Eleven years ago, Ethics Alarms began a post about baseball agents in general and Scott Boras in particular engaging in a flaming conflict of interest that harmed their player clients this way…
Baseball’s super-agent Scott Boras has his annual off-season conflict of interest problem, and as usual, neither Major League Baseball, nor the Players’ Union, nor the legal profession, not his trusting but foolish clients seem to care. Nevertheless, he is operating under circumstances that make it impossible for him to be fair to his clients.
I could have written that paragraph today. Nothing has changed. Literally nothing: as baseball general managers get ready for the 2022 winter meetings where, among other things, they huddle with player agents and sign players to mind-blowing contracts, the unethical tolerance of players agents indulging in and profiting from a classic conflict of interest continues without protest or reform.
I may be the only one who cares about the issue. I first wrote about it here, on a baseball website. I carried on my campaign to Ethics Alarms, discussing the issue in 2010, 2011 (that’s where the linked quote above comes from), 2014, 2019, and in 2019 again, There is no publication or website that has covered the issue and thoroughly as this one, and the unethical nature of the practice is irrefutable. I might as well be shouting in outer space, where no one can hear you scream.Here is a brief summary of the problem: Boras and other agents represent multiple free agent players who are in direct competition with each other. If they help one client, they hurt another one by removing a possible source of a lucrative contract. Lawyer’s are not allowed to do this with their clients: it’s a prohibited conflict of interest. Player agents have no ethics codes that are enforced, and the regulation of the field is minimal. Boras, however, is a lawyer as well as an agent, in some states his activities as an agent constitute practicing law. In law, this particular conflict of interest is known as a Zero Sum conflict. The way out of it is an informed waiver by all clients, but there are two catches. One is the word “informed.” I believe very few non-lawyers are truly informed when they waive their attorney’s conflict of interest; most lawyers don’t understand conflicts very well. The other catch is that some conflicts can’t be waived ethically. The lawyer must reasonably believe that he or she (Are there nonbinary lawyers? I don’t care.…) will be capable of zealously representing both clients’ interests despite the conflict, with neither being harmed. That belief is not reasonable when there is what the District of Columbia Bar calls a “punch-pulling conflict.” The lawyer, being a human being (I’m extending the benefit of the doubt here) can’t avoid favoring one client over the other is some situations that might arise.
Scott Boras’s conflict this year is the worst I’ve seen yet. He represents both Carlos Correa, most recently of the Minnesota Twins and Xander Bogaerts, a long-time star of the Boston Red Sox. Each high profile, star free agent shortstops in their primes. Correa is 28, had a 5.4 WAR ( 5X better than a “replacement level” player at his position) last season, and in eight season has an average OPS (on-base average+slugging percentage) of .834. Bogaerts just turned 30, had a 5.8 WAR, and his average OPS over the length of his career is .814. Both are looking for salaries in the 300 million range, and there are only a limited number of teams that can pay that. No team needs two starting shortstops either.
I’m sure both have signed waivers, and I’m also sure they weren’t really informed about all the ways Boras’s conflict in their cases could hurt them. Complicating the problem is that there is an unprecedented glut of young, higher quality shortstops testing free agency this year: in addition to these two, there is also Trea Turner, younger and perhaps better than either, and Dansby Swanson, maybe a cut below the others. A possible solution would be what lawyers call “limiting the scope of the representation.” That would require Bogaerts and Correa to agree that their shared agent would peddle their services to mutually exclusive teams. I don’t believe either player would agree to that; it wouldn’t be in their interests. Moreover, Boas would be ethically obligated to make sure they were advised by their own attorneys before agreeing to such a limitation. he can’t advise them, because he has another conflict of interest, as an agent who stands to get a significant chunk of their massive contracts.
So once again, I am screaming in a vacuum. I’ll just close with the last futile statements in some of the previous posts:
- “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.”
- “If the player agents, who know they are conflicted, are so greedy that they continue to operate as if the conflicts don’t exist, the players unions, or the leagues, or the agents association, or the law, needs to stop them.”
- “Boras is being unethical to continue conflicted representations, and the union and the Major League Baseball are wrong to allow him to do it. By now, however, it’s a tradition.”