Monday, October 23, 2006
Posted by Jeff ("My Favorite Number was Six Because It Was Al Kaline's") Lipshaw
I concede to nobody (well, maybe an individual - not a business - who actually kept season tickets for the last thirteen years or so) more Detroit Tiger fan bona fides than my own (see typically handsome Tiger fan, below right*), but my Old English D cap is off this morning to that lawyer (yes, folks, he has a law degree from Dan Markel's permanent gig, Florida State) who also happens to manage the St. Louis Cardinals, Tony LaRussa.
For those of you who weren't watching, or missed the sports report this morning, Kenny Rogers, a 41 year old pitcher, whose skill lies in his craft rather than sheer power, threw a gem last night, as the Tigers tied up the World Series at one game a piece. But the big story is that the Fox television cameras picked up, in the first inning, a substance on the fleshy part of Rogers' palm that looked suspiciously like pine tar. Now pine tar is a substance that is around just about every dugout, because batters use it to help provide a better grip on the bat. But the rules in baseball are absolutely and unambiguously clear: a pitcher may not use any foreign substance to affect the flight of the ball, or have it anywhere on his person.
8.02 The pitcher shall not . . . (b) Have on his person, or in his possession, any foreign substance. For such infraction of this section (b) the penalty shall be immediate ejection from the game. In addition, the pitcher shall be suspended automatically for 10 games.
There is no doubt in my mind that LaRussa knew the text of this rule by heart. Yet he did not demand an inspection by the umpire, merely "complaining" between innings. It appears that the home plate umpire said something to Rogers, and the substance was gone by the time Rogers came out for the second inning. Rogers, by the way, after the game, was a paragon of inconsistency, but claimed it was a "clump of dirt" that he did not realize was there. Right. And I'm not sure if I'm wearing my glasses right now.
Now cheating in baseball (and I don't mean steroids) is the stuff of lore and legend, whether it has been emery boards, Vaseline (usually stored in the pitcher's nether regions), corked bats or stolen signs. In his classic book, Ball Four, Jim Bouton claims that the Hall of Fame pitcher Whitey Ford could make a baseball dance funny if the league president's name was stamped crookedly on the ball.
Why then do I think LaRussa, as lawyer, deserves accolades for a sublime moral judgment? More on that below the fold.
The talking heads on ESPN Sports Center (Rece Davis, John Kruk, Dusty Baker, and in particular, a former baseball executive, Steve Phillips) this morning could not for the life of them understand why Tony LaRussa did not march out and demand an inspection.
It happens that I have written on just this issue (well, the example was of a despicable CEO with a golden contract, not a baseball manager), and the article will be coming out in Law, Culture and the Humanities (Volume 3, Issue 1): Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise. I just happen to have the abstract at my fingertips (untainted by any pine tar):
I suggest the difference between the law of consensual relationships (i.e., contracts) and the morality of those relationships is one of compulsion and freedom. In the former, we find ourselves being compelled by, or compliant with, a rule some distance removed from the basic norm; in the latter we find ourselves in touch, constantly and sometimes in the face of more visceral obligatory rules, with a far deeper and more fundamental (transcendental) sense of fairness. Moral decisions are the ones made without any threat of compulsion from the law. The clearest example in commercial relationship of a moral decision unfettered by the positive law is the promisee's choice not to enforce an otherwise legally binding contract.
LaRussa knew precisely what would have happened if he demanded an inspection. The rule is brutally mandatory: if any foreign substance were on the pitcher's body, Rogers would have been ejected from the game, and ineligible for the remainder of the World Series.
Here's my speculation: LaRussa understood precisely the impact of such an action, and determined in that instant he did not want to be the beneficiary of the rights to which he was entitled under the rules. Would winning have become more likely? Yes. Did LaRussa want to win that way? Over his best friend, the Tiger manager, Jim Leyland? I don't think so. So he signaled that he knew there was a problem, and let the matter be resolved without full recourse to his legal rights.
Was it utilitarian? I don't know. This is precisely the dilemma that Professor McGowan and I agree will never be resolved. Do we conclude that LaRussa simply would not derive enough utility from beating the Tigers without Rogers to overcome his not wanting to hurt his friend or his not wanting to test his team against the best? I do think the culture of winning (whether in sports or litigation or business) is so pervasive as to make a decision not to grab the rights to which one is entitled almost inexplicable in utilitarian terms. So my conclusion is that LaRussa made a spontaneous distinction between the positive law and the moral law, determined that the positive law did not accord with his own sense of justice, and deferred to a different solution.
* My son, Matt.