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Arturo J. Marcano and David P. Fidler
In July 2012, a documentary entitled Ballplayer: Pelotero (“Pelotero”) focused new attention on how Major League Baseball (“MLB”) teams recruit players in the Dominican Republic. The film caused controversy because of its critical portrayal of the MLB system. This controversy connects to long-running debates about MLB’s behavior in Latin American countries—a debate that includes concerns that MLB’s operations in these countries adversely affect the human rights of children. This Insight describes Pelotero, locates it within the relationship between MLB’s Latin American activities and human rights norms, and analyzes MLB’s latest efforts at reforming its Latin American operations.
Ballplayer: Pelotero—The New DocumentaryPelotero tells the stories of two sixteen-year old Dominican players, Miguel Angel Sanó and Jean Carlos Batista, both of whom were determined to escape poverty through baseball. As the film notes early on, the Dominican Republic is the most important foreign source of talent for MLB, supplying twenty percent of all minor and major league players. The film focuses on events from March-October 2009. The film begins with MLB teams identifying Sanó and Batista as top prospects, meaning they might command significant signing bonuses. Unlike amateur players in the United States, Canada, and Puerto Rico, who are subject to the amateur draft, prospects in Latin America are free agents who can sign with the team that offers the most money. The film portrays Sanó as one of the two best sixteen-year old prospects, with the potential to receive a record-breaking signing bonus of $5,000,000 or $6,000,000.
However, things fall apart for both players. Allegations emerge that Sanó was lying about his identity and age, triggering an investigation by the MLB and an agonizing process that delays his signing for months and significantly reduces his signing bonus. Sanó, his family, and agent believe the allegations reflect collusion between a scout for a MLB team, who wanted to sign Sanó for less money, and an MLB officials in the Dominican Republic, who wanted to limit signing-bonus escalation for top Dominican prospects. Batista rejects the first offer he receives but then is suspended for a year by the MLB for lying about his age. Batista eventually signed for a much-reduced bonus after the suspension expired.
Through these stories, the filmmakers expose a system rife with abuses. In the Wall Street Journal, Joe Morgenstern observed that the film “depicts a recruitment process that . . . [is] all about the dehumanizing power of money, and growing kids into superstars at bargain-basement prices[.]” Neil Genzlinger of the New York Times stated that it “shows a shady business in which scouts and the teams they represent try to manipulate teenage players, and to some extent the players do some manipulating of their own.” Kenneth Turan wrote in the Los Angeles Times that it is “a damning film” that exposes “a flawed, potentially exploitative system and how it is being gamed from all sides of the table—the story of the collision of youthful dreams and a cutthroat adult cartel.”
MLB criticized the film, asserting that it is inaccurate, contains misrepresentations, and does not reflect changes MLB made in the Dominican Republic after the events depicted. In the film, the filmmakers note that no one at MLB agreed to be interviewed for it, while acknowledging that MLB is changing how MLB teams recruit and sign Dominican prospects. In response to MLB’s accusation of inaccuracy, the filmmakers observe that MLB did not specifically identify any particular inaccuracy in the film.
Buying and Selling Children: Pelotero and Controversies Concerning MLB’s Operations in Latin America
Pelotero highlights themes that have caused controversies concerning MLB’s activities in Latin America for over a decade—the system targets children living in poverty and fosters abuses by those involved in it. Pelotero illustrates how MLB emphasizes signing sixteen-year old players, stimulating efforts to begin developing prospects at even younger ages. The film estimates that over 100,000 boys train full time in baseball facilities across the Dominican Republic for the chance to sign a MLB contract. The trainers, or buscones, for Sanó and Batista acknowledge that the system involves buying and selling children as commodities, echoing earlier critiques about MLB’s targeting of children. By contrast, amateur players in the United States, Canada, and Puerto Rico are not eligible for the MLB draft until they complete high school, typically at age eighteen.
International human rights law recognizes that people under eighteen are children who require heightened care and protection, especially children living in poverty, who are more vulnerable to economic exploitation. From a human rights perspective, the Dominican government and MLB are responsible for adequately regulating commercial activities that focus on children. The Dominican Republic is party to the Convention on the Rights of the Child, recognizes eighteen as the age of majority and has obligations to protect children from potentially exploitative and abusive behavior by non-state actors operating in its territory. As the governance body of a transnational, multibillion dollar business, MLB has human rights responsibilities, including demonstrating awareness of human rights issues connected with the location of its operations (e.g., developing countries), understanding how its business activities might raise human rights concerns (e.g., targeting children as sources of labor), and taking responsibility to prevent and protect against human rights problems connected with such activities.
Pelotero reveals neither the Dominican government nor MLB fulfilling their human rights duties. In the film, Sanó and his family meet with the head of the Dominican Baseball Commission, a government agency, about the problems they are experiencing with the MLB investigation. The Commissioner tells them that MLB is “a monopoly” that “govern[s] the business, and make[s] the rules of the game” and that he can only provide advice —a surprising statement for a government official to make about commercial activities affecting an estimated 100,000 children. The Commissioner explains that “[p]eople take advantage of poverty here. . . . This is happening [to Sanó] because he’s poor.” This scene reinforces long-standing criticisms that the Dominican government has failed to regulate MLB’s activities adequately pursuant to its human rights obligations.
As for MLB, critics have argued for years that its system for recruiting, signing, and training young players in Latin American countries exploits and discriminates against children. When MLB teams began recruiting in Latin America, MLB had no rules regulating the process, contrasting with the structured and regulated process by which MLB teams scouted, signed, and trained minor league players from North America and (later) Puerto Rico.
In response to criticism and high-profile incidents of abuses, MLB began to apply some rules, starting in 1984 with the rule that established sixteen as the minimum signing age. In 2000, MLB opened an office in the Dominican Republic to provide better oversight of its Latin American operations. Later, MLB adopted rules and guidelines to ensure the provision of Spanish-language versions of contracts and adequate living and playing conditions.
However, Latin America’s importance as a source of talent continued to grow, causing increased signing bonuses for top prospects. In this environment, MLB struggled with new problems, such as abuse of performance-enhancing drugs, team abuse of tryouts to hide players from other clubs, age and identity fraud, corruption by team officials, and abuses by buscones. Pelotero touches upon rules adopted to address some of these problems, including drug testing and investigations into age and identity. However, MLB’s reactive, ad hoc approach to addressing problems constitutes “aborted and timid efforts . . . to address the exploitation of young baseball talent.”
Ironically, MLB reached a similarly harsh judgment about its Dominican operations at the same time Pelotero was filmed. After yet more scandals, the MLB Commissioner appointed a committee in May 2009 chaired by Sandy Alderson to examine MLB’s Dominican operations and make recommendations for reform. The Alderson committee produced a report in September 2009—contemporaneously with events depicted in Pelotero—reflecting the depth of the problems and the need for comprehensive reform. As Alderson put it, “the system as it currently exists can’t continue;” it is time to “clean up the abuses” and put an end to “kids being manipulated and victimized.”
MLB Moves Toward Comprehensive Reform: From the Alderson Committee Report to the New Basic Agreement
The Alderson Committee Report
The Alderson committee’s report was “an ambitious reform blueprint” indicating that MLB might be “poised to end its long history of exploiting Latin Americans[.]” The report identified problems depicted in Pelotero, including questionable investigations by MLB and corruption involving MLB team officials. The committee emphasized that MLB might need to institute an international draft to regulate how teams access Latin American talent.
Although the report was not a human rights assessment, it highlighted weaknesses in MLB’s governance of its Dominican operations and emphasized MLB’s responsibility to strengthen such governance through better rules, strategies, and investments in oversight capabilities. The behavior of the Dominican government, buscones, and prospects contributed to the problems, but the Alderson committee accepted that MLB bore heightened responsibility. As a MLB vice president put it, “we recognize our responsibility . . . and that we have to constantly reevaluate the way we do business to make sure we are not creating perverse incentives to engage in behavior we know is wrong.”
The New Basic Agreement
The deadline the Alderson committee set for its reforms—July 2, 2010—passed without implementation. Alderson’s departure to become General Manager of the New York Mets in October 2010 raised questions about future reform of MLB’s Latin American operations. However, even more radical reform appeared in the 2012-2016 Basic Agreement finalized at the end of 2011 in collective bargaining between MLB and the Major League Baseball Players Association (“MLBPA”).
The Basic Agreement creates a draft-like process—called the “Signing Bonus Pool” mechanism”—to regulate signing international amateur players, the vast majority of which come from Latin America. Although MLB and MLBPA continue to discuss a formal international draft, the Basic Agreement functions like a draft in limiting signing bonuses and increasing competitive balance by giving teams with losing records in the prior season more opportunities to attract the best international prospects.
In addition, the Basic Agreement created an International Talent Committee tasked with negotiating whether MLB adopts an international draft and addressing problems related to MLB’s Latin American operations. For example, the International Talent Committee will discuss the minimum age for teams to sign international amateurs—indicating potential willingness to depart from the pervasive but much-criticized “younger is better” mentality, which Pelotero highlights. The Basic Agreement also established an Education Committee, tasked with assisting “international players who are not drafted, or are released prior to reaching the Major Leagues, with their transition to educational/vocational programs or the workforce.”
The first application of the “Signing Bonus Pool” mechanism to Latin American prospects occurred in July 2012, and, as of this writing, little is publicly known about how it functioned. In addition, the mechanism contains features that raise questions about whether it will change how MLB teams recruit and sign Latin American prospects. For example, the Basic Agreement allows teams to sign an unlimited number of international amateurs for bonuses of $7,500 or less in the 2012-2013/2013-2014 seasons and $10,000 or less in the 2014-2015/2015-2016 seasons. Thus, signing bonuses for most Latin American prospects are unlikely to exceed these exempted amounts during the life of the Basic Agreement. In other words, MLB has found another way to allow teams to sign many Latin American players cheaply. Pelotero’s focus on two top prospects did not illuminate problems the vast majority of Dominican prospects encounter, but, from a human rights perspective, these problems are equally important to address in reforms.Combined with the signing bonus limits for top prospects, the “Latin players on the cheap” strategy underscores that MLB’s primary interest is to lower costs for accessing Latin talent. In addition, the Basic Agreement does not address many problems the Alderson committee identified, other than to have the International Talent Committee discuss a limited number of them. Again, as of this writing, what the International Talent Committee has agreed, if anything, is not publicly known.
The changes in the Basic Agreement constitute the most radical reforms MLB has ever made to its operations in Latin America, and the International Talent Committee might supplement these reforms with more changes, including potentially imposing regulations on buscones, increasing the age of signing eligibility, and adopting an international draft. Assessing whether these reforms move MLB away from what Pelotero depicts and closer to fulfilling its human rights responsibilities requires more information than is presently available.In addition, MLB faces opposition in the Dominican Republic to these changes, especially the idea of an international draft. Those opposed include representatives of the Dominican government,which potentially puts the two entities with human rights responsibilities in this context directly at odds—not a scenario conducive to fulfilling these responsibilities under the increased scrutiny Pelotero has created.
About the Author:
Arturo J. Marcano is a Venezuelan lawyer and baseball columnist for ESPN Deportes.David P. Fidler is the James Louis Calamaras Professor of Law at the Indiana University Maurer School of Law. They have worked and written extensively on problems related to MLB’s activities in Latin America, including Stealing Lives: The Globalization of Baseball and the Tragic Story of Alexis Quiroz (Indiana University Press, 2002) and “Global Baseball: Latin America,” in The Cambridge Companion to Baseball (Cambridge University Press, 2011), at 171-184.