Bill is a partner at Kroger Gardis and Regas, serves as the general counsel for the U.S. Anti-Doping Agency and is an expert analysis contributor at Sports Law360
They played a major league baseball game on Tuesday night, July 14, 2015, in Cincinnati, and Pete Rose took the field to the raucous cheers of the hometown fans. . .
That lead sentence would not have been jarring for any 40, 50 or 60 something had we read it on any summer morning in our youth. Starting in 1963 when he was the National League Rookie of the Year, through three world championships, and a record 4,256 lifetime hits, #14 of the Cincinnati Reds became practically the embodiment of the North Star in the sports world of the 1960s, 70s, and 80s.
Preternaturally burning intensity
With preternaturally burning intensity, Rose forged his legacy the old fashioned way. As an E.F. Hutton commercial used to say, he “earned it.” Some were blessed with power or great speed, like my two favorite childhood heroes, Pete’s Cincinnati teammates, Johnny Bench and Joe Morgan. Rose, on the other hand, seemed to wring every ounce of performance from somewhat lesser skills, and, yet, by the end of his career eclipsed virtually all of his peers through dent of indefatigable effort.
Rose may have been only my third favorite player from those great Reds teams of the 70s, but it was from him that I learned life lessons. Not directly, of course. Rose played a hundred miles away from my small Indiana hometown. But the light of his performances still guided like a night star.
He was the object lesson that outshone the others. Other ballplayers had jaw dropping talent, Pete Rose exuded relentless energy and indomitable will. Our coaches told us to run like “Charlie Hustle,” who turned a walk into an exciting play by sprinting to first base. And for those of us who truly believed that lack of talent could be overcome through hard work and determination, every fence we crashed into, ball we dove for, and head first slide we attempted, was done with images of Pete Rose dancing in our heads.
Learning to bring hustle, hard work, energy and determination to every task is not a bad legacy for a childhood hero, and I think a lot of us owe that in some measure to Pete. If I ever got the chance, I would thank him for it.
Crime and punishment
Then came the crash. In the summer of 1989 Pete Rose signed an agreement with the commissioner of baseball banning him from the game. He had committed the unpardonable sin. Pete bet on baseball.
For all his efforts, for all the thrills, and all the life lessons learned by thousands who watched him play, Pete still had to go. He was not above the game.
Then it got worse. We learned that his personal failures ran deeper than most previously imagined. Pete had not just failed in his obligations to his sport but had failed in his commitments to his family. The government found fault too, charging him with a failure to report his full income, and Rose served five months in federal prison. For 26 years he has remained banned from baseball.
Perhaps Rose deserved every punishment he received, perhaps he deserves more, I don’t know. If our lives were all laid bare, maybe all of us would find we deserve more punishment than we have ever gotten. But I do know Pete Rose has been punished a lot.
There have been four commissioners of Major League Baseball since Pete Rose was banned from pro ball. New baseball commissioner Rob Manfred assumed leadership of the professional game this season. Rob Manfred is a good man, an honorable man and not without compassion. He lifted baseball’s ban on Rose for an evening so that Rose could join other legends of the game in Rose’s hometown of Cincinnati for the 86th major league baseball all-star game.
Manfred’s decision to grant Rose a reprieve for an evening was the right one. Now comes the tougher decision, whether to lift Rose’s lifetime ban for good.
The opinions on this topic are typically delivered with bombast. It is ironic that a player known for playing the game the right way has become the focus of such over-the-top angst. The passion of those who would like to see Pete back in the game appears matched only by the fervor of those convinced a pardon would undermine the sport.
As far as possible (and admittedly I am biased) I have sought to strip away the emotions, and put legal principles in play in evaluating the decision that the Commissioner must make. I went to some of the source documents, read the 225 page report of baseball’s investigator John Dowd and the agreement signed by Rose and then Commissioner Bart Giamatti in which Rose accepted lifetime ineligibility but preserved the right to apply for reinstatement. I plowed through Rose’s 322 page autobiography, My Prison Without Bars. Finally, I considered new research from ESPN adding additional evidence that Rose bet on baseball while an active ballplayer.
The commissioner of baseball has broad authority to act “in the best interests of the game.” The key factor which Commissioner Manfred must consider therefore is whether reinstating Rose is presently in the best interest of baseball.
Naturally, a consideration will be whether reinstating Rose constitutes a legal precedent, making it more difficult to enforce baseball’s prohibition against gambling. The Commissioner will also want to act in a manner that does not unduly depart from prior decisions.
Interestingly, in 1989 when he imposed discipline former Commissioner Giamatti did not exclude the possibility that reinstating Rose might someday be in the best interest of the game. The agreement resolving Rose’s lawsuit against baseball specifically preserved Rose’s right to apply for reinstatement.
The Giamatti Agreement contains provisions benefitting both sides. Baseball received Rose’s agreement to submit to the commissioner’s jurisdiction and accept placement on baseball’s ineligible list, and Rose agreed to dismiss his lawsuit and not sue baseball related to its investigation or any subsequent application by Rose for reinstatement.
Importantly as well, and sometimes forgotten, the Giamatti Agreement permanently took off the table future questions about whether Rose bet on baseball. The commissioner agreed to “not make any formal findings or determinations on any matter including without limitation the allegation that Peter Edward Rose bet on any Major League Baseball game.”
This provision permits Commissioner Manfred to avoid thorny questions recently raised again by the ESPN investigative piece citing new evidence that Rose bet on baseball as a player as well as a manager. The allegation that Rose bet on baseball as a player is, of course, not new. Investigator Dowd reached this conclusion in 1989. Yet, fueled by Rose’s own unwillingness to admit betting as a player, questions about the extent of what Rose did, and when, have persisted. Questions about Rose’s betting past are of undoubted historic interest. However, the Giamatti Agreement renders whether and when Rose bet on games irrelevant to consideration of a Rose application for reinstatement because it bars the Commissioner from making any determination on factual matters related to Rose’s discipline.
Nor did Rose procure the Giamatti Agreement through misrepresentation. The Agreement states, “Nothing in this agreement shall be deemed either an admission or a denial by Peter Edward Rose of the allegation that he bet on any Major League Baseball game.”
In the galaxy of recent articles about Rose’s possible reinstatement, the fact that the Giamatti Agreement permanently bars the legal door on consideration of Rose’s betting seems to have fallen into a black hole; it is never mentioned. Nevertheless, due to the Giamatti Agreement, questions such as whether Rose bet as a player, and the extent to which his betting harmed baseball, should be deemed legally irrelevant in considering Rose’s reinstatement application.
For some, Commissioner Giamatti’s 1989 decision to render off-limits future questions about Rose’s betting on baseball could be viewed as prescient. Questions about what Rose did and when he did it certainly have less relevance now, 26 years after he was first banned and suffered other punishment, a prison term and exclusion from a sure first ballot Hall of Fame selection.
Commissioner Giamatti may have realized that over time the full price for Rose’s transgressions would be paid and further consideration of Rose’s involvement in betting would needlessly complicate the reinstatement process. In any case, the Giamatti Agreement means Commissioner Manfred has a rationale for avoiding the virtually impossible, Sisyphean, task of weighing the impact of Rose’s betting on baseball, making it easier to reinstate Rose. The Giamatti Agreement also means that the Rose case is largely sui generis (no future case is likely to involve a settlement agreement making the disciplined player’s betting history not subject to further consideration), and Rose may therefore be reinstated without creating a precedent detrimental to future betting discipline cases.
In a prior article I contended that sports organizations imposing discipline should consider “perceptual deterrence,” i.e., the need to alter perceptions in order to deter wrong conduct. Perceptual deterrence also comes into play in reinstatement decisions. A key is what the rules say. If reinstatement were granted based on “sympathy” where the rules do not authorize reinstatement a charge of favoritism or unequal application of the rules could arise.
In Rose’s case, however, unequal application of the rules is not an issue. The Giamatti Agreement expressly authorizes a Rose reinstatement application. Also, current Major League Baseball Rule 15 provides that Commissioner Manfred, may “in his or her sole discretion and upon such terms and conditions as he or she may deem proper, reinstate any such person.”
Acting in the best interest of the game does not invariably mean doing the opposite of what the fans want. Consideration of the opinions of those who pay the freight only makes sense. Nor is valuing fan opinion inconsistent with deterrence goals. For years fans have made the case for Rose’s reinstatement. A 2004 ABC News poll had 74% of baseball fans in favor of ending the ban. Rose’s poll numbers remained high in an April 2015 Rasmussen Report poll finding 59% would like to see Rose reinstated. In a nation too frequently riven by the latest controversy du jour, the numbers in favor of bringing Pete back demonstrate impressive and enduring consensus.
Rule 15 offers another potentially useful tool. Reinstatement can be conditioned on probation or tailored to address any lingering concerns about Rose’s influence. For instance, Rose could be reinstated on conditions such as that he not serve as a manager, on field coach or in a front office.
The strongest argument against reinstatement has been the idea that a quick reinstatement would harm baseball by demonstrating less than robust commitment to eliminating the influence of gambling. Yet, the strength of this argument diminishes over time, becoming increasingly irrelevant as the time that Rose has been out of the game lengthens, thereby demonstrating both the seriousness of baseball’s resolve and the inability of Rose to influence the outcome of his case.
There are a number of reasons to think that deterrence may not be the determining factor in Commissioner Manfred’s decision. First, more than a quarter century of ineligibility is by any measure significant punishment. Second, current rules make reinstatement an option even for players who have bet on the game. Therefore, reinstating Rose would not change the deterrent value of the rules. Third, the Giamatti Agreement took questions about Rose’s betting off the table. Refusing to reinstate Rose based on the deterrent value of keeping him banned is arguably inconsistent with that Agreement. These factors may turn Commissioner Manfred’s focus from the detrimental impact of Rose’s transgressions on the game of baseball and towards the proportionality of Rose’s punishment.
“Proportionality” describes the commonsense notion that the punishment should fit the crime and is a cornerstone of perceptual deterrence theory because without proportionate and just sanctions athletes would consider the system under which they are accountable to be arbitrary and not worthy of respect.
Proportionality is embedded in most sport disciplinary systems. For instance, the length of doping suspensions under the World Anti-Doping Code depends on the severity of the conduct and the fault and culpability of the wrongdoer. Violators who come forward and admit their mistakes during the discipline phase of their case can be treated more leniently than those who admit responsibility only after their case is closed. Leniency is also available where an individual fully cooperates and provides substantial assistance to ongoing investigations.
In baseball proportionality considerations are entrusted exclusively to the Commissioner who will take into account the severity of Rose’s punishment and ordinarily would also consider the extent to which Rose cooperated with baseball’s investigation. The Giamatti Agreement recites that “Rose produced documents, gave handwriting exemplars and responded to questions under oath upon oral deposition” and formally concluded baseball’s investigation with an agreed acceptance of discipline. Consequently, Commissioner Manfred may resolve questions of cooperation in Rose’s favor.
Proportionality asks whether, taking all factors into account, Rose has paid the requisite price for betting on baseball. On one side of the scales rests the heavy weight of very real crimes that a quarter century ago called into account the integrity of the game. Yet, the question of whether 26 years later the impact of these crimes should still tip the balance is legitimate.
On the other side of the scales is the heavy price of 26 years of banishment. Also to be weighed in Rose’s favor is the enduring positive impact he continues to have simply because of the way he played the game, having competed so hard that his name became virtually synonymous with dedication, hustle and hard work.
For the 86th All-Star game Commissioner Manfred allowed Pete Rose back onto the field for one more shining moment. If the Commissioner focuses primarily on proportionality in reviewing Rose’s lifetime ban then, just maybe, last Tuesday night might not be the last time in Rose’s life that he takes to the field amid the raucous cheers of the hometown fans.
The Bock’s Score – Bill Bock is the General Counsel for the U.S. Anti-Doping Agency, click The Bock’s Score to read prior articles by Bill.