the latin insider
By Arturo J. Marcano, International Legal Advisor, Venezuelan Baseball Players Association, and David P. Fidler, Professor of Law, Indiana University School of Law, authors of Stealing Lives: The Globalization of of Baseball and the Tragic Story of Alexis Quiroz
The recently concluded negotiations on a new collective bargaining agreement between the team owners and the players settled a number of outstanding issues concerning the economics of Major League Baseball. No agreement was, however, reached on one central aspect of the economics of baseball-the recruitment of foreign baseball talent, especially from countries in Latin America. Press reports of the negotiations indicate that the team owners and the Major League Baseball Players Association (MLBPA) have agreed to convene a committee to discuss the establishment and implementation of a worldwide draft.
Press reports about the substance of the discussions on the worldwide draft during the last round of collective bargaining negotiations are sketchy and do not provide interested observers with transparent information to assess this radical move toward a new system of bringing foreign baseball talent into Major League Baseball. The number of countries and individuals potentially affected by the establishment of a worldwide draft is significant, and it is incumbent upon both the Commissioner's Office and the MLBPA to create an inclusive, transparent deliberation process on the worldwide draft proposal.
The committee to be formed to address the worldwide draft proposal should include independent representatives from countries that will be most affected by the implementation of such a proposal, namely the Dominican Republic and Venezuela. We are very concerned that the Commissioner's Office and the MLBPA have agreed to move toward a worldwide draft without engaging in serious consultations with representatives from different constituencies in the Dominican Republic, Venezuela, and other potentially affected countries. Including independent representatives from significantly affected countries on the committee would be one strategy to improve the input on this process from the people potentially affected by this proposed dramatic change in the way MLB teams bring foreign baseball players into the minor and major leagues.
Substantively, we welcome the willingness of MLB teams and the MLBPA to discuss a radical change in the way the teams recruit foreign baseball talent. Without question, Latin American countries are the most important source of foreign baseball players for both the minor and major leagues. The exploitative and discriminatory manner in which MLB teams have recruited and trained Latin players is now well known in the wake of newspaper reporting, academic scholarship, and the behavior and admissions of the Commissioner's Office. The best interests of Major League Baseball require that the teams and the MLBPA work together to end the violations of the human rights of children and young men in Latin American countries.
The proposed worldwide draft offers one potential strategy to change radically an exploitative, discriminatory system into one in which Latin children and young men are treated with same respect, and under the same rules, as baseball prospects from North America. We believe that the establishment of a worldwide draft should be guided by five basic principles: democratization, centralization, harmonization, specialization, and implementation.
This principle connects to the procedural concern we raised above-the apparent lack of input from affected foreign constituencies in the worldwide draft proposal. As a global game, the governance for Major League Baseball must reflect the global reach and responsibilities of the game today. Neither the teams nor the MLBPA represent many different constituencies potentially affected by the implementation of a worldwide draft, and we believe that the process through which the substance and structure of the worldwide draft are determined should be democratized to include independent representatives from foreign countries, especially those most significantly affected.
Many different paths and strategies can be used to make the process more inclusive, transparent, and democratic. Such democratization of the process will strengthen the commitment of foreign stakeholders in the worldwide draft, giving it a solid foundation in local communities that will generate positive benefits for Major League Baseball's globalization. In addition, involving local representatives can help ensure that the new system operates with due respect for local systems of law, a respect many MLB teams have not exhibited in their activities in Latin American countries.
Apart from baseball recruiting in Latin America, Major League Baseball's recruitment of foreign talent is highly centralized in the amateur draft that covers Canada and Puerto Rico and the baseball agreements between the Commissioner's Office and foreign professional baseball leagues (e.g., the agreement between MLB and the Japanese professional league). Clearly, a worldwide draft would bring some centralization to Latin recruiting; but the extent of centralization depends on the structure, substance, and scope of the worldwide draft.
For example, officials in the Commissioner's Office have in past spoken favorably of an international draft that affects only a small number of Latin prospects, leaving the existing system of free agency and baseball academies essentially intact. The scope of a worldwide draft's centralizing effect on the structure and dynamics of Latin recruiting depends on not only the number of rounds in the draft but also the eligibility criteria, such as minimum age.
Equally important is whether vestiges of the current free agency/academy system will remain in place and, if so, how the regulation of this system will be centralized more strongly than in the past. Official MLB rules on recruiting and training Latin children and young men are virtually non-existent apart from the much-violated 17-year old rule, demonstrating that teams and the Commissioner's Office have intentionally avoided centralized control of the Latin recruiting system for reasons that cannot be justified. No vestiges of a decentralized, unregulated system of recruiting Latin children and young men should remain whatever the structure, substance, and scope of the worldwide draft.
One of the most unacceptable features of the existing free agency/academy system of recruiting Latin talent is the lack of rules regulating the system and protecting children and young men from exploitation. MLB rules on the amateur draft and playing standards for minor league facilities provide protection for baseball prospects from North America and Puerto Rico, but MLB has created no similar web of rule-based protection for Latin children and young men. The construction of a worldwide draft must be guided by the principle of harmonization-all prospects should be accorded equal protection under a basic set of rules. The starting point for such harmonization, of course, is the existing protections accorded to players subject to the amateur draft.
The harmonization principle must also apply to standards established to regulate the quality of minor league playing facilities. The Dominican and Venezuelan Summer Leagues-a key part of the MLB minor league system-should be subject to the same quality standards for playing facilities as minor leagues located in North America. There is no justification for allowing MLB teams to expose Latin minor leaguers playing in the Dominican Republic or Venezuela to playing conditions not on par with what MLB rules require in North America.
Although harmonization should prevail in most contexts, we acknowledge that, in certain areas, special rules may need crafting to deal with the situation in Latin American countries. Most obviously is the need to have rules under which drafted players (and any players signed under free agency principles) in Latin America are provided with Spanish translations of all documents relating to their contractual relationship with a team. Prior to the summer of 2001, MLB teams and the Commissioner's Office did not think it necessary to provide contractual documents to Latin children and their parents in a language they could understand. Such behavior must be terminated through the adoption of rules that recognize the unique needs of these baseball prospects and their families.
Another context in which the specialization principle might be required involves the regulation of scouts and buscones in Latin American countries. The establishment of a worldwide draft will have an impact on the way scouts and buscones operate in Latin America, but the historical behavior of these elements of the free agency/academy system suggests that special rules may need to be developed to prevent the continuation of abuses.
The last guiding principle should be implementation-the determined application and enforcement of the rules regulating the recruitment and training of foreign baseball players. Crafting a worldwide draft and its attendant rules is only the beginning. Unless the rules are effectively implemented by MLB teams and the Commissioner's Office, they lose their protective force and value. The history of the massive violation of the 17-year old rule by MLB teams and the weak enforcement of this rule by the Commissioner's Office serve as warnings for the failure to think through carefully the implementation of the rule-regime establishing a worldwide draft.
Adhering to the principles of centralization and harmonization will aid implementation by creating centralized enforcement authority and a harmonized set of rules applicable to all players subject to the draft and/or contractual relations with MLB teams. The history of the 17-year old rule suggests, however, that, even where centralized enforcement of a rule is contemplated, implementation requires the willingness to compel obedience with important rules. This willingness has not been apparent in the past behavior of either teams or the Commissioner's Office.
The MLBPA could play a significant role in making sure the principle of implementation is robust. In the past, the MLBPA's position on Latin minor league recruits is that such recruits, and their treatment by MLB teams, did not fall within its jurisdiction as the bargaining representative for major league players. This position, whether or not technically correct, deprived Latin children and young men of the political influence of a labor union representing the interests of professional baseball players. The MLBPA's active pursuit of a worldwide draft, including its interesting proposals to eliminate the baseball academies in favor of a centralized training system, indicates that the MLBPA will now play a more active role in monitoring the implementation of MLB rules in Latin America. We applaud and encourage this development.
In addition to MLBPA oversight, the committee constructing the worldwide draft proposal and its attendant rules should seriously consider involving non-governmental organizations in monitoring the implementation of the new system by teams and the Commissioner's Office. Neutral, independent third-party monitoring of the implementation of the rules would bring credibility and transparency to the new strategy for recruiting Latin prospects that the current free agency/academy system sorely lacks.
The teams, Commissioner's Office, and the MLBPA have a historic opportunity with the proposed worldwide draft to establish a system of recruiting and training Latin baseball prospects that recognizes, respects, and protects the rights and interests of Latin children and young men who dream of playing in The Show.