By Dave Sheinin
Washington Post Staff Writer
Friday, July 3, 2009
The Major League Rules is a sprawling, dense, little-known, 254-page document, periodically updated, that governs the business side of baseball. Among other things, it lays out, in painstaking legalese, the process and guidelines for the sport's annual draft, and in recent years, these sections have provided a road map for a certain notorious agent bent on circumventing the draft itself.
In 1996, agent Scott Boras exploited a loophole to help gain free agency for four draftees who did not receive contract offers from the teams that selected them within 15 days of the draft, as required. A year later, he unsuccessfully attempted to make Philadelphia Phillies draftee J.D. Drew a free agent by taking him to the independent Northern League and thus changing his official status from "amateur" to "professional."
This summer, Boras has another high-profile client, San Diego State pitcher Stephen Strasburg, for whom he would love nothing more than to blow apart baseball's draft system, allowing Strasburg to be compensated in line with his talent -- his asking price is believed to be around $50 million -- as opposed to within the parameters of the current system, in which no player has ever received more than $10.5 million.
Even before talks began with the Washington Nationals, who made Strasburg the first overall pick June 9, Boras was dropping hints privately that he is preparing to explore a new frontier in his ongoing draft-busting crusade: Japan.
Such a ploy, were Boras to go in that direction, could involve a variety of issues, from the complex relationship between Major League Baseball and Japan's Nippon Professional Baseball, the residency requirements of both countries and, of course, the Major League Rules.
"If a [contract agreement] does not happen," Boras said during a conference call with reporters following the draft, "obviously you then look to all the available resources that one would have to evaluate what the next step is, whether it's to re-enter the draft, or alternative choices."
On the surface, baseball's rules are simple: If a player doesn't sign by Aug. 17 with the team that drafts him -- no matter what "alternative" he chooses -- he goes back into the draft the following year and the team gets a roughly equivalent compensation pick.
"Our view is simple: Until [Strasburg] signs a professional contract within our system, he is eligible for our draft and remains subject to our draft," said Rob Manfred, MLB's executive vice president for labor relations. "He can play wherever he wants. But if he doesn't sign with Washington, he goes back into the draft, and if he doesn't sign with that team [in 2010], he goes back in again."
In reality, though, it is not that simple.
According to Major League Rule 4(a), draft eligibility is limited to players who are "resident[s] of the United States or Canada and who [have] not previously contracted with a Major League or minor league club." Under Rule 3, which governs contracts, a player is considered a resident of the United States if he "enrolls in a United States high school or college or establishes a legal residence in the U.S. on the date of the player's contract or within one year prior to that date."
However, there is enough gray area within the issue of "residency" -- a notion Boras first explored in Drew's case in 1997, threatening at one point to take him to Costa Rica to establish residency -- that baseball has seen fit to publish a handbook, distributed to scouting directors and other executives before each year's draft, that clarifies what residency means.
It is determined by "looking at factors such as length of stay at the current address, where the player intends to live long-term, where he has lived previously, where he obtained his passport and his place of birth," Manfred said. "These factors are intended to weed out . . . shams."
According to Stanley M. Brand, a Washington-based lawyer who serves as vice president of Minor League Baseball and who acted as counsel to MLB during the congressional hearings on steroid use, these interpretations are similar to the way residency is determined under tax law.
"It's an important concept under the law," Brand said. Strasburg, he said, "wasn't born [in Japan]. He hasn't voted there. He doesn't own property there. [A claim of residency] looks like what it is: a ruse to get around the draft."
However, according to William B. Gould IV, a Stanford law professor and former chairman of the National Labor Relations Board, if the handbook isn't distributed to the agents or players -- and an MLB spokesman said it is not -- Boras could claim "it isn't binding or relevant to the [residency] rule."
At the heart of the matter is the draft itself, which Boras sees as patently unfair in that it does not cover international players, who are considered free agents, and suppresses the incomes of American players, in his words, to "20 cents on the dollar." Boras has frequently equated Strasburg with premium, major league-ready international players who have signed lucrative big league deals, such as Japanese pitcher Daisuke Matsuzaka ($52 million) and Cuban pitcher José Contreras ($32 million), and should be paid accordingly.
In 1997, the premium talent was widely considered to be Drew. That year, the draft was still called the "amateur" draft, and its eligibility rules applied only to players who had never signed a contract with a major or minor league team. When Drew's negotiations reached an impasse -- the Phillies were offering about one-fifth of Drew's $11 million asking price -- Boras advised him to sign with the independent St. Paul Saints. Boras then declared that Drew, by rule, would become a free agent a week before the 1998 draft.
MLB revised the rule, renaming the draft the "first-year player draft" and stating that independent league players were still subject to the draft. With baseball's union joining the fight -- angered by MLB's attempt at implementing unilaterally a workplace rule change that it believed had to be bargained -- the issue went before an arbitrator.
Although the arbitrator, Dana Eischen, upheld the union's grievance, he ruled that because Drew was not a union member, the decision did not apply to him, and Drew remained subject to the draft. He re-entered the draft in 1998 and was picked by the St. Louis Cardinals, with whom he signed for a guaranteed $7 million.
Players still follow the Drew path of signing with independent league teams -- pitcher Aaron Crow, drafted by the Nationals with the ninth overall pick, did it last year -- as a way to buy time in hopes of gaining better draft position the following year. But with Strasburg, Boras has hinted to friends of attempting something "unique."
If the unique plan involves Japan, it might get messy.
A player signing with NPB would be subject to its "reserve" system, which binds a player to his team for nine years, although exceptions can be made. According to Itaru Kobayashi, a Columbia Business School graduate and former NPB player who is now marketing director for the league's SoftBank Hawks, the bigger issue would be cultural.
"This will do more harm than good to the NPB club. [Strasburg] will not be welcomed, neither by the teammates or the media," Kobayashi said. "It is not easy to sympathize with a guy who comes to Japan just as [part of] a negotiation process to squeeze more millions out of [an MLB] club."
According to Kobayashi, NPB officials are still perturbed about the Boston Red Sox' signing last winter of amateur pitcher Junichi Tazawa, violating what is seen as a "gentlemen's agreement" between the leagues that neither would pluck away the best amateur talent from the other.
"We would not do what we do not want others to do to us," Kobayashi said, "unless we really have to do so."
Boras is also looked upon unfavorably in at least some parts of Japan over his handling of Matsuzaka's messy jump from the NPB's Seibu Lions to the Red Sox in December 2006.
Boras "is generally regarded as greedy and egotistical," said Robert Whiting, an American who has authored seven books on Japanese baseball, "and many people here are [fed] up and angered by his remarks that he is intending to use Japan just as a tool to intimidate MLB and get more money for his client. It shows a lack of respect for the country."
Whiting mentioned an additional option for Boras and Strasburg that would avoid the acrimony from the NPB: industrial-league professional baseball, called "Shakai Yakyu." According to Whiting, there is "not an inconsiderable amount of interest in these leagues," and the annual tournament is a well-attended affair at the Tokyo Dome.
"Strikes me as a variation of the J.D. Drew-St. Paul adventure," Whiting said.
Even if Boras were to succeed in getting Strasburg a job in Japan, getting him to the promised land of free agency likely would require a challenge to baseball's residency rules. And because Strasburg is not a member of the union, it is a fight that would occur in court, as opposed to arbitration.
"I wouldn't be shocked if that's the route," said one baseball executive who has butted heads with Boras in the past. "The one place where he might stand a chance is in antitrust law."
Ultimately, though, Boras's undoing could come from the very document he is hoping will guide him to a big payday: the Major League Rules. Rule 4, which governs the draft, ends with subsection (k), which says this:
"Official interpretations of this Rule 4 may be made from time to time by the Commissioner or the Commissioner's designee."
Staff writer Chico Harlan contributed to this report.