Monday, October 23, 2006

Tony LaRussa and the Mystery of Moral Judgment

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 Comericathe 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.Tiger_1

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.

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Tracked on Oct 23, 2006 10:45:07 AM


let's assume that larussa did make a spontaneous decision to defer to his own sense of justice as opposed to the positive law.

the problem is that he wasn't exactly playing poker with his own money. he was acting as the employee of an organization, managing a team of professional athletes. everyone involved has a serious stake in the outcome of the series, financial and reputational.

what would give larussa -- a lawyer, after all -- the right to privilege his own sense of justice over the positive law, in a situation where others (whom he did not consult) may suffer the consequences?

i don't understand you to argue that the "foreign substances" rule is itself immoral. rogers had plenty of notice of the consequences and his violation (if it occurred) was neither unintentional nor trivial.

so please explain why you would doff your hat to a manager who disadvantaged his owner and players?

or have i missed some subtle irony in your post? as a detroit fan, are you simply encouraging larussa to indulge in more of the same self-defeating behaviour. pretty clever -- praise his morality while you go for the jugular!

Posted by: steve lubet | Oct 23, 2006 12:41:17 PM

It's possible that LaRussa acted in his team's best interest, in the face of uncertainty about the substance, by pursuing a middle course. If he makes a full-on accusation and is wrong, it looks like he's try to win through baseless claims, complaining, etc., when they just weren't good enough to hit off Rodgers. He would have given the opponent great emotional fuel. The way LaRussa actually handled it, he gets a two-fer: he gets a clean-handed Rogers and avoids a potential backfiring. Granted, he takes the best result out of play (a suspended Rogers), but he also avoids the worst result (a rejected accusation, a fired-up opponent, and tons of distractions with the media).

There's no need to reach for elaborate explanations when simple self-interest explains what he did. Steve, do any of those poker strategies illustrate how to slightly hedge your bets?

Posted by: John Steele | Oct 23, 2006 1:32:44 PM

Ah. You have raised the agency issue (LaRussa's fiduciary obligation, having made his moral judgment to his employers). This is not the agency department. For agency, see the Unincorporated Business Prof Blog, the official agency blog of the AALS.

Posted by: Jeff Lipshaw | Oct 23, 2006 1:35:45 PM

Jeff -- among lawyers, i don't think it's possible to discuss morality apart from agency.

John -- your argument has three problems: (1) tony larussa is famous for raising minor objections and slight rule violations;(2)taking a pitcher out of his rhythm is universally considered worth the risk of providing emotional fuel; and (3) the foregone payoff -- eliminating rogers from the series -- simply dwarfs any conceivable benefit.

the best poker analogy, however, is not to bet hedging, but rather to pot odds. the potential payoff was enormous -- eliminating detroit's best pitcher for the rest of the series -- while the risk was trivial. larussa should have protested (unless he was making a "moral" decision, which nonetheless would have violated his obligations to his teamI.

Posted by: steve lubet | Oct 23, 2006 5:54:27 PM

So, Steve, what's your theory on LaRussa's purpose in handling it that way? Stupidity? Betrayal of his own team to make his friend Leyland happy? Something else?

(I still think he knew exactly what he was doing.)

Posted by: John Steele | Oct 23, 2006 9:01:58 PM

John: Why do I need a theory? What would be the value of having one (other than entertainment)?

As I teach my students, it is necessary to evaluate multiple potential theories based on the available facts. On this blog, we might then measure each possibility against principles of ethics, professionalism, or morality.

Couldn't it be possible, though, that LaRussa simply screwed up? Made a "mental error" that he now regrets?

If I were defending him in a trial, I would make arguments such as (1) he was acting on a greater moral purpose; of (2) it was part of a sly, subversive strategy. But speaking as a non-advocate, my best guess is that he blew it.

Posted by: steve lubet | Oct 24, 2006 7:29:18 AM

LaRussa is quoted in the paper saying, "I'm sure there are fans of ours, and maybe teammates or people in the organization, that said 'you should have gone to the mound.' I said, 'I don't like that stuff; let's get it fixed first. If it gets fixed let's play the game.' It got fixed, in my opinion, and we never hit the guy. That's kind of the philosophy of competing I was taught."

Posted by: John Steele | Oct 24, 2006 7:56:09 AM

I feel redeemed. He knew and he made a choice.

Posted by: Jeff Lipshaw | Oct 24, 2006 9:45:28 AM

if the cardinals lose the series -- with rogers winning the sixth game for detroit -- i'll bet that the players won't feel redeemed. they'll just be pissed.

Posted by: steve lubet | Oct 24, 2006 11:03:59 AM


I thought you'd like that quote. The last sentence, "That's kind of the philosophy of competing I was taught," is also consistent with the idea that LaRussa was going for the intermediate result because that's the way he learned to do it.

Posted by: John Steele | Oct 24, 2006 11:16:06 AM

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