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April 22, 2008

Stupid Lawyer Tricks

Advice for the Young at Heart

by Derek Jacques

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It's been a while since our last foray through the legal underbelly of baseball. We've seen a fair bit of action in the last week in particular, regarding questions of age-one star player skipped across the back end of his prime in the blink of an eye, while another had a disagreement with his ballclub over whether he's reached the end of the road.

Let's start with Miguel Tejada, who joined Ann Coulter and Traci Lords (as well as, yes, a whole bunch of other Dominican ballplayers) as famous people who have fibbed about their age. The Astros shortstop revealed last week that his actual birth date was two years earlier than the one that's been listed throughout his career, making him a soon-to-be 34-year-old rather than a soon-to-be 32-year-old. The revelation came on the heels of an ambush interview with ESPN, where Tejada was confronted with a copy of his 1974 birth certificate, after telling interviewer Tom Farrey that he'd been born in 1976.

As a Dominican-American, let me say that all the Dominican age jokes were pretty tired back in 2002, when dozens of players getting their spring training work visas were busted for claiming false ages (and sometimes, fake identities) under the more stringent background checks imposed after the September 11 terrorist attacks. Recent examples to the contrary, the tendency of ballplayers to shave a few years off their age wasn't always an exclusively Hispanic pursuit-in a 2002 column, Rob Neyer found that nearly a quarter of the players in the 1952 Baseball Register-including some big names, like Pee Wee Reese, Phil Rizzuto, Hank Sauer, Alvin Dark and Warren Spahn-listed false birth dates. Prior to World War II, birth records were kept much more haphazardly than they are today, and so it wasn't terribly difficult for someone to fudge their birth year, particularly if they were born in a rural area or delivered by a midwife, rather than in a hospital.

Later, better record keeping and computerization made it difficult for American-born players to lie about their age and get away with it, so that tradition dried up. But the temptation is still there in countries where documentation is more lax, and the barriers to shaving a few years off one's age are lower. For example, a baseball official told the New York Times in 1998 that it was between 15 and 20 times cheaper to secure altered or falsified documents for a ballplayer in the Dominican Republic than it was in Venezuela. That figure goes a long way toward explaining why Venezuelan players are seldom caught in age controversies like the one involving Tejada.

Getting to the legal implications for Tejada, there are two important details. First, and most important, is the fact that despite giving a misleading birth date to the Oakland A's when he was signed in 1993, Tejada apparently was straight with the US government; the Houston Chronicle reports that his driver's license and green card both list his accurate birth year. This means that this revelation is unlikely to impact the federal perjury investigation of Tejada that was requested by the House Committee on Oversight and Government Reform. Lying about your age on an immigration application is a serious offense, but lying about it on the back of your baseball card doesn't rise to the level of a federal crime.

The other detail is that the Houston front office is giving absolutely no public indication of anger or concern over Tejada's age, with General Manager Ed Wade going so far as to claim that it doesn't matter because Tejada "plays like he's 25." While that last contention's a bit much, it seems to indicate that the major legal pitfall potentially facing Tejada-the Astros trying to void his contract-isn't in the cards.

There is some precedent for a major league team getting out of a contract based on "fraud" in the form of a false birth date. Back in 2001, the Yankees were able to void the four-year contract of Cuban defector Andy Morales when it was revealed that Morales was actually three years older than he'd claimed. Morales, a third baseman, was struggling to hit in Double-A when the Yankees produced documentation that his listed birth date was a fabrication.

Now, simply proving a player's listed birth date is wrong might not be enough to void a contract. First, the team would have to prove that they relied on the player's representation of his age-so, if the team discovered the player's true age before they signed the contract, or if they didn't believe the player's claims about his birth date from the very beginning, but signed the contract anyway, they'd be pretty hard-pressed to cry fraud later. Since Tejada's real birth date was documented with state and federal authorities, it's possible that the Astros, (and possibly the Orioles before them) knew how old Tejada really was all along.

A team might also have to prove that the player's age when he signed the contract was an important factor. That seems like a no-brainer, particularly to anyone who read Nate Silver's excellent article using PECOTA to show the effect that aging a couple of years has on Tejada's projected long-term value, but unless there's language saying that an accurate birth date is material to the contract, you couldn't take this factor for granted.

However, the most important matter between Tejada and the Astros is probably a practical one, rather than legal. Teams don't void contracts out of moral outrage over having been lied to; for example, at the same time Morales was getting his contract voided by the Yankees, they had another Cuban exile on the roster who'd lied about his age. Orlando Hernandez originally claimed to have been born in 1969, eventually, Cuban divorce documents came to light that showed him to have been born in 1965. The difference was that by the time that El Duque's true age was revealed to the public, he'd already proven himself an effective major league pitcher with a World Series ring to his credit, and the four-year, $6.6 million contract the Yankees signed him to before the 1998 season was considered an absolute bargain. Tejada's deal may not be quite as good, but Tejada's still reasonably productive, and the Astros are only on the hook for one more season after 2008-which makes it more than a little bit easier for the front office to act like his age is nothing more than a number.

Frank Thomas didn't receive from the Blue Jays anywhere like the friendly treatment the Astros lavished on Tejada, and he's been consistently honest about his birth date. After a short slump, Thomas found himself benched, and expressed concern that Toronto was trying to keep his playing time down to keep his $10 million option for the 2009 season from vesting and becoming guaranteed. Much like Tejada's situation, we're unlikely to see legal fireworks from this because the player and team seem to have worked things out amicably. Thomas was released by the team, which meant that either someone would claim him on waivers-the team that claimed him would inherit his contract, along with the vesting option for 2009-or he'd become a free agent. If Thomas went unclaimed, the vesting option would be dead, but the Jays would be obligated to pay him everything that he was guaranteed at that point in the contract: his 2008 salary, and any buyout sum for the option year. After passing through waivers, any team could sign him to a minimum-salary contract. (It wouldn't make sense to pay him more than the minimum-any sum that another team pays him to play baseball in 2008 would be deducted from the amount of salary the Jays owe him.)

While the term "grievance" had been tossed around with regard to the decision to bench Thomas, there's no exaggerating how premature such talk was. In April, with Thomas needing only 300 or so additional plate appearances to trigger the option, you could bench the Big Hurt for the next two months and he'd still have a solid chance to meet his playing time target. A player wouldn't have any basis for a grievance until it was absolutely certain that he'd been denied an opportunity to vest his option, likely once the season was over. If this situation had carried through to that point, it's likely a grievance would have resulted, but I'm not sure that it would have been a slam dunk.

To win the grievance, Thomas would have to show that the Jays benched him in bad faith, just to keep him from vesting his option. Joe Sheehan did a good job yesterday explaining why benching or releasing Thomas is a bad baseball decision-that is, a decision that doesn't help the Jays win ballgames on the field. After all, Thomas could straddle the Mendoza line all season and still be a better option than Rod Barajas at DH. However, one has to wonder if the field of legitimate, good-faith baseball decisions is limited to decisions that maximize winning, or does it encompass other considerations? Could the Jays have defended their actions by invoking intangible considerations related to team morale or discipline? We'll have to wait for some other case to find out.

Derek Jacques is an author of Baseball Prospectus. 
Click here to see Derek's other articles. You can contact Derek by clicking here

Related Content:  Miguel Tejada,  The Who,  Team Age,  Player Age,  Year-to-date

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