Sharp-eyed Ethics Alarms readers who pay attention to my baseball posts might recognize this one. It is like the most inexcusable lazy Hollywood franchise film, a sequel that is nearly identical to the original. I’m going to see how much of the post’s predecessor I can duplicate without having to change anything

Twelve 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  huddle with player agents in baseball’s off-season 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,  and last year, in 2022. There is no publication or website that has covered the issue as thoroughly as this one, and the unethical nature of the practice is irrefutable. But I might as well be shouting in outer space, where no one can hear you scream. The conflict of interest, which is throbbingly obvious and easy to address, sits stinking up the game.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. Lawyers 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 one of the worst I’ve seen yet. He represents both Blake Snell, a left-handed starting pitcher, a free agent, and Jordan Montgomery , another left-handed starting pitcher who shined in 2023. Each one is a high profile commodity: Snell, because he won the National League Cy Young award for the San Diego Padres, and Montgomery after a flashy run of good pitching performances in the 2023 play-offs and World Series,  Both are high on the shopping lists of team looking to enhance their starting pitching ranks, including the Boston Red Sox. Snell, as the pitcher with slightly better credentials, figures to get a better contract, estimated to ne in the range of $200 million for seven years, while Montgomery has been pegged as a likely $150 million for six year package—but he also may be the better deal. It is highly unlikely that any team is in the position to sign both. The second Boras negotiates a deal with a team for one of the pitchers, the competitors for the other has been reduced by one. Boras could argue, and I bet he does, that it “all comes out in the wash,” since one premium left signing makes the other more valuable. Maybe. In that case, each pitcher should want a separate agent who can play that game.

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 a paucity now of top rank free agent starting pitchers, after the Japaneses star Yoshinobu Yamamoto signed a monster contract with the Los Angeles Dodgers. A possible solution would be what lawyers call “limiting the scope of the representation.” That would require both Snell and Montgomery 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, Boras 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. He doesn’t want them to limit their markets

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.”

***

Well, there it is: the only substantive changes I made from last year was to substitute the names of the two pitchers for the names of two star shortstops I focused on in the 2022 version. Nothing else changed, because nothing has changed in baseball’s rules, the ethics governing lawyers, or the nature of conflicts of interest.

Incidentally, this isn’t plagiarism, so I’m still eligible to be the next president of Harvard. I’m acknowledging that I have used language and arguments from my previous work here; furthermore, I have provided written permission to myself to use any or all of the other posts, as long as there is proper attribution.

Post script: Among the tags WordPress’s AI bot suggests for this post is “Shohei Ohtani.” You will note that I don’t mention the Dodger’s new two-way star and this year’s AL MVP anywhere in the post.