Baseball writers are the tools of baseball player agents, useful idiots who write on and on about the underpaid millionaire players and the unfair owners, who won’t pay them what they “deserve.” They scrupulously avoid educating readers about the unethical player agents who manipulate the system and the players for their own benefit, not their clients. I have written about the unregulated and largely ethics-free baseball agents before, but their conduct this off-season is unusually revolting.
At the top of the list, as usual, is mega-agent Scott Boras, who cleverly treads the line between being an agent and a lawyer—he is both—while having too many stars under his thumb for the sports organizations or bar associations to hold him to account. For example, as a lawyer, Boras would be absolutely bound to tell his clients about a settlement offer, and would be subject to disbarment if he rejected an offer without communicating it to his client (you know, like you regularly see lawyers doing on TV and in the movies). However, there are no player agent rules that require an agent to communicate a team’s salary offer to a player. Agents can, and presumably do, reject offers without their clients ever hearing about them. This, of course, avoids the problem of a baseball star saying, “Oh, hell, that’s more money than I could ever spend anyway. I know it’s less than we talked about, but go ahead and take it.”
Agents have conflicts of interest so grand, and apparently so little understood, that meaningful consent from the client, theoretically the remedy, is virtually impossible. Let’s look at Bryce Harper, Boras’s client who is seeking more than $300 million dollars over a ten year guaranteed contract. Harper is 26 years old and has already made 49 million dollars, not counting endorsements. The functional utility of each dollar he earns is less than the one earned before in his situation. Realistically, there is very little difference between a $250,000,000 contract and a $300,000,000 contract to Harper, except from an ego perspective. The extra 50,000,000 won’t make any difference to him. Boras, however, is a different matter. Let’s say his cut of Harper’s salary is 5%. He’ll get 15,000,000 if Harper signs for the high figure, but “only” 12,500,000 if Harper agrees to the lower figure. $2.5 million means nothing to Harper: he could throw it down the toilet, and wouldn’t feel a thing. The difference to Boras, however, is much greater in practical, and add to that the marketing advantage of being able to tell potential clients that he set the new all-time record for a free agent contract for his client.
“A lawyer can’t assist two clients bidding for the same contract, because the better job he does for one, the worse his other client fares. A lawyer can’t sue a defendant for every penny that defendant has on behalf of one client when he or she has another client or two that have grievances against that same defendant—if the lawyer is successful with the first client, he’s just ruined his other clients’ chances of recovery. There is some controversy over whether the legal ethics rules automatically apply to a lawyer-agent like Boras, but never mind—whether he is subject to the legal ethics rules or not when serving as an agent, the conflict of interest he is blithely ignoring still applies, still harms his clients, still puts money in his pockets, and still should not be permitted.”
This time, the Zero Sum Conflict is a little different. Boras represents the last two highest priced free-agents, Harper and Houston starter Dallas Keuchel. Keuchel turned down a 5 year, 90 million dollar contract in 2016, so it is assumed that it will cost more than $100,000,000 to sign him now. The problem is that there are very few teams with both the money, the need, and the salary flexibility as Spring Training is starting to commit to 9-figure salary additions. Some of those are the same teams Boras is talking to about Harper, and it is very likely that no team has the resources or desire to sign both. When, as is widely expected, Harper agrees to his mega-contract with Philadelphia nest week, Boras will have directly harmed his other client, Keuchel’s, financial interests. Has Boras received an informed waiver from Keuchel and other clients regarding Zero Sum Conflicts? I very much doubt it, and I also doubt that an informed consent would be truly informed if Boras was the one doing the explaining.
I guarantee, however, that if I were the one explaining the conflict, no waivers would get signed.
Player agents have no ethics codes that are enforced, and the regulation of the field is minimal. Someone, Major League Baseball perhaps, should prohibit agents from representing players with conflicting interests absent true consent after an objective explanation of the potential harm to their prospects by an objective, disinterested party