The Melky Cabrera Affair: When Fair Isn’t Fair

A useful tool, when the government decides that what you did should have been illegal.

Let me bring the non-baseball fans among you up to date, reminding you that while the immediate subject is baseball, the ethical implications of this story are far broader.

Melky Cabrera, until last season, was a standard issue major league outfielder of substantial but undistinguished abilities and accomplishments. Last season, playing with the frequent destination of such players, the Kansas City Royals, Cabrera suddenly and unexpectedly emerged as a star, surpassing all expectations and his previous levels of performance. The Royals traded him, like an over-priced stock, to the San Francisco Giants in the off-season, getting a package of players in exchange for one they probably thought was as valuable as he would ever be.

This season, however, he was even better.  Not only was he selected to the All-Star team for the first time, he was also on the way to leading the Giants to the play-offs and possibly a World Series appearance. Then, this week, a drug test came in positive for testosterone: steroids. By MLB’s rules, Cabrera was suspended from play for 50 games, effectively eliminating him from the Giants season and post season and, not incidentally, marking him as a cheat and an idiot.

And maybe a batting champion. When he was suspended, Cabrera was second in the National League in batting average, and had already amassed the necessary at bats to qualify for the championship (actually, there are some complications with that, but for all intents and purposes, that’s true). He’s only 13 points behind the leader, and averages tend to come down as the season drags on. Not only is Cabrera’s high average a likely product of pharmaceutically-aided cheating, but his suspension for getting caught at cheating may actually help him win the prestigious batting crown, by freezing his average at a lofty .346. Is this fair? Certainly not.

Various pundits and sportswriters are now suggesting that Cabrera should be ineligible to win the championship, for obvious reasons. One writes, “There’s no sane thought process in which he would be allowed to claim a batting crown.”

Sure there is. The sane though process is called due process, and it is essential to a just civilization and the rule of law.

There is a very good reason why the Constitution bans ex post facto laws—laws that make something illegal retroactively, so someone can become a criminal for something they did that was legal when they did it. Allowing such rules is an invitation to an abuse of power, culminating, in the worst case scenario, with the modern day equivalents of the Russian or French Revolutions, where people are executed for “crimes” that were not crimes at all. Even cheaters have rights, and one of them is to know what their risks are when they cheat. Cabrera knew that he risked suspension, a loss of millions in income, and permanent harm to his reputation and career. He did not know that he risked not winning a batting championship if he qualified for it, or being put in the stocks, being exiled to Portugal, or having his children subjected to human medical experiments. Should a player suspended for performing enhancing drug use after testing positive be disqualified from winning a batting championship that season? That seems fair and reasonable, but because Major League Baseball didn’t think of it when they were making the rules, it would be unfair for Cabrera to be subjected to such a penalty, which would embody the inherently unfair principle of an ex post facto law.

Some people just can’t process this. People just shouldn’t get away with intentional bad conduct they say. So what if the rich guy was using a legitimate tax loophole? Take his money anyway. So what if no NCAA rule stated that a college football team’s past games could be forfeited and a coach’s record for victories could be erased after his death for conduct having no relationship to  what occurred on the field? Serves them right for protecting a child molester. Such people are unwittingly willing to dismember the bedrock principle of due process, which requires that we know by what rules and laws our conduct society will use to judge our conduct, and that we know what the penalties for violating them will be, or at least have a the opportunity to find these things out. No, of course it’s not fair for Melky Cabrera to win a batting championship by cheating, but a society that allows him to be penalized in ways he could not have anticipated using a rule imposed after the fact is an unfair society, and ethics is ultimately about building a more ethical society.

It gives up too much, is too toxic a concept for society and far too dangerous a precedent for the culture that it is part of, for Major League Baseball to stop Melky Cabrera’s cheating from making him the National League batting champion. It needs to pass a rule to stop the next cheater.

For now, let’s just hope that Pittsburgh’s Andrew McCutcheon, or the Reds’ Joey Votto hits .347.


Pointer: Craig Calcaterra


Graphic: Art Showtime

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at

8 thoughts on “The Melky Cabrera Affair: When Fair Isn’t Fair

  1. One small note:The NCAA rules did state “that a college football team’s past games could be forfeited and a coach’s record for victories could be erased […] for conduct having no relationship to what occurred on the field”.

    I don’t think the Sandusky mess fits into the existing rules (at least, not in a way that makes the rules unenforceably vague), but the general statement fails. Trading memorabilia for tattoos is enough to vacate wins.

    • To be fair, Tatgate was directly related to what happened on the field, in that football performance supplied both the market and much of the inventory itself.

    • Nope. For Lance and Pete, the rules and results for breaking them were clear, and previously applied to numerous athletes. For the saints, being suspended and fined for unsportsmanlike conduct was always on the table, and they were warned about their conduct.

      Now, if the Saint’s players records were expunged, you’d have a valid comparison.

  2. Concur. Thought the suspension was for failing a drug test on a specific date. Sports results on or after that date might be fair game for interpretation and adjustment if allowed to do so the rulebook, but turning things over before then would pretty much be a guesstimate, and inherently not fair I hope someone else wins the batting title, too. But they need to win it, not be given it.

  3. Agree with whole post, except for this:

    So what if the rich guy was using a legitimate tax loophole? Take his money anyway.

    There’s nothing ex post facto about changing tax laws so that, starting from the moment the new law becomes active, some people owe more money than they did previously.

    If anyone has argued that we should have a law which retroactively changes tax laws — so that someone would have to refile tax returns from 2004 onward and pay more money for each year, for example — that would be ex post facto. But as far as I know, that has not been proposed.

  4. What people call “loopholes” are just provisions of law that the complainer cannot take advantage of. In tax law, one man’s loophole is another’s deduction. To renters, the ability to deduct interest on one’s personal residence is a “loophole”.

    If someone took a deduction they were not entitled to, or failed to claim income to be taxed, that is not a loophole, its cheating, the latter of the two actually a crime. (Unless you happen to be Secty of Treasury). Taking the banned compounds in baseball is cheating.
    Loophole “technology” has no place in this discussion.

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