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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Thursday, November 20, 2008

Gentlemen's Agreement or Implicit Understanding

Wrigley Today's New York Times has a fascinating account of a dispute regarding a 22-year-old Japanese pitcher named Junichi Tazawa.  Mr. Tazawa sports a gaudy 1.02 E.R.A. and can throw a 97 mile per hour fastball.  Not surprisingly, Major League Baseball (MLB) teams in the United States are interested in hiring the young hurler.  But this sort of thing simply isn't done.  U.S. teams have never gone after Japanese amateurs. 

Tazawa was not chosen by any of the 12 teams that constitute Nipon Professional Baseball (NPB), the Japanese counterpart to the United States' major leagues.  Indeed, his only option was to pitch for Japan Oil's team in the industrial league, which is not affiliated with the professional leagues. 

For some time, international transactions involving baseball players in Japan and the United States have been governed by a protocol agreement between MLB and NPB.  According to that agreement, Japanese professional players can only play for U.S. teams after they have completed nine seasons in Japan unless they are "posted" earlier.  Posting permits a team to auction off a player before he has completed nine seasons.

Since Tazawa is not in the NPB, he is arguably not covered by the protocol agreement.  According to the Times, MLB officials were outraged when a Japanese official suggested that there was a "gentelmen's agreement" that MLB would not try to lure amateur talent to the Untied States and thus evade the protocol agreement.  Some baseball officials, including the Yankees' Brian Cashman, side with the Japanese, but this excerpt from the New York Times article is what I find really puzzling:

“This was more than just a gentlemen’s agreement, but rather an implicit understanding that the major leagues would do no such thing,” Nippon Professional Baseball said in a news release on signing Japanese baseball amateurs. “That a handful of clubs from the majors is trying to break this gentlemen’s agreement is truly regrettable.”

I wouldn't think that an implicit understanding would be "more" than a gentlemen's agreement, especially where, as here, there are wildly differing views as to the extent and nature of the understanding.  But if the NPB does not think there was some sort of (presumably unenforceable) gentlemen's agreement relating to Japanese amatuers, why call it a gentlemen's agreement?  Perhaps something is lost in translation.

In any case, while MLB and NPB are fighting over whether or not they have an agreement, I see an opportunity for my co-blogger, Frank Snyder.  Why not offer Tazawa a spot in the Texarkana Gunslingers' starting rotation?  Tazawa can pitch a season with Texarkana without violating any agreement between MLB and NPB.  After he's pitched in the U.S. for a year, would NPB have any standing to object to a contract that Frank might negotiate on Tazawa's behalf with, for example, the Chicago Cubs?

[Jeremy Telman]

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