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January 10, 2013

In A Pickle

Jay Walking is no Felony

by Jason Wojciechowski

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Darren Oliver is, depending on your perspective, in something of a pickle or a greedy bastard who should just shut up and throw the ball like he agreed to. The gist of his situation is:

  • The Blue Jays exercised a $3 million club option on Oliver for 2013
  • Oliver would like to play, but he doesn't want to spend another year away from his family (who live in Dallas) for that little money

You can read the full facts as told by Ken Rosenthal and Jon Paul Morosi at FOX Sports by clicking that link.

Blue Jays writer Andrew Stoeten has been following the story. On January 4, he posted this at Drunk Jays Fans. You should read the story because Mr. Stoeten is good at what he does, but what really caught my eye were the comments: 188 of them at this writing, many of which fall on the "greedy bastard" side of things. The essence of their argument is that Oliver agreed to play baseball for the Blue Jays at the rate of $3 million per annum if the Blue Jays decided that they wanted to pay him that (i.e. if they exercised the option) and that threatening to retire if he's not paid more (or traded to a team closer to his family) is immoral or in bad faith.

This position does not hold for at least three reasons: contracts are economic, not moral; Oliver hasn't taken any unfair advantages in attempting to get more money than his contract says he is owed; and we as fans don't have any right to judge his behavior vis a vis the team in any case.

Morality or $$$

Contracts are not moral devices. Contracts are business agreements that governments have seen fit to enforce using the myriad powers of the state because such enforcement renders business relations more predictable and thus reduces the costs associated with uncertainty. If the cheese producers of America had to negotiate a new price, new delivery terms, new shipping standards, and new quality thresholds with the milk producers of America every time they needed a resupply, cheese would have to sell at a very high price to cover the additional costs associated with all that negotiation. It is expedient to be able to set all those terms once for some period of time or some number of shipments and to be able to rely on those terms. The entire edifice of contract boils down to that: we as a society have decided that we're all better off economically if we hold people to their bargains.

Despite the existence of government enforcement, companies breach contracts all the time. A first-year law student reads dozens of cases for her Contracts class, every single one of which arose from a breach of a contract over which someone sued. My Contracts professor explained the great volume of breached contracts this way, with the background that there are 950 cases in our textbook: out of all contracts, some tiny percentage are breached; out of all breaches, some tiny percentage result in lawsuits; out of all lawsuits, some tiny percentage result in a court judgment; out of all judgments, some tiny percentage are appealed; and out of all appeals, some tiny percentage are interesting and weird and instructive enough to end up in a casebook. Thus, if you work backwards from the number of cases in a casebook (again, 950 in my case) to the number of breaches, you're talking about multiplying by a number with many zeroes. Even considering that the book covers a significant period of time in Anglo-American law (a few cases stretch back to the early 19th century), I hope it's clear that breach is incredibly common.

Commonality or even near-universality of an action doesn't mean we can't consider that action wrong. Adultery, for instance, is quite common, but most people with a mainstream set of views consider it immoral. Still, I think it's worth thinking particularly hard about our moral boundaries if drawing those boundaries leaves huge, overwhelming swaths of the populace outside the realm of good behavior.

In short, ascribing morality to contractual relations is fraught with difficulty and certainly requires more thought and consideration than shouting "but he promised!" while pointing at the offending party.

Oliver's Actions

Whatever you think of the morality of contract in general, the leverage that Darren Oliver has brought to bear is not of the type that raises moral difficulties. The basic threat Oliver has employed is that he'll retire rather than play baseball in the snowy wastes of Canada, far from his family in Texas.

Here's a shorthand for what Oliver is saying: "Pay me $X or I will retire." What if, instead, things went like this:

(Hypo #1)
Oliver: "I'm retiring."
Blue Jays: "What if we paid you $X?"

Does Oliver act immorally or renege on his contract if he changes his mind about retirement and accepts the offer of $X? It would seem that Oliver was, in this case, tempted by filthy lucre, which may or may not be morally defensible, but I don't see any room for an argument that Oliver has violated his promise to the Blue Jays.

What about something in the middle of the two poles?

(Hypo #2)
Oliver: "I'm retiring."
Blue Jays: "What if we paid you $X?"
Oliver: "Nah, still retiring."
Blue Jays: "Okay, what if we paid you $X + $Y?"

Is there some negotiation that Oliver has implicitly engaged in that makes this position wrong, but the above, where he simply accepts the offer, not wrong? What if he's completely genuine about retiring, i.e. "I'm retiring" isn't simply a ploy? The Blue Jays just convinced him to change his mind, and it turned out that their first attempt to do so didn't quite convince him. What has Oliver done?

Let's tiptoe a bit closer to what's apparently happened in real life:

(Hypo #3)
Oliver: "I'm retiring."
Blue Jays: "What if we paid you $X?"
Oliver: "If you make it $X + $Y, I'll do it."

In this hypothetical, Oliver has responded to a Blue Jays overture by naming his price. If the Blue Jays want to meet that price, great. If not, then not. Is there a distinction to be drawn between Oliver in this scenario and Oliver in real life? In one, he makes a money demand and says he'll retire unless it's met; in the other, he says he's retiring and then makes a money demand. The order of events should make no difference morally. If one is wrong, so is the other.

But, noting that Hypo #3 does not materially differ from real life, what's the distinction between Hypo #3 and Hypo #2? In one, Oliver says the words "$X + $Y" and in the other, the Blue Jays say them. Does the difference between right and wrong really come down to which party names the price? That's an awfully thin reed.

One additional aspect is the expectations of the parties when they created an option:

Oliver agreed to a one-year, $4.5 million free-agent contract with the Jays last January, figuring that he likely would retire at the end of the season, sources say.

If everyone thought Oliver would retire, then what exactly is his threat to retire? The Blue Jays exercised their option on him to cover their bases, to make sure they still had the rights to employ a valuable baseball player at a reasonably cheap salary if Oliver decided that he could put off being a full-time dad for one more year. Oliver then says, "Eh, I might go ahead and do what you figured I was going to do unless you pay me more." Whatever you think of labor exercising economic power, this isn't exactly a plant sit-in as far as surprise or disruption to operations. Retirement was on everybody's mind from the start.

Maybe you can examine the above series of similar hypotheticals in light of the actual situation the Blue Jays and Oliver are in and come to the conclusion that it really really matters that Oliver was the one who demanded more money rather than simply being offered money by the Blue Jays. I don't see this argument as tenable in the least.

u mad

Last, let's say that contracts do have a moral component and that Darren Oliver is guilty of behaving immorally toward the Blue Jays, the party with whom he has a contract. This does not mean that we as fans, people who are not parties to the contract, have any fair basis to claim that Oliver has hurt us.

Why are we so mad? What right do we have as fans? What does Darren Oliver owe us? Yes, there's a good argument that the paying customers deserve his best efforts to stay in shape, to pitch well, and so forth, but that duty only arises once he has joined the team. Until he agrees to actually put on the uniform, there's no basis for making a claim over his actions and decisions. Arguing otherwise is tantamount to saying that Oliver owes us a moral duty to play baseball. Not to give his best efforts when he's on the field, but to actually walk out on the field.

Lest you think I'm battling a strawman, one commenter made this argument explicit:

you don't just walk away from the game because you don't get paid enough, you walk away because either you're time to move on or your abilities aren't there anymore.

Link. Yes, that may be a particularly bad argument, but I find it representative of the general level of entitlement in fans claiming that Oliver is behaving badly.

There's a legal analogy here: courts will not order what is known as "specific performance" of employment contracts, which means that if an employee breaches an employment contract, the court will not order as a remedy that the employee do work for the employer. (Hopefully the reason for this is clear. Check out the 13th Amendment if it's not.) We should be awfully careful about edging into feeling that a player owes anyone a duty to actually play.

And even if Oliver owes the team a duty, what business is that of ours? The team, believe me, can take care of itself. It's no concern of ours.

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

Related Content:  Darren Oliver,  Contract Law

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