The Ethics Incompleteness Dilemma and MLB’s Melky Cabrera “Solution”

Who cares what Melky wants?

[ When we last visited the messy Melky Cabrera situation, people were clamoring for baseball to rule Cabrera ineligible for the National League batting championship he seemed destined to win because the Giants outfielder had been suspended for the rest of the season for testing positive for steroids. The suspension froze his average, then as now leading the NL, and because he had already amassed sufficient at bats to qualify for the title, this meant that 1) he would benefit from what was supposed to be a punishment and 2) the most prestigious of all baseball season titles would be won by a proven cheater. I explained why taking the title away from Melky would be unethical as well as unwise:

“…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. …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.”

Bud Selig, the Commissioner of Baseball who is always as likely to make a terrible decision as a good one, said that he would not take any action on the matter. But that was not the end of the story…]

Yesterday, Major League Baseball announced that Melky Cabrera would not be eligible for the batting title after all. It seems that Cabrera himself had written to the MLB Players Union and requested that it work with Major League Baseball to allow him to withdraw himself from consideration in the NL batting race. This they did, with the result being that a “one time amendment” to Rule 10.22(a), which describes how a league determines its batting champion, was put on the books. This awful resolution illustrates a wrong response to an Ethics Incompleteness dilemma.

No rule or principle, ethics or otherwise, works all the time. There are always anomalies that occur in which a strict application of the rule or principle involved leads to an undesirable or bizarre result. This is why of all the ethical systems, Kant’s absolutism is the most tricky. Torture is absolutely unethical and immoral, and must never be resorted to under any circumstances. And yet….if the mad scientist who alone knows the location of the cheese bomb that will turn the Earth and every living thing on it into Neufchâtel in 24 hours can only be forced to reveal it if you waterboard him—well, you do it, then.

When faced with the consequences of ethics incompleteness, you have three choices:

1. Apply the rule anyway, and live with the result. This is the conservative approach, and if the anomalies are rare enough, it is often the best one. It makes no sense in the torture-cheese bomb scenario, however. It preserves the integrity of the rule, but nobody’s around to reap the benefits, having all been turned into cheese.

2. Re-conceive the rule to include a reasonable solution to the dilemma created by the anomaly. The problem with this approach: when it is done while the anomaly is still pending, it  violates due process, and when it involves an amendment after the fact, it often makes the rule or principle less valid, less enforceable and subject to more anomalies. This is the liberal approach to ethics incompleteness, and sometimes it is unavoidable. Other times, such as with the Dream Acts, it multiplies major problems while addressing smaller ones.

3. Just treat the anomaly as if there were no rule at all, making the most sensible decision, but not amending the rule or principle going forward. This is the favored approach of anarchists and supporters of ethical relativism. It is often the best and fairest response to an individual dilemma, but it is undisciplined and addictive, and rapidly turns into a bad habit that risks leaving all principles and rules vulnerable.

As you can see, any of the solutions may be appropriate in specific instances, or disastrous.  In the Cabrera dilemma, baseball opted for a cross between #2 and #3: they amended the rule, but just for Melky, and nobody else. Wrong. The right approach in this case was obviously #2, an amendment to the rule going forward alone, that would make players suspended for positive drug tests in the future ineligible for individual championships and awards for that season. Taking Cabrera out of the race using a “one time amendment” didn’t really limit such an improvised solution to this one time. It creates a precedent…several, actually, all of them bad:

  • It creates the precedent of “one time amendments” any time a baseball rule has an undesirable result. That means that no baseball rule can be relied upon, ever.
  • It creates the precedent of allowing a player to reject an achievement he has reached under the rules. The foolishness of this was pointed up by  Craig Calcaterra, a sportswriter-lawyer who excels in mixing humor with illumination, who wrote, “Quick: Adam Dunn! [The strikeout-prone White Sox outfielder] Call the league and ask to be taken out of consideration for the strikeout title!  So another Cabrera, the Tigers’ Miguel, could theoretically reject his looming AL Triple Crown chase, telling the union that he was always a Carl Yastrzemski fan and doesn’t want to take away Yaz’s distinction of winning the last Triple Crown in Major League history (in 1967.) “Just give the rbi title to the next guy in line,” he tells the union. “I’ll take batting and hone runs; no need to be greedy.”
  • No, you say? You wouldn’t allow that, you say? Then tell me this: why should the wishes of a drug cheat be respected while those of an honest player with selfless motives be rejected? Melky Cabrera is the last person who should be able to dictate the resolution of a dilemma he caused himself. He not only cheated, but crafted an audacious cover-up scheme once he was caught. This is an obvious PR move by Melky, so his batting championship doesn’t haunt him for all time as a tainted achievement in baseball’s record books, making him among the most visible of baseball’s dishonest steroid users and an infamous villain in the sport for the rest of his playing career and beyond.

You say those players who finish behind Cabrera in his steroid season will be bitter and angry? Good! Maybe then we will have seen the last of the players union obstructing strict drug testing. You say having Melky win a tainted championship embarrasses baseball? Good! Baseball deserves to be embarrassed for allowing steroid use to become as imbedded in the game as it was when everyone was ignoring mutated players and inflated home run totals.

The current rule is inadequate, you say? I agree. Fix it. Fix it for the next time. Melky Cabrera should win the batting championship under the 2012 rule that gives him that distinction. And he should have no say in the matter.


Facts: NBC Sports

Graphic: CBS Sports

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


14 thoughts on “The Ethics Incompleteness Dilemma and MLB’s Melky Cabrera “Solution”

      • Therefore he gets away with the rule breaking by keeping a batting title that was probably made possible by his drug use violation in the first place.


        Your objections to the perfectly legal and understandable amendment is absurd on the grounds that you have yet to point out if the rule suspension decision broke any rules or laws in the process

        As shown in the link:

        :“Melky Cabrera, through a written request to me, asked for the Union’s assistance in removing him from consideration for the 2012 National League batting title,” said MLBPA director Michael Weiner in a statement. “We complied with Melky’s wish and brought the matter to the Commissioner’s Office, which agreed to suspend the rule. We commend Melky’s decision under these circumstances.”

        “After giving this matter the consideration it deserves, I have decided that Major League Baseball will comply with Mr. Cabrera’s request,” said commissioner Bud Selig in a statement. “I respect his gesture as a sign of his regret and his desire to move forward, and I believe that, under these circumstances, the outcome is appropriate, particularly for Mr. Cabrera’s peers who are contending for the batting crown.”

        “I have no wish to win an award that would be tainted,” Cabrera said in a statement. “I believe it would be far better for someone more deserving to win. I asked the Players Association and the league to take the necessary steps to remove my name from consideration for the National League batting title.”

        “I am grateful that the Players Association and MLB were able to honor my request by suspending the rule for this season,” Cabrera continued. “I know that changing the rules mid-season can present problems, and I thank the Players Association and MLB for finding a way to get this done.””

        I fail to see the ethical damage either because a GUILTY player Melky himself wanted to EXCLUDE himself from winning a batting title that was probably made possible by the very drug he was banned over.

        This section below is purely hypothetical and not a credible comparison to the Melky situation because he was slapped for a serious rule violation unlike the imagined possibilities below that has absolutely nothing to go on.

        “Call the league and ask to be taken out of consideration for the strikeout title! So another Cabrera, the Tigers’ Miguel, could theoretically reject his looming AL Triple Crown chase, telling the union that he was always a Carl Yastrzemski fan and doesn’t want to take away Yaz’s distinction of winning the last Triple Crown in Major League history (in 1967.) “Just give the rbi title to the next guy in line,” he tells the union. “I’ll take batting and hone runs; no need to be greedy.””

        This is bad stuff and it should be obvious to you why.

        • Your comment discredits itself in the first few sentences.

          “Therefore he gets away with the rule breaking by keeping a batting title that was probably made possible by his drug use violation in the first place.”
          He didn’t get away with rule breaking. Melky got the same punishment as anyone else for breaking the rule he broke.

          As I explained clearly in both posts, the fact that the rule may have worked to the advantage of Cabrera in this case does not justify, excuse, or make rational altering mid event. You don’t comprehend—I don’t know why, but its your problem. Ignoring a rule because it doesn’t work in a given case is exactly the same as making up rules as you go along. Once you allow one, you risk opening the door for the other. In this case, ignoring the rule has the effect of invalidating actual events, hits and outs, that had an impact on games that still count, as well as the statistics of hundreds of other players. It is inconsistent and illogical. The hits counted, the batting average is valid, ergo, it must, under the rules in place now, count.
          Unjustified or supported ridicule is both obnoxious and unpersuasive, and won’t work here. Don’t do it again. Last warning.
          Your objections to the perfectly legal and understandable amendment is absurd on the grounds that you have yet to point out if the rule suspension decision broke any rules or laws in the process
          What?: Do you know what you wrote? Of course re-writing a rule after the fact and allowing a player to do what no other player has ever been allowed to do by ignoring a rule violates a rule—that’s what an ad hoc amendment does. Sure, MLB can make up or ignore any rule it chooses to, so it doesn’t technically violate a rule. That’s some argument you got there.

          Your ending sally is just as clueless. The point of the hypothetical is that MLB is allowing a player to refuse to “accept” a statistical distinction. That is absurd and before this unprecedented. Your retort is, “But this Cabrera did something really, really bad!” And since when did being really bad allow a player to pretend that what happened didn’t really happen, and have the union and MLB go along with his wishes? Never. Nor should it.

          “I have no wish to win an award that would be tainted.” Really! Then why did he cheat in the first place? Of course he wanted to win a tainted award; he just didn’t want anyone to know it was tainted. Well, tough. He tainted the prize, and he should have to live with it.

          You argument has nothing to do with ethics at all, but is a knee jerk response that ignores the importance of setting standards, testing them, and making changes as required, while not undermining them by ad hoc, after the fact, hasty fixes that set terrible and unpredictable precedents. You don’t get it—fine. I explained it clearly. It’s your problem.

    • Not the issue. An award, sure. A batting average is a fact. The player with the highest average is the one with the highest average. The player can’t change that. A presidential candidate who won the most votes could refuse to take office, but that would just make his VP President. He could not say “I didn’t win the election, give it to the guy with the second most votes.”

      • “A presidential candidate who won the most votes could refuse to take office, but that would just make his VP President.”

        I’m curious if there is legal authority or scholarship (obviously, there is no precedent at the presidential level) as to whether this is true. If such an event were to take place, the political and media circus would be insane – even if you are unquestionably correct, I have no question that it would turn into a partisan battle between those who argued that the VP-elect should take office, and those who argued that the opponent should win by default. There would also be a position that the entire election was invalidated. And those who wouldn’t switch their public position if the parties were reversed would be the minority.

        Off the top of my head, it seems like the most logical outcome, but I’m not sure where the VP-elect would get the authority to take office. The Constitution makes the VP the successor to the president while he’s in office, but I don’t think it covers the pre-inaugural period.

        • Oh, I’m sure you are right, and that it would end up in the Supreme Court. And whatever happened would be assailed as a partisan result. Still, one man’s rejection or demise shouldn’t invalidate a clear electoral choice. The likely result, the fair and democratic one, would be for the President to be the elected VP.

          • If the President elect dies, the VP elect becomes President. If the President elect ‘fails to qualify’, the VP elect acts as president until a president is qualified. Other situations are likely ambiguous — but I would say the intent is clear that the VP elect is the one who would take over.

            So the most clear cut situation would be where the President elect dies or takes the oath and resigns.

            This was done in 1932 — I don’t know offhand what the Congress envisioned when they used the phrase ‘failed to qualify’.

  1. The “resolution” – more like a treaty – worked out and articulated by Cabrera, the Union, and MLB and all their attorneys & consultants reads like a dark comedy. While I agree that ex-post facto laws or rulings are ill-advised, this one seems to be a finesse: they just dropped the amended section on plate appearances. (For those non-baseball fans, those contending hitters falling shy of the requisite number of plate appearances, are given an extra one (or more), counting as an out (or outs) – a worst case scenario. For the record (!), I don’t like this earlier alteration either.)

    This sets up a couple of interesting scenarios: 1) there will still be people out there who believe that Cabrera (regardless of what he says or third-parties agree) is the batting champion by the rules that existed at the time and 2) despite the disingenuous move, he could still win the title outright if there is a rain out and 161 games (and not 162) are used; and he would have the requisite number of plate appearances – it may be sunny in San Francisco, but other cities are problematic, and SF has clinched their division, why play a make-up game?

    These on-the-spot compromises are a slippery slope that often backfire. Cabrera won the All-Star MVP (just 5 weeks before his suspension) with 2 hits – one a 4th inning home run when the game was essentially over- in a PR move, that chose him over Ryan Braun, also with 2 hits and 5 total bases. But the previously tainted Braun certainly wasn’t a feel good selection at the time.

    I feel conflicted on this. While I tend to agree that an ex post facto agreement is wrong, and this one seems convenient, it also feels coerced, and looks like a back room deal. We should reject it outright. On the other hand, the original clause, going back to 1996, is also jury-rigged. Unlike other offensive baseball categories, where the increasing number of plate appearances increases the likelihood of success, the higher number trips to the batters box, stands to lower an average – regression to the mean becomes more likely. How many .400 hitters are there in July? 500 plate appearances (or 3.1 PAs per game) is the low end of the bar; if you can’t meet that overly generous rule, you are disqualified. A good hitting player, say the top 4 or five slots in the batting order, is just about guaranteed an average 5 trips to the plate. (The season average was over 700 for the first 4 batters and close to it for the 5th in both leagues in 2010.) That would get him to 500 after 100 games or roughly 60 percent of the season schedule. A true champion would clear this with ease.

    When they get to the winter meetings, they should increase the plate appearance upwards, to 550 or higher to prevent injury-prone or platooned players or fan favorites from grabbing this prize. For those with PED issues, MLB and the union need to formally agree in writing to throw out any record for those testing positive.

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