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Monday, July 27, 2009

Baseball, punishment, and Pete Rose

Reports are coming out that MLB Commissioner Bud Selig is considering reinstating Pete Rose to baseball, during the twentieth anniversary of Rose's permanent ban from Major League Baseball for gambling on games involving the team he was managing. Reinstatement virtually ensures Rose's induction into the Hall of Fame, perhaps as early as next year. The only thing that had been keeping Rose out was Hall of Fame Rule 3E, which bars from election and induction any person on MLB's Permanently Ineligible List.

Two sort-of law-related queries after the jump.

First, I would like to hear what crim-law and punishment scholars think about this as a matter of punishment theory and practice. Rose accepted permanent ineligibility from the game as part of a settlement, likely to avoid a formal finding that he had bet on games in which his own team was involved (the evidence against him is pretty strong). He later admitted to that conduct which, under Major League Rule 21(d) carries an automatic punishment of permanent ineligibility ("shall be declared permanently ineligible"). But now it appears he is going to get back into the game (and probably the Hall) within his lifetime, although the 20 years he lost as a manager, executive, ambassador, etc., certainly are nothing to sneeze at. Is this the equivalent of a commuted sentence--he served his time, he has reformed himself, let him get on with his life? Or is this more like a pardon--a subsequent statement that Rose did nothing wrong? Are the goals and theories of punishment and of MLB furthered by this move, which ultimately gives Rose everything he wanted, if a few years late? And what do we do with the arguments (which always have seemed counter-intuitive to me) that if Rose had admitted to gambling in 1989 or any time within the past two decades, he already would (and should) have been reinstated.

Second, what about the Black Sox, the eight members of the Chicago White Sox, who were permanently banned for their various roles in taking money from gamblers to throw the 1919 World Series. Reinstating Rose would establish precedent that a permanent ban for gambling-related activity is not, in fact, a permanent ban. If Rose can be reinstated after twenty years, is there any argument against reinstating the Black Sox players after eighty?

After all, some of them were suspended for arguably less-serious infractions than Rose. Shoeless Joe Jackson (the one Black Sox player whose reinstatement likely carries with it a debate about the Hall of Fame) took money but did nothing to lose games; Buck Weaver took no money and was punished only for knowing about the fix and not informing team and league officials. Reprehensible conduct to be sure; but Selig seems to be in a forgiving mood. Moreover, without excusing the Black Sox, context matters. Baseball during the first twenty years of the last century was a few steps above professional wrestling--gambling, fixed games, and general cheating were pervasive, constantly discussed, and mostly ignored. Talk of fixed World Series games went all the way back to the first Series in 1903 and there was talk of fixes in both the 1917 and 1918 Series, as well as late-season shenanigans from 1917-19. The hiring of Kenesaw Mountain Landis as commissioner reflected a conscious move by the Major Leagues to shed that image as entertainment and become a true, on-the-level competition. By the time Rose came along, on the other hand, the rules and the history were well-established and could not have been clearer--gambling, especially gambling on games involving your team, was the ultimate baseball sin; it even was posted on the wall of every Major League Clubhouse. That knowledge arguably makes Rose's conduct more unforgivable.

Can there be any rational distinction drawn between the Sox players and Rose that would justify reinstating the latter and not some or all of the former? And is Selig aware of the box he is opening?

Posted by Howard Wasserman on July 27, 2009 at 04:31 PM in Culture, Current Affairs, Howard Wasserman, Sports | Permalink


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The consideration of Rose for reinstatement subsumes that his gambling activities in baseball were confined to his managerial career only. Reading the Dowd report and observing Rose for the last 20 years in his public comments, it is painfully clear he is a gambling addict. Common sense and social psychology suggest he was betting on baseball during his playing days as well. This matter has never been properly addressed by Rose or the baseball establishment. While not a betting man myself, the "over and under" on the likelihood that Rose bet on baseball during his playing days is astronomnical. If and only if it were properly investigated and categorically shown by some miracle Rose did not bet while playing would reinstatement be an appropriate consideration. Frankly, since the main argument for allowing Rose to be considered for the Hall are his accomplishments as a player, what is wrong with a "post humus" reinstatement. The "media pimps" who champion Rose's cause get their day in the sun and the public retains vindication the baseball establishment to some degree its integrity.

Posted by: alan robinson | Jul 28, 2009 6:39:05 PM

A study in Hypocrisy.

That all happened so long ago that I have forgotten important details.

What kind of drugs (excuse me, enhancements) did Rose use?

Posted by: Larry Sheldon | Jul 28, 2009 12:40:50 PM

My annoyance at Rose was more his continual failure to repent. It was this, not the 'crime' itself that bothered me the most.

If he acted differently, he very well might not have had to linger on so long. He only has himself to blame.

Posted by: Joe | Jul 28, 2009 10:41:12 AM

Hi Howard,

As a matter of baseball's "positive law", I'm sure you're right--there are probably substantive reasons to keep Rose out on a simple application of the rules. And I agree that there is logic to the overinclusiveness of the gambling ban that I did not consider.

My post was written from a much less formal perspective, and simply reflects my instincts about the wrongfulness of each player's conduct and the social meaning of HoF induction (and I was really only writing about that--did not take account of the entirely relevant distinction between induction and reinstatement).

I suppose my thought on the wrongfulness issue comes down to malum prohibitum and malum in se. I understand that Rose broke the rules, but his actual conduct doesn't seem so bad to me--a careless but not corrupt act (based on what I know, and I realize all the evidence is not out there). By contrast, Jackson's conduct strikes me as objectionable regardless of the rules at the time (and my understanding is that Kenesaw Mountain Landis more or less expelled the players through a broad exercise of discretion, so there was no specific rule-breaking alleged as in Rose's case), and so more foundationally objectionable.

As far as the social meaning of reintegrating either player back into baseball, I suppose this flows from my above point. Letting a guy into the hall who violated some regulations but didn't really betray the game or any public confidence or expectations (again, my take on Rose based on limited evidence) seems reasonable, especially after he's been ostracized for so long. (Not a question of rehab, really--I just don't think the underlying conduct is that wrongful.) But letting a guy into the hall who explicitly agreed to throw games and undermine the World Series--I don't think there's any rehab that can fix that.

Posted by: Dave | Jul 28, 2009 1:58:31 AM


Good points, all. Let me respond and push back on a couple of things.

1) Ironically, the relevant Major League Rule imposing the ban on Rose, 21(d), does not reach the Black Sox. Rule 21(d) only speaks to betting on games. The Sox were banned under a more best-interests-of-the-game provision

2) There is no evidence that Rose ever bet against the Reds. But that fact does not get us very far. The relevant rule does not draw a distinction between betting on and betting against your time; it is a blanket ban on betting on games involving your team. This is because betting on some games and not on others--even if you always bet on your team--still creates perverse incentives; if Rose did not bet on Tuesday's game but planned to bet on Wednesday's game, he he might manage differently on Tuesday (e.g., saving his closer) to give himself the best chance to win on Wednesday. In other words, why didn't Rose bet on the Tuesday game and how did that fact affect what he did on both Tuesday and Wednesday.

3) Relatedly, the gambling prohibition is necessarily overinclusive. Its underlying purpose seems to be not just ensuring that players are "making a good faith effort to ensure their success." The purposes seem broader. One is to ensure that players are making a good faith effort *for the right reasons,* for the sake of the competition and the success of the team as ends in themselves, rather than for special remuneration. A second purpose is to avoid a gateway problem--the move from gambling on one's own games to betting against one's team is presumed to be only a short step.

4) Let's separate the Hall from reinstatement because they truly are separate issues controlled by separate entities. If both Rose and Jackson were reinstated, the question of whether either, one or the other, or neither should receive the game's "highest honor" is a fair one that Hall voters eventually must get to. But let's focus just on reinstatement. If Rose is sufficiently rehabilitated that he should be allowed back into the game, then why not Jackson, Weaver, et al.? Dave's argument that Jackson's conduct was worse than Rose's still can be reflected that the ban on the Sox was four times as long as the ban on Rose.

Posted by: Howard Wasserman | Jul 27, 2009 10:32:04 PM

A couple possible distinctions:

1. The Black Sox agreed to throw the '20 Series, which seems to me far worse than just betting on the outcome of a game. Rose's bets may not have affected outcomes at all, for all we know, but the conduct of the Black Sox certainly did.

2. Do we know if Rose bet against his own team? That seems to make a big difference, because if he bet for his team to succeed, that seems entirely consistent with his making a good faith effort to ensure their success. The conduct of the Black Sox was plainly inconsistent with that expectation.

I think Shoeless Joe is a fascinating character from American history for lots of reasons, but I've never really shared the romanticism that surrounds him. He took dirty money from gamblers to fix the World Series, which is bad enough on its own terms. And the argument that he didn't throw any games is impossible to prove, but it's never convinced me. As Eliot Asinov explains in the classic account of the Black Sox scandal, Eight Men Out, Jackson's performance in the first few games of the series (which everyone agreed were fixed) was markedly poorer than in the later, non-fixed games, so even though he led all hitters and hit the series' only home run, his play seems entirely consistent with laying down.

And even if this weren't true, for him (and Weaver) to be aware of the fix and not tell anyone seems like a pretty cowardly deal. They were in a tricky position any way you slice it, but by failing to blow the whistle they aided the whole subterfuge.

Bottom line, I think it would be pretty perverse for baseball to bestow its highest honor on a player who admittedly conspired to defraud fans and the game itself. (I realize I'm in the minority on this.) As for Rose, I'm not as convinced based on what I've seen that his behavior was as dishonest, so I don't think admitting him would be as bad.

Posted by: Dave | Jul 27, 2009 10:05:40 PM

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