of due process.   And looming over it all beams the protean face of a Commissioner whose tenure in the office has outstripped his last three predecessors combined.  He smiles like the used car dealer.  He preens like the fat cat.  And if you dare to defy him, he will efface your existence just as surely as the most draconian autocrat.

In Cooperstown, raise the banner high.  Only home run gods with pure blood and clean urine may enter.   All the rest beware because  BIG BUD IS WATCHING YOU.                    

Thursday, August 8, 2013


"The Anglo-Saxon race is peculiarly subject... to spasms of paroxysmal righteousness... [which result] in trial by passion, by terror, by prejudice, by hate [and above all] by newspaper"-- William Dean Howells 

"All men are Jews"--- Bernard Malamud

211 games, really?  Major League Baseball has sentenced Alex Rodriguez to a suspension that would prevent him from playing until the season he turns forty and that effectively would end his baseball career and MLB claims it has meted out a sentence that is fair, reasonable, and in accordance with the MLB's Collective Bargaining Agreement and the Joint Drug Prevention and Treatment Program (the "JDPP").   

Has the Commissioner's Office lost complete sight of the principle of equal treatment under the law or the axiom that the punishment should fit the crime?  Did Alan "Bud Selig" completely forget the judiciously calibrated disciplinary regime the JDPP enacted-- 50-games for a first-time violation; 100-games for a second infraction; a life-time suspension for a third offense.   What grievous crime could Rodriguez possibly have committed to warrant such a draconian punishment?  More importantly, on what basis, does the Commissioner's 211-game sanction rest other than punitive whimsy?  Its vaporous authority and arbitrary length indeed reeks of ulterior motive-- the wish-fulfillment of a Commissioner eager to heap all the blame for a drug epidemic on the shoulders of one player and to extenuate his own connivance in over twenty years of hypertrophied statistics that profited him and his former cronies in front-offices throughout the sport.  

Ever since that day in 2000 when Scott Boras inveigled Tom Hicks to sign the slugger for $252 million dollars and to distort forever the marketplace for free agent contracts, Alex Rodriguez has become baseball's eternal bete noire.   For in the Yankees' vain third-baseman--  a wayward fool desperate to please perhaps but hardly an cunning villain-- Alan "Bud" Selig, the Mass Man Par Excellence, nonetheless has found the ideal scapegoat to tar for guilt we all bear-- the game and its fans alike.  Guilt our culture bears collectively, in fact, for willful blindness to its own opportunistic core, for valuing performance over honor, for elevating profits over integrity, for worshiping athletes as gods instead of recognizing them as gifted but eminently mortal men and finally, for our relentless hunger for that extra edge, whether legal, moral, or even prudent.

Perhaps, Pontius Selig is hubristic enough to believe that by crucifying A-Rod-- by subjecting his career to a slow and asphyxiating death-- America's pastime not only can purge itself of its drug-addled past but it can redeem a nation awash in drugs designed to boost productivity, to arrest the aging process, and to improve performance.  Viagra, HGH, and Adderral to Botox, Creatine, and Jacked.   And a man named A-Rod shall arrive among us and shoulder our griefs and carry our sorrows and suffer for our transgressions.  

Don't forget that once upon a time, not long ago, right around the year A-rod made his Major League debut in fact, back when labor strikes and owner greed has prostrated the sport and fans shunned it, performance-enhancing drugs restored America's pastime to life.   Dramatic home run chases, bloated offensive statistics, and the rejuvenation of beloved but aging superstars attracted millions to the ballparks, set new attendance records, garnered lucrative new broadcast contracts, and spurred new revenue sources in advanced media. And overseeing it all sat Milwaukee Bud, the Midwest's favorite Ford dealer, flattering himself for resurrecting the sport and preening for the cameras.  Evidently, what he didn't bargained for was the backlash that would ensue when Jose Canseco constrained the people to see what we suspected all along but dared not to admit.  The Baseball Gods we all revered were simply fallible men no less prone to the quick fix than the rest of society.  For chemical wizardry, new, more potent designer drugs had eclipsed the amphetamines baseball players had feasted on for decades and made them bigger, stronger, faster.   But no one wants to hear that their God is just a little man behind the curtain equipped with the latest ingenuity modern science can supply.  The people clamored for blood.   Remember Caesar, you have a duty to please the people.  Crucify Him.  Congress intervened.  The owners and player's union finally found religion, agreed to the JDPP in 2006 and incorporated it into the League's collective bargaining agreement.

But now Pontius Bud threatens to vitiate the JDPP despite its proven record in identifying drug users, punishing offenders, and stemming the tide of PED use, if not entirely eliminating it.  His office offered all the other players implicated in the Biogenesis scandal a 50-game suspension, with the exception of Ryan Braun who already had tested positive once before for banned substance.  Selig even commuted the sentences of Melky Cabrera and Bartolo Colon to time-served.  Why does Alex Rodriguez deserve a sanction four times as severe?  Because he lied about it?  Well, Melky Cabrera fabricated an entire internet to conceal his drug use.  Because A-Rod didn't roll over when Major League Baseball decided to appoint a director of the Secret Service to spearhead its Starr chamber?  Or rather, he exercised his right to defend himself, like Braun did last year and he only received a 65-game sentence.   No, A-Rod's punishment smacks of some tyrant's edict contrived out of thin air because Pontius Bud has an illusion to protect-- the illusion that home run records compiled across centuries of rules changes, modifications to mound height, variation in the ball's composition, contracted stadium dimensions, racial exclusions, and human evolution still enshrine some kind of timeless, sacrosanct totem of merit.   And for this illusion, A-Rod must pay.  The Commissioner has to foreclose A-Rod's pursuit of Mays', Ruth's, Aaron's, and Bond's home run milestones, so we all can forget the little man behind the curtain.   Admit Alex that you are not the King of Baseball, says Pontius Bud.  Or else suffer the penalty of death

Let's hope Frederic Horowitz can restore sanity and justice as MLB's appointed arbitrator for players' grievances has done so often in the past.   Below are four precedents in which an arbitrator has curbed draconian sentences handed down by the Commissioner's office.   Anyone of which would warrant granting A-Rod clemency as well.

1) In 1984, KC Royals' Willie Wilson was convicted for attempt to purchase cocaine.   Kuhn suspended him for one (1) year.  The Arbitrator reduced his suspension to one (1) month. 
2) In 1984, Commissioner Kuhn suspended Pascual Perez for cocaine possession from Opening Day through May 15th.  Arbitrator Richard A. Bloch commuted Perez' suspension to April 29th 
2) In 1986, SD Padre LaMarr Hoyt committed three separate drug charges.  The Padres terminated his contract. Commissioner Ueberroth suspended him for one year.  The Arbitrator reinstated his contract and abridged the suspension to 60 days.
3) In 1991, Vincent banned NYY Steve Howe for life.  Arbitrator George Nicolau reinstated Howe after he'd served about 120 days of the sentence.
4) In 1995, Milwaukee's Bud ousted then SF Giant Daryl Strawberry for 60 days beginning April 25, 1995 (Opening Day in the strike-truncated season).  The SF Giants released him before Strawberry's salary arbitration hearing and maintained accordingly that they owed him nothing.   Arbitrator George Nicolau ordered the SF Giants to pay him $125,000.  The Yankees signed Strawberry on June 19, 1995.

Friday, August 17, 2012


"[T]hrough baseball I was put in touch with a more humane and tender brand of patriotism, lyrical rather martial or righteous in spirit and without the reek of saintly zeal, a patriotism that could not so easily be sloganized, or contained in a high-sounding formula to which you had to pledge something vague but all-encompassing called your allegiance." -- Philip Roth, "My Baseball Years" (1973)   

We call it “the national pastime”. And for over a century, luminaries ranging in vocation from academia and journalism to politics, literature, and business have all exalted the game as an American archetype and have identified it among the sacred rituals and icons that form our nation's identity. During his tenure as Major League Baseball's Commissioner, Renaissance scholar A. Bartlett Giamatti's pronounced baseball “an important, enduring American institution…[with] a purchase on our national soul”. A sentiment historian Jacques Barzun's conception of the game echoes. Baseball, he wrote, reveals "the heart and mind of America." While a century before them, our bard himself, Walt Whitman, declared the sport as much a part of "our institutions... as our Constitution's laws" and as no less integral to our history. 

Their grandiloquence only serves to beg to a fundamental question however.  What precise national trait, value, or practice, does the Diamond consecrate or signify?  The traditional totems of American identity conjure a signal and immediately identifiable American idea, attribute, or inheritance: Stars and Stripes, the nation's colonial ancestry and federal union; the bald eagle, our ferocious and prideful independence; Lady Liberty, our revolutionary tradition and immigrant heritage; and our founding documents, the nation's experimental origins and democratic creed. 

Baseball, on the other hand... Sure, its a rigorous craft, a selective profession, a stern discipline, a frequently edifying and theatrical drama and a consistently prodigious display of talent and skill.   But this doesn't change the inglorious facts.  Professional baseball remains, at its best, a diverting entertainment played for hire, and at its worst, a ruthless business that trades men like commodities and discards them like waste.  Rhapsodies notwithstanding, it is ultimately just a game.

How then can it possibly exert a claim on, all of things, the nation's "soul"? What truth about its native land can it possibly embody? 

For all its many flaws, last year's Oscar-nominated baseball film, Moneyball suggests a tentative answer.  An inkling of which appears in the film's widespread popularity and unique genre pedigree.

Now, ordinarily, baseball movies like Field of Dreams, Damn Yankees, For The Love of the Game, and The Rookie descend from the same family tree from which the generic sports motion picture hails-- whether set amid the ring, the racetrack, the Diamond, or the gridiron.

From Rudy to Rocky, they tell the story of endearing, mettlesome underdogs as they triumph over hardscrabble origins, debilitating injury, insular bias, and hopeless odds.  And along the way, we get a little romance, a suspenseful big game finale, and above all, a triumphant, uplifting ending. However, in Moneyball, Director Bennett Miller and screenwriter Aaron Sorkin (and Steven Zallian) actually have engineered something of a genetic hybrid-- cross-breeding Hollywood's inspiring tale of athletic triumph with another common Tinsel Town species, the social problem film. The Natural mates Mr. Smith Goes to Washington.

As Peter Roffmann describes Hollywood's formula for the social problem film in his eponymous book, "social analysis and dramatic conflict [combine] within a coherent narrative structure... [T]he central dramatic conflict revolves around the interaction of the individual with social institutions," and the motifs of America's populist tradition figure prominently in the story. In fact, the formula hasn't changed much since Capra's day either. Noble, virtuous men do battle with greedy plutocrats, a hostile establishment, or venal institutions.   They suffer dire setbacks.   They endure tragic sacrifice.  But in the final reel, truth, justice, and the American way prevail and crown a hero's victory.

Moneyball not only radiates this populist sensibility, its bears Aaron Sorkin's signature melodramatic stamp besides. The film dramatizes its subject-- the influence of money on teams' fortunes-- with all the intellectual complexity and poetic nuance of a Will McAvoy rant in Newsroom.  As early as the opening montage, in fact, it projects Major League Baseball through the black-and-white lens of populism. The New York Yankees, naturally, epitomize corporate Wall Street gluttony and decadence; while the Oakland Athletic personify rugged California pluck and ingenuity.

The deciding game of the two teams' 2001 American League Divisional Series sets the scene. But just before the Bombers complete a stunning, improbable comeback from an 0-2 game deficit and rally to win Game 5; just before the raucous Yankee Stadium crowd shakes Ruth's House to its foundation and New York stands in unison to applaud its shining light of bravura and resilience just one month after the Twin Towers have fallen; Sorkin qualifies the achievement.  A full frame of portentous text interrupts the game footage. "New York Yankees $114,457,768 vs. $39,722,689 Oakland Athletics," it reads. 

The implication: the best team didn't win; the richest one did. America's game is rigged.1

Of course, outside Aaron Sorkin's Manichean imagination, the truths of the world are neither so monolithic nor so facile.  Sure, the Oakland Athletics' payroll consistently ranks among the lowest in the league (29th of 30 in 2012).   The Yankees, meanwhile, have owned the top payroll in baseball every year since 1999.  Yet payroll figures, in the absence of revenue totals, mean very little.  How much a team spends, after all, doesn't tell us how much revenue it generates or how much in earnings its ownership pockets.  Indeed, a closer look at the A's balance sheet evokes less Capra's Senator Jefferson Smith than one of Wall Street's TARP recipients. 

The $300 million dollar value of the Athletics alone ill equips it for the part of humble populist hero.  Actually, the Athletics current ownership group has nearly doubled its investment since they bought the team, according to Forbes' annual "Business of Baseball" issue.  From the $172 million dollar they purchased the A's for in 2005, their asset has risen in value to $321 million dollars in 2012.

Sure, the Bay Area media market the A's inhabit is about 40% of New York's size.  It's smaller still for the A's because they have to share it with the San Francisco Giants, their more popular neighbor.  (What's worse, the Giants have opposed the A's plan to move to San Jose.) This inexorably constricts Oakland's available revenue sources and limits their spending capacity accordingly.

However, Moneyball-- and the movie and book both suffer this flaw-- conveniently overlook the approximately $50 million the A's collect annually from MLB's revenue sharing program which compensates them precisely for their geographic limitations.  The subsidy the A's collect from Major League Baseball's revenue sharing program emanates from two separate sources:  (1) a "local revenue" tax assessed on all teams' broadcast dollars and gate proceeds and then redistributed from the large media market "Haves" to the small media market "Have-Nots" and (2) a "central fund" allowance realized from national broadcast contracts, merchandise sales, the MLB cable network, and MLB Internet properties but split evenly among all 30 franchises.

True, the League hasn't published exact figures in seven years.  I nonetheless extrapolated the $50 million dollar allotment, a modest estimate, from the following.  In 2005, records show the A's received  $19 million dollars from "local revenue" transfers-- this sum, no doubt, has risen-- and Baseball America estimates that the "central revenue fund" yielded every team about $30 million as recently as 2009.  This sum probably has grown since then as well.   

So, what exactly have the A's done with the $50 million-dollar-a-year allowance Uncle Bud gives them each year to spend on players?  They certainly haven't spent it on major league free agents; that's for sure.  Since the A's new owners arrived, their payroll actually has fallen.  It totaled $62 million on Opening Day in 2006 and $55 million on April 6, 2012.  And perhaps, for this reason, Forbes' calculates that in 2011, the A's owners netted a $15 million dollar operating profit-- $5 million more than the supposedly rapacious Yankees. 

Not exactly a business model worthy of Capra's exemplar of agrarian virtue, is it?  Actually, with the $15 million dollar operating income the A's showed in 2012 and the $23 million dollars they realized in 2011, Oakland looks more and more like Ronald Reagan's phantom "Welfare Queen" than they do the caricature of small-town thrift and maverick ingenuity Moneyball celebrates.

The greater fallacy of Moneyball however lies in the film's simplistic equation of payroll with performance.

Sure, the Yankees spend 3.5 times as much on their major league roster as do the A's on theirs ($197,962,289 vs. $55,372,500 in 2012.)  However, the surplus expenditure does not purchase them either a proportionate advantage in roster talent or yield them an equivalent boost in on-field performance. That this benefits the Yankees, only their most dogmatic fans would dispute.  Among the advantages, the Bomber's $200 million dollar payroll enables them to retain star veterans, to acquire premiere free agents, and to squander resources on boondoggles like Kei Igawa and Carl Pavano without it hamstringing their roster.

However, the Yankees' extravagance avails them far less than most people assume and less still than the linear correlation implied by Moneyball's premise.   According to Ranjit Dighe, an economist at Oswego University, the Yankees actually receive no marginal benefit, at all, from each dollar expended above $150 million. See also. More germane still, in the book Wages of Wins, Stanford economists, David Berri, Martin Schmidt, and Stacey Brook conclude, using a complex regression analysis, that over the eighteen Major League seasons between 1988 and 2005, payroll discrepancy accounted for only 18% of clubs' win variation.  A significant correlation but hardly a determinative one.  The .18 coefficient also doesn't indicate whether spending reaps wins or whether winning spurs teams to spend more or whether some third variable like, number of under-30 free agents signed, subsumes both.  

Witness, as illustration, the variability among the sport's World Series champions over the last decade.  Since 2000, eight (8) different teams have won baseball's title.   Since 1982, the trophy has gone to eighteen (18) of them.  Consider, too, the payroll ranking of the last eight World Series victors. Diamondbacks (8th); the Angels (5th); the Marlins (26th); Red Sox (2nd); White Sox (13th); Cardinals (11th); Phillies (13th); Giants (10th)2 

Now, compare, by contrast, this to the NBA and NFL, two leagues where salary caps control salaries and impose a relative spending parity among teams.  Over the last thirty (30) years, only nine (9) different franchises have claimed the NBA title, only fourteen (14) in the NFL.   

Among the many reasons why payroll doesn’t impact baseball clubs’ success more directly, a primary one lies in the systemic inefficiency MLB’s collective bargaining rules embed in the sport's salary structure. Or in brief, the period when players perform at their most proficient doesn’t correspond to the time when they earn the most money.  

 In a Baseball Prospectus issue published in 2005, Nate Silver calculated that the average ballplayer’s peak performance spans his twenty-fourth and thirtieth birthdays, cresting for the hitter at age twenty-eight. However, this very same player doesn't reach free agency until 30, on average, the very end of this optimal performance curve. The anomaly originates in the relative advanced age of Major League rookies. In the NFL and NBA, the typical player starts his career at age 21 or 22, following college graduation.  In baseball, however, he first has to serve his time in the minor leagues, and as a consequence, he doesn't reach the Majors, on average, until his 24th birthday, according to AlanSchwarz, author of The Numbers Game.  And once on a Big League roster, he still has to play six more seasons before he can declare free agency and earn a salary worthy of his production.  But by then, his most prolific years already have elapsed. 

Take, for example, Jason Giambi.  In Moneyball, you may recall, Giambi's impending free agency-- along with Johnny Damon's and Jason Isringhausen's-- arouses considerable consternation in Oakland's front-office at the end of the 2001 season.  Billy Beane knows the A's can't afford to pay the players' asking price, and he despairs of replacing Giambi, in particular, with comparable talent.  Instead of griping, though, the A's should consider themselves fortunate.  Because the collective bargaining rules enabled them to renew Giambi's salary in his first three full seasons in the Majors at league minimum and in his next three, to minimize its escalation through the arbitration process, the A's battened on Giambi's most prolific years and paid him next to nothing for the privilege.      Between 1996-2001, Giambi earned, on average, only $1.6 million dollars annually-- a mere fraction of what the 150 wOPS he averaged would have commanded on the open market.

The converse is true for the Yankees, the team, not coincidentally, that signed him to a $120 million dollar contract just shy of his thirty-first birthday.   Between 2002 and 2007 (the next six years of Giambi's career), his average annual salary escalated nine-fold to $15.23 million dollars while his mean wOPS fell to 138.

The inefficiency is emblematic.  And it likely explains why the Yankees have failed to recapture the supremacy their core of young, cheap, prolific and homegrown players conferred for a brief interval in the late 1990s (Jeter, Williams, Rivera, Pettitte, Posada).  The talent available each year on the open market is too sparse, the salaries, too high, the contracts, too burdensome to enable even a team willing to spend $200 million dollars on Major League salaries to assemble a championship caliber team through free agency alone.  Indeed, the Orioles' failure during this period to keep pace with the Yankees through expensive, high profile free-agent acquisitions and the decrepit, calcified roster they accumulated in the process offers both a vivid illustration and cautionary example.     

That the Yankees should assume the form of populist bogeyman in any liberal's imagination smacks of irony to begin with.  In Moneyball's casino metaphor, Billy Beane fancies himself the card-counter; the Bombers, the House.   But baseball's Bronx franchise owes more to the Federal Reserve than to Caesar's Palace.  Far from a corporate barony that dominates its industry through lavish spending, talent piracy, and sheer financial might, the Yankees function as the League's fiscal ballast and financial guarantor.

First of all, the Steinbrenner family numbers among the few owners of professional sports franchises who, to their credit, recognize that a sports franchise is as much a public trust and civic institution as it is an individual proprietorship or private corporation.  With this in mind, their business model doesn't aim primarily to augment its shareholders' value or to maximize the company's profits.   No, the Yankees' upper management strives, above all, to win games, to honor the city that inscribes its name, and to hearten the fans invested in its fate.   Too often, baseball's owners regard their title to a sports franchise as a vanity stake or as a license to line their pockets.  Whose spending habits, in the end,  more readily summons the predatory monopolist: George Steinbrenner or Frank McCourt?  Whose behavior more closely approximates the robber barons of yore: the Steinbreners' profligacy or Jeffrey Loria's profiteering.    

Secondly, the Yankees' ample revenue and the proportionate sizable surcharge on it the League's revenue-sharing program assesses actually fortifies the sport's economic structure and competitive parity much in the way the U.S. government's tax receipts underwrite a stable and productive economy: (1) through block and formula grants, which transfer wealth from flourishing states and cities to economically depressed regions; (2) through counter-cyclical deficit spending which reinforce the economic system, as a whole, when individual industries falter and local revenues fall; and (3) through earmarks and appropriations for social services and collective goods the market ordinarily neglects.

Since 2005, the Yankees have paid over a $100 million dollars each year in revenue sharing levies and luxury tax surcharges that MLB has transferred to the League's Have-Nots. $75 million consists of the balance between their local revenue tariff and their central fund receipts.  Another $20 to $25 million dollars comes from the 40% competitive balance penalty (commonly called "the luxury tax") they part with on every payroll dollar expended over a fixed threshold-- $178 million in 2011.  (Again, the League doesn't disclose the exact amount so I provide a conservative estimate based on the full accounting MLB published in 2001 and the balance sheets and revenue-sharing figures leaked to Deadspin last year.) 

As discussed above, the proceeds go to franchises like Pittsburgh, Tampa, Miami, Kansas City, Arizona, Milwaukee, and Oakland where an indifferent fan base or shrinking urban population inadequately supports them.  Money, which enables their management, when so inclined, to sign their star players to long-term contracts or on occasion, to dabble in the free agent market.   And anecdotal evidence would indicate it has succeeded in this very objective.  Consider the teams inhabiting small-market cities who have signed star players to long-term contract within the last five years alone:  Minnesota, Joe Mauer; Milwaukee, Ryan Braun; Miami, Josh Johnson; San Diego, Carlos Quentin; Arizona, Justin Upton; Seattle, King Felix; Cleveland, Travis Hafner; and Kansas City, Joakim Soria.  The middling talent available through free agency during the last few off-seasons further proves the point.   To revise an old GM maxim, "What's good for the Yankees is good for baseball."     

Yet for all its stock caricature, populist sentimentality, and dramatic simplification, Moneyball nonetheless succeeds in its appeal to the audience's sense of injustice for a significant reason.  Sure, it accomplishes as much through hyperbole, distortion, and sensationalism.  Still Michael Lewis himself subtitled the book from which the film borrows its subtitle as "the art of winning an unfair game."  And whether or not the revenue disparities and payroll imbalances MLB permits actually compromise the outcome on the field perhaps means less in the end, for our purposes, than the general perception that it does.

After all, why does the idea that a revenue-rich baseball team can buy a World Series offend our sense of justice and fair play? Why does this outrage us when every day companies like Microsoft or IBM, despite manufacturing an inferior product, leverage their cash reserves and brand recognition to dominate the international marketplace and to outspend their competition and it elicits no greater reaction from the same public than a collective shrug?  Why on the baseball field do we demand that athletic talent, managerial acumen, or executive discretion alone prevail?  And if only by posing the question, it is, here, perhaps where Moneyball, unwittingly, conveys a fundamental truth about the national pastime and sheds light on the lofty status it occupies in the American imagination.

In his essay, America and Cosmic Man, the Englishmen Wyndham Lewis captured for his compatriots what distinguished their former colony from all other peoples.  The U.S., he wrote, is not a nation in the sense of England or France. "It is a new kind of country... America is much more a psychological something than a territorial something.. [much more] a site for the development of an idea of political and religious freedom than a mystical terre sacrée for its sons, upon the French model."    We, of course, have actualized this 'idea' in a vaunted and time-honored myth commonly called "the American Dream".   It's the social contract the nation implicitly enters with all its citizens, promising to each the opportunity to rise as high and to advance as far as his talent and drive, his savvy and mettle, his industry and initiative will take him.  His racial affiliation, class ancestry, parental upbringing, or nation of origin notwithstanding.

Only the Dream goads our conscience even as it eludes our grasp, receding like the green light at the end of Daisy's dock at the very moment Jay Gatsby came closest to apprehending it.  Still, into our third millennium,  we remain a nation of fluid class lines, swift cataclysmic change, and of democratic aspirations only partially fulfilled-- a land where economic inequality and cultural xenophobia divide us and where a Senator's son, an Ivy League legatee, a trust-fund baby, and celebrity name, among other hereditary privileges, impart professional advantages, financial means, and political clout about which the rest of us can only dream.

Except, that is, on our level-playing field nonpareil.  Where, inside the white lines, to quote Ring Lardner's biographer, "the rules, if observed, guarantee the triumph of merit."  The baseball field stakes a world where objective transparent rules isolate personal excellence.  Where timeless universal statistics quantify it.  Where wealth, fame, honor, and immortality reward it.  Where a man's parentage grants no advantage and individual merit alone carries quarter.

No, it isn't an Arcadia.  If Jose Canseco performed the country any service at all, it was to remind us that fraud, treachery, corruption, and prosaic human vice bedevil Major League Baseball no less than any other business or institution whether it's Wall Street, Hollywood, or Washington.  

It is rather that the "fresh, green breast of [] new world" the Diamond contains and the competition staged within it may project as a real an incarnation of the Dream as America can ever hope to achieve.  


1 Evidently, only the Red Sox win because of ingenuity. Sorkin postscript informs us as follows: "Two years later the Red Sox won their first championship since 1918 embracing the philosophy championed in Oakland," Sorkin's postscript informs us. Their $125,000 payroll that year had not the slightest influence.


2 Both the Red Sox and Cardinals won two titles over this period but ranked 2nd and 11th in payroll, respectively, on both occasions.


3 OPS+ or Weighted OPS measures a player's total offensive production with 100 signifying the league's average players and each point above or below 100 registering an equivalent percentage in variation.

Wednesday, August 3, 2011


"How large is the price, how endless the nagging pain that must be paid for a personal assertion against the familiar ways of the world... that most of us lack the strength to pay."-- Irving Howe

No fan who writes a web log about professional sports does so unless the emotional reward exceeds the compensation money can supply. I include myself in this company. Major League Baseball, the National Football League, and to a lesser extent, the NBA, at their most competitive, arouse in me a visceral passion the world outside of fiction rarely can satisfy. Still, my love for the Game has rarely migrated backstage to embrace any particular sentiment for its players.

This isn't to say that I haven't admired or respected or celebrated a select few for their dedication to their craft; or for the rigor of their discipline; or for the grace and beauty their performances consistently exhibit, or for their capacity-- in moments when the odds, the elements, age or injury, or dwindling talent conspire against them-- nonetheless to muster reservoirs of mettle, desire, ingenuity, and resilience and to defy the clock, to overcome the score, to foil an opponent, to silence the critics and to transcend the seeming limits of the body's strength and the spirit's endurance and to wring victory from defeat by sheer force of will.

Muhammad Ali, Dan Marino, Bernard King, Reggie Jackson, David Cone, Bernie Williams, to name just a few, have inspired me in their triumphs--- and, on occasion, notwithstanding their defeats-- to believe that every once and a while, if only for brief and fleeting moments, that in spite of genetic endowment, ingrained character, adverse conditions and mortal flesh, we actually can guide our destinies and triumph over circumstance.

Yet I wouldn't consider any of these men "heroes" of mine either. I don't idolize professional athletes individually or collectively. Their personal lives don't especially interest me. Their money and celebrity don't infatuate me. My awe, respect, and gratitude for them doesn't differ materially, in fact, from the sentiment awakened by an especially vivid fictional character a gifted and incandescent actor has animated on stage. The performance stirs me, not the actor in costume or the man inside the uniform.

This may explain why the widespread idea that professional athletes should act as role models and uphold some irreproachable standard of rectitude and decorum, few among us actually observe, because little children look up to them always has struck me as rank hypocrisy-- at best, a gross abdication of responsibility, and at worst, a perverse rationalization for it. If children idolize athletes or aspire to emulate them, then the fault, dear Brutus, lies with us.
For we have failed then as adults to propagate moral values more lofty and eternal than fame, wealth, and status and have failed as a country to throw up, for emulation, heroic examples beyond those who embody our religion of success. Power no less than impotence abhors a vacuum. In a void, a child will venerate the idol nearest at hand.

Excellence alone, after all, does not a hero make.

To paraphrase the author Albert Murray, a hero is the representative man who pits himself against the inhuman-- atrocity, injustice, brute nature. Yet half the reason the boxing ring, the gridiron, the parquet, or the Diamond exert their hold on our imagination is because through their concrete color-blind rules, their professional impartial judges, their tangible, quantifiable, and immediate reward of merit they enclose a Platonic arena from which the bugaboos upon which the hero forges his sword have been banished. When men in uniform fan across the field, it evokes in our imagination, to quote Joseph O'Neill in Netherland, an arena of perfect justice.

Along the way, the professional athlete certainly invites failure and defeat; he certainly contends with the elements; and on occasion, he even risks bodily harm. The hero however confronts ostracism, vengeance, infamy and death. This is because he doesn't merely confront danger; the hero seeks it. And he welcomes its mortal antagonism because in the sacrifice he incurs to contest it, he honors a value higher than his financial security, his social status, his personal reputation, or even his life. For by doing so, Murray tells us, he magnifies "the glory of courage, the power of endurance, [and] the splendor of self-sacrifice... [P]romising young men... do not become heroes by simply keeping their police records clean and their grade point averages high enough to qualify them for status jobs and good addresses inside the castle walls" Or, one might add, nor do they merely rack up home run totals high enough to enter Halls of Fame.

No, before any professional baseball player can lay claim to the hero's mantle, he has to have risked and sacrificed for a cause greater than himself and to have suffered the revilement and decimation begotten because of it. He has to have endured the tragic fate of Curt Flood. Indeed, as HBO's documentary "The Curious Case of Curt Flood" portrays him and his sacrificial battle with Major League Baseball-- a portrait that never shrinks from the smoldering pride and stubborn defiance and frequently improvident excess that underwrote its protagonist's reckless courage and flawed nobility-- its creators have identified in Curtis Charles Flood a consummate America hero and man truly deserving of a Hall of Fame.

For those of you unacquainted with Flood's biography or his story's significance in baseball history, I summarize.

On October 7, 1969, a mere year removed from the St. Louis Cardinals' second consecutive National League pennant-- honors which owed a great deal to their star center-fielder-- the franchise traded the 31 year old, 3-time all-star outfielder to the Philadelphia Phillies. Rumors of the Cardinals' intent to trade the fleet outfielder had circulated throughout the season. And Flood swore if it came to fruition, he'd defy it and refuse to go. Good to his word, Flood never reported to Phillies' camp. But rather than concede the immutable unfairness of a system that denied a man any say in where he played even after his 11+ years of service to it and merely retire with his reputation and equanimity secure, Flood chose instead to fight City Hall.

Contesting his trade, in January 1970, Flood filed suit against Commissioner Bowie Kuhn, Major League Baseball, and all the League's then 24 clubs. In it, the former Cardinal contested the League's then existing "reserve clause" regime -- so-called because every player's contract contained a provision in which his team "reserved" the right to renew their players' contract indefinitely and at whatever salary the club chose-- as an illegal restraint of trade under the Sherman anti-trust Act; an unconstitutional violation of the 13th Amendment's prohibition of involuntary servitude according to the 13th Amendment; and unlawful breach of any number of Civil Rights Acts. Flood v. Kuhn essentially asked the Court to repeal baseball's anti-trust exemption, to annul the reserve clause in every player's contract, and to grant Flood and derivatively, all players, the right to free agency. The player's union financed the suit with this very motive. And its President, Marvin Miller, in fact, warned its lead plaintiff before he initiated the action the grave risk he assumed. At best, he could win a Pyrrhic victory. The Court would award him a right in principle, no team then would choose to exercise in practice. Triumph might introduce free agency to baseball from which fellow and future players could profit. However, Flood, himself, would remain a free-agent forever.

Heads, Major League Baseball wins; tails, Flood loses. Seldom have men risked so much to gain so little.

In March 1970, Flood lost his petition for a preliminary injunction. In August, he lost his claim for a permanent injunction and for damages. Two years later, Flood lost on appeal at the Supreme Court. In between, he lost his physical skills and mental stamina, his capacity to focus and his will to play; as a brief, halfhearted, and abortive attempt at a comeback with the Washington Senators in 1971 ended in anguish.

13 games into the 1971, his career came to an abrupt and fateful ending. At the age of 33, Curt Flood had played his last inning in professional baseball.

Now, as any fan of the game knows, teams deal players all the time, uprooting them from their homes and sending them to work half-way across the country. Most of the time, abstract numbers and competitive need propel the transaction. And sure, a baseball player insulated from America's tortured racial history might have perceived his trade as nothing more sordid than business as usual: the Cardinals suffered from lack of power; the Phillies, lack of speed. The Cardinals coveted Phillies' first-baseman Dick Allen's thirty-plus home runs. The Phillies, on the other hand, desired Flood's defensive prowess, plate discipline, and proficiency at generating runs through his speed. However, in this instance, critical elements beyond the players' complementary skills-- indeed beyond the field entirely-- drove the Flood-Allen transaction.

In the essay, "Curt Flood, Gratitude, and the Image of Baseball" collected in his recent book "A Level Playing Field," Professor Gerald Early explains. Both Flood and Allen had developed the reputation of being "problem players". Worse still, at a time when baseball still expected the black athlete to repay his sufferance with grace, humility, and gratitude, both were black "problem players". Richie Allen, a tense, brooding, withdrawn man, had earned the stigma by antagonizing his teammates and alienating Philadelphia's white-working class fan base through fights, unexplained absences, and self-inflicted injury. (The first-baseman, notoriously, cut the tendons in his hand by putting his hand through his car's headlight.) In St. Louis, on the other hand, fans and teammates alike adored and respected the gregarious and urbane Flood. Bob Gibson, in fact, appears in interviews throughout HBO's documentary and exudes the affection and admiration he must have felt for Flood in recalling their time together. [**]

Cardinals' management, it seems, shared Gibson's affection initially. Then, however, the organization's prize center-fielder chose to criticize his team's trade of Orlando Cepeda for a first-baseman named Joe Torre. This also happened to follow a petty and gratuitous speech team owner, August Busch Jr., delivered during Spring Training about thankless ballplayers earning high salaries and incurring no risks. After which, his center-field hand, evidently, compounded his trespasses by committing baseball's cardinal sin. Flood dared to suggest that perhaps owning a monopoly in St. Louis baseball franchises might expose its proprietor to something less than the perilous vulnerability an independent business owner or pioneering entrepreneur risks. And in doing so, he violated, what Early calls, baseball's reigning ethic of gratitude-- the dogma that the game's players (its blacks especially) owe a debt of thanks to its owners and fans, as if professional athletics were a privilege its industry vouchsafes rather than a status the athlete earns.

Early writes,

"The professional baseball industry [this includes all the yahoo sportswriters it co-opts] fosters the expectation of gratitude by mythologizing the game...propagandizing it as a symbol of American democratic values.... thus masterfully and subtly turning the public against any player who does not express that he feels blessed to be playing it."

In 1976, the odious reserve clause regime did topple however. In the Messersmith-McNally case, a labor arbitrator discerned the fundamental injustice the Supreme Court had allowed sentimentality to obscure and awarded the two players free agency. From there, the marketplace swamped the old regime and Versailles crumbled soon afterward. Approximately one hundred years after its founding, America's pastime finally accepted the principle of free labor.

And so, two years later, writer Richard Reeves decided to interview the man who'd dealt the foundation its first blow. But free agency's lonely standard-bearer had suffered for his cause in the intervening years and had no desire to revisit the battlefield. His joust with the windmills had left him battered, broken, and desolate and had stripped him to a shell of the man he once was. As it turned out, the scaffolding that he'd dislodged eventually had fallen, but in the interim, fragments of debris had landed on top of him.

When Reeves finally caught up to him, Flood had begged him to withdraw. "Please, please...don't bring it all up again. Please. Do you know what I've been through? Do you know what it means to go against the grain of the country? Your neighbors hate you. Do you know what it's like to be called the little black son of a bitch who tried to destroy baseball, the American Pastime?"

Flood's "Battle Royal" had cost him first a career. Then turning him into an outcast and sending him into a European exile, it cost him his home, his moorings and his standing. Then, saddled with rage and resentment, wandering for a decade in search of the solace of anonymity and oblivion, it cost him self-possession and peace of mind. Until finally, home again, robbed of sanity and financial security; choking on the bile that comes of bitterness swallowed and anguish stifled, the injustice that he'd gambled everything to rectify eroded his defenses, deformed his character, cost him his health and claimed his life. The man whose implacable voice Baseball could not throttle, throat cancer silenced. Curtis Charles Flood died a largely forgotten man at age 59.

To its credit, HBO has resurrected Flood's story and brought him the recognition and vindication he has long deserved. Still, it bears asking the question: does the institution responsible for destroying this man honor and revere him for his courage and perseverance or exalt and cherish him his sacrifice? Who grieves the loss of free agency's John the Baptist. The $30 million a year superstar Flood enabled? The membership of the Player's Association he empowered? The $7 billion a year corporate industry known as Baseball Inc. that now reaps titanic profits from the very free agency-- through the Hollywood star system free agency wrought--- Curt Flood once espoused and Major League Baseball, in all its myopic atavism, battled so ruthlessly to defeat?

Where in Cooperstown's stands a monument for the man who spearheaded the end of the indentured servitude to which baseball's owners clung as though not only the game itself but their very livelihoods depended on it? Where shines a bust to the genuine hero who "struck out against injustice... and whose tiny ripple of hope... had swept away a mighty wall of oppression and resistance;" whose act spawned a revolution in a pastime steeped in its own hidebound prejudices and romantic nostalgia and liberated it from its own worst intractable, self-defeating proclivities? In all baseball's vain, self-aggrandizing, and meretricious rhetoric about heroes and legends, where does it hallow the memory of Curtis Charles Flood?

Nowhere. And notwithstanding HBO's arresting and much-needed documentary about him, America's pastime isn't likely to fete him anytime soon. For Curt Flood's biography belongs to the counter-myth of baseball. It is the story of ruthlessness and brutality and greed baseball doesn't like to acknowledge and the nation doesn't wish to hear. It's the story of Josh Gibson, Donnie Moore, Charlie Shoemaker, Doug Ault, Brian Powell, and most recently, Hideki Irabu: these are the men the game used up, discarded, and then disposed of; men it as good as killed or literally left to die. Their tragedies people the real-life grotesque of depression, suicide, alcoholism, failure, and ignominy that is flip side to baseball's certified mythology about heroes, legends, fame, glory and the American Dream.

And here lies Curtis Charles Flood's greatest significance. For as much he may epitomize the doomed innocent in a racial parable or signify the tormented athlete in a sports anti-myth, Curt Flood figures ultimately as the noble martyr and paladin in a grand American Tragedy.

He personifies the great national tradition of implacable resistance and vehement dissent running from Roger Williams through Patrick Henry and Harriet Tubman to Martin Luther King. The Citizen so exercised by injustice, so intolerant of oppression, so immune to the Bitch Goddess' allure that he will court failure, risking wealth, career, power, prestige, reputation, standing, family, love, and if necessary, life itself in behalf of a cause-- in behalf of, for Americans, the cause. It is the cause for which religious dissidents, venturesome settlers, dissolute colonials and incorrigible revolutionaries defied the power and might of the greatest empire on earth to secure an elementary human principle and from it, to spawn a new kind of a nation-- one without ancestral monarchs, inherited classes, or an established church and where its citizen controlled his fate, above all, through the inviolate right to sell his labor and to own its fruits.

By another name we call it the cause of freedom. And to introduce it into one of the new nation's oldest institutions no less than a hundred years after its organized birth, the St. Louis Cardinals' center-fielder invested and lost everything -- career, livelihood, status, family, equanimity, health and life.

Yet a game which doesn't salute the heroic sacrifice of Curtis Charles Flood accordingly or commemorate his brave struggle or mourn his tragic legacy or establish a place for his daring gallant failure alongside the anodyne successes celebrated in its Hall of Fame isn't deserving of its national mantle: The so-called "American pastime" is just another name.


**In fact, anyone who wants to witness an example the fundamental distinction between a champion athlete and a genuine hero need only compare respectively the savvy and artful accommodation Gibson admits he negotiated with the status quo and the self-destructive, bullheaded confrontation with it Gibson ascribes to Flood. Gibson's enigmatic personality and calculated tact seem to mine a survival strategy belonging to a very different tradition in his people's history. One to which Ralph Ellison memorably voiced it in the Invisible Man's father's death-bed confession: "Live with your head in the lion's mouth... overcome 'em with yeses, undermine 'em with grins, and agree 'em to death and destruction, let 'em swoller you till they vomit or bust wide open." In this, Gibson acts as Daniel to Curt Flood's Samson.

[1] We saw this expectation resurface recently in the clamor about whether Derek Jeter "owed" it to the fans to appear in the 2011 All-Star game. Expecting as much from Jeter is the equivalent of Anheuser-Busch demanding that its CFO play in the beer industry's (not even the company's, mind you) annual exhibition softball game during his summer's single four-day weekend.