The Nexus of Nerdom (Baseball and Law)

Because I’m training to be a lawyer and I’m also a hopeless baseball fan, it’s time to merge those two passions and play Applying Statutory Construction to the baseball rulebook. Yes, I’ve always been this big of a dork. It’s just that law school allowed me to be a dork with laser-like precision.

If you’ve been watching the World Series, or even the SportsCenter highlights, you are aware that Kenny Rogers had a foreign substance on his hand in Game Two which looked suspiciously like pine tar. The umpires said it was dirt, made him wash his hands, and that was that. Endless bitching has since ensued because that’s what baseball writers do.


But let’s look at the rulebook, because well, we can. And, as mentioned, I’m a dork. The rule in dispute is:

8.02
The pitcher shall not --
(a) (4) apply a foreign substance of any kind to the ball;
(5) deface the ball in any manner; or
(6) deliver a ball defaced in a manner prescribed by Rule 8.02(a)(2) through (5) or what is called the “shine” ball, “spit” ball, “mud” ball or “emery” ball. The pitcher is allowed to rub the ball between his bare hands.

The umpires disingenuously claimed after the game that dirt is not a foreign substance as it is part of the field. And that would cover a violation of Rule 8.02(a)(4). Let’s just assume that is true, because I don’t think the issue will be decided on the definition of “foreign substance”. Unfortunately for their contention, there are also parts 5 and 6. Rule 8.02(a)(5) makes it “illegal” for a pitcher to deface the ball IN ANY MANNER. So it is irrelevant if Rogers used pine tar or dirt to deface a ball. Even more damning is part (a)(6) which specifically references a “mud ball” which is exactly what you think it is.

Also, note the “or” in the rule. These violations are clearly disjunctive. It is a separate violation to apply a foreign substance, deface the ball in any manner, and then throwing the defaced ball.

Rogers’ only credible defense is that he was using the substance to better grip the ball, and did not “apply” any substance to the ball or “deface” it. He simply applied a substance to his hand for better grip of the ball, and the substance was never applied to the ball. I don’t much believe this argument, if you put pine tar on your hand, some of it is going to get on the ball, which would meet the requirements of the rule.* There is nothing here about intent. (Actually, there is, more on that after we get through the penalty)

So, Kenny Rogers is a dirty, filthy cheater. Even if it’s just dirt (and we accept the definition of foreign substance which excludes dirt), which I don’t think anyone honestly believes. What to do? Well, the Rule 8.02 helpfully includes a PENALTY section.

PENALTY: For violation of any part of Rules 8.02(a)(2) through (6):
(a) The pitcher shall be ejected immediately from the game and shall be suspended automatically for 10 games.

Not looking good for Mr. Rogers. However, included in the rules are official comments, just like in the UCC. And there’s an interesting tidbit in there. That’s right, we are coming back to the intent issue.

Rules 8.02(a)(2) through 8.02(a)(6) Comment: If a pitcher violates either Rule 8.02(a)(2) or Rule 8.02(a)(3) and, in the judgment of the umpire, the pitcher did not intend, by his act, to alter the characteristics of a pitched ball, then the umpire may, in his discretion, warn the pitcher in lieu of applying the penalty set forth for violations of Rules 8.02(a)(2) through 8.02(a)(6). If the pitcher persists in violating either of those Rules, however, the umpire should then apply the penalty.

So, if the umps give Rogers the benefit of the doubt, and decide to believe that Rogers accidentally covered his palm in pine tar (or dirt), they can give him a warning in lieu of the penalty. So the penalty is not necessarily automatic, it is left to the discretion of the umpire. Which I believe is what happened. Rogers was given the warning and did not persist in violating the rules.

But that also misapplies the rules. This mens rea exception only exists for a violation of Rules 8.02(a)(2) and (3). Rogers did not violate those rules. He violated Rules 8.02(a)(5) and (6). And he violated Rule 8.02(a)(4) if you don’t believe the shiny substance on his palm was dirt. There is no exception for umpire discretion for Rogers’ violation.

The rules clearly and unambiguously called for Rogers ejection from the game and a 10 game suspension. Can’t anyone read a simple statute anymore? Isn’t Tony LaRussa a lawyer?** Shouldn’t he be on top of these things?

Who knew that baseball was no different than LAPP? By the way, a balk is described in Rule 8.05. It is perhaps the most impenetrable use of language ever put to paper since Ulysses. It actually has a subpart (m).


*Actually, he has another defense, but its not addressed anywhere in the rules. What is the burden of proof? We have photographs that Rogers had a substance on his hand, but no one has produced a doctored ball. Having the substance on his hand is certainly circumstantial evidence that some of the substance was transferred to the ball. But it is not prima facie evidence he violated Rule 8.02. And the intent argument cuts both ways. Rogers may have intended to put something on the ball, but that doesn’t matter. What matters is whether he actually did put something on the ball.

How hard is it to produce a baseball? LaRussa should have demanded the umpires inspect the ball. His failure to do so may constitute a defense for Rogers. Just lazy enforcement of the rules here. I’m not sure what the standard of proof required for a “conviction” is, but Rogers has a pretty good argument that there is insufficient evidence. If I’m representing him, this is the tact I take. Though it’s a terrible argument in the Court of Public Opinion.

Though I do like making it Tony LaRussa’s fault, since I believe he has ruined baseball with his excessive use of middle relievers. Seriously. The Lefty One-Out Only Guy (LOOGY) is a scourge on the baseball landscape. It’s taking playing the percentages to an absurd degree.

**Editor’s Note: Yes, he is.

*** NOTE FROM MANAGEMENT: I think this is compelling evidence that Major League Baseball needs to hire me.