Pick Up the Pace in MLB; Sterling’s Response to NBA

 

pick up the pace

Tom Verducci>INSIDE BASEBALL

by Tom Verducci
www.sportsillustrated.cnn.com

Why pace of play has slowed to a crawl, and a dozen ways to fix it

Danny Espinosa takes more than 27 seconds between pitches, and that isn’t even the majors’ slowest time.

Do players and managers realize how much they have slowed the pace of action in a baseball game? That thought hit me like just another 97 mph fastball from just another fungible reliever as I watched one of the least appealing half innings in the history of the sport last week.

It happened in the top of the eighth inning in a game between the Los Angeles Dodgers and New York Mets at Citi Field. A half inning with no runs, no hits and just three balls put into play took 21 minutes, 44 seconds.

Chew on that some more: It took almost 22 minutes to play a scoreless, hitless half inning in which only three balls were put into play. (It took 4 hours, 9 minutes to play the whole game.)

The half inning was so tedious that it inspired me to take on a mission. Everybody complains about the pace of play in today’s game, what with all the strikeouts, pitching changes, mound conferences and so much time between pitches. But it occurred to me that the players and managers don’t even realize how much they have slowed the game in such a short period of time. So the Dodgers and Mets inspired me to define it for them.

Baseball clubs have adopted the term “actionable intelligence” from the military. It defines how analytical experts must distill all the big data available in the game today to useable, bite-sized chunks for the player. So here is my “actionable intelligence” for those wearing a major league uniform today:

In just 10 years you have added 29 minutes, 11 seconds of dead time per game while scoring 13.3 percent fewer runs.

Does that get your attention? It should, because you don’t need to go back to pre-cable, pre-DH days to measure the deceleration of pace of play. How the game is played has changed drastically in a short period of time. The two biggest causes have been:

1. The marked improvement in run prevention methodologies (detailed scouting information, defensive shifts, increased velocity, increased use of specialized bullpens, etc.).

2. The utter disregard players have for pace of play.

First, a necessary disclaimer: Baseball is more popular than ever. More people consume baseball in more ways than ever before, and player salaries, ticket sales and television rights fees reflect these flush financial times. The health of the business of the game is robust. The worry for the next commissioner, however, is that these customers are not engaged enough and not young enough. The task is to keep the game attractive to the casual and young fans while honoring the expectations of the core fan.

Adding 29 minutes of dead time and less action doesn’t help. Much is written about length of games, and indeed games are getting longer. According to baseball-reference.com, 27 of the 30 teams are averaging three hours or more to play a game. The average time overall is 3:08.

That’s not good, but length of game is a bigger problem with the media than it is with the fans. Complaints about games taking too long generally come from media people who’d rather be somewhere else than the ballpark.

The bigger problem is the pace of game. You can enjoy a game that takes 3:08 or longer if the pace of the action is good. But in 2014 the pace of the action never has been worse in baseball history.

Again, you need only go back 10 years to see how quickly the problem has escalated. The average time of game in 2004 was 2:48. But let’s focus on the more viewer-centric aspect: How often do we actually get to see some action? Let’s look at the raw data to compare:

2004

2014
Runs per game

9.62

8.34
Pitches per game

292.5

294.3
Balls in play

57.10

54.04
Pitches per ball in play

5.12

5.45
Minutes per ball in play

2:56.4

3:28.8

Pay close attention to that last line. In just 10 years the time in between balls in play has increased 18 percent. What does that mean in actual dead time? You have to wait an extra 32.4 seconds today to see a ball put into play than you did only 10 years ago. Multiply that extra time by the average of 54.04 balls in play per game, and that’s how you get the added 29 minutes, 11 seconds of down time over the course of an average game.

That’s why pace of game is a bigger priority than length of game. The Dodgers-Mets game may be an extreme example, but pick any game any night and you see players dawdling without umpires or baseball officials doing a darned thing about it.

The average time of the 15 Memorial Day games was 3 hours, 11 minutes.

On May 10 in a game between Baltimore and Houston, a seven-pitch at-bat between pitcher Ryan Webb of the Orioles and infielder Marwin Gonzalez of the Astros took five minutes, with most of the time wasted with Gonzalez walking out of the batter’s box and Webb stepping off the rubber and the mound.

On May 21, a “confrontation” between Cleveland pitcher Josh Outman and Detroit catcher Bryan Holaday took only five pitches but lasted almost three minutes. Here are my notes from that at-bat: “Holaday swings and misses. Holaday steps out and adjusts the Velcro on his batting gloves. Holaday swings and misses. Holaday steps out and adjusts the Velcro on his batting gloves. Ball low. Holaday steps out and adjusts the Velcro on his batting gloves. Outman steps off the rubber. Foul. Holaday steps out and adjusts the Velcro on his batting gloves. Groundout.”

Do players even care about all this wasted time? I asked one of the “slowest” hitters in baseball, Danny Espinosa of the Nationals. I spoke with Espinosa last week in Pittsburgh and told him he ranked second in baseball in taking the most time between pitches, 27.5 seconds, or just one-tenth of a second behind the worst offender, Troy Tulowitzki of the Rockies. Espinosa, after complaining how the game is being overrun by analytics, sounded surprised to hear the news, if only because he was surprised anybody tracks such information.

“How do you explain it?” I asked him.

“I wear contacts,” he said. “They dry out sometimes.”

I told him I could see the importance of making sure you actually could see a 95 mph fastball, but surely dry contacts would not account for a delay between every pitch.

“I like to take my time to prepare myself,” he said. “I want to make sure I am focused and not rushed.”

“Well, don’t the umpires ever say anything to you?”

“Yeah.”

He said it so matter-of-factly and just looked at me blankly as if to say, “So?”

I don’t blame Espinosa. Players’ behavior has changed because the umpires, the union and MLB have allowed it to change. For more than a hundred years players never needed all this time between pitches to “prepare,” but it has became the style of the day because it has gone unchecked.

When was the last time an umpire refused to grant the hitter a timeout? When was the last time anybody was fined for slow play? (Phillies pitcher Jonathan Papelbon was fined years ago for taking too much time, and last year Yankees pitcher Mariano Rivera was threatened with a fine if he didn’t pick up the pace.)

“You’re not going to stop it until you start fining them,” said one NL manager. “You hit them with a $5,000 fine and that gets their attention. I fine guys a hundred dollars if they’re not on the top step of the dugout for the national anthem. Believe me, that gets their attention. They hate forking over money. It’s embarrassing.”

The Dodgers have been warned by MLB about their slow play. They play the slowest games in the National League (3:22). Their roster is stocked with veteran players who take huge chunks of time between pitches on the mound and at the plate. The only MLB team with a slower average time is Tampa Bay (3:27), which is 11th in the league in runs scored but has catcher Jose Molina, who drags down games with his slow play and constant meetings with pitchers.

What can be done about pace of play? We already have rules in place, but they are grossly ignored. Rule 6.02 requires “The batter shall take his position in the batter’s box promptly” and is not supposed to leave the batter’s box except for specified reasons. Rule 8.04 requires pitchers to deliver a pitch with the bases empty “within 12 seconds after he receives the ball.”

MLB has been talking about pace of game issues for 20 years and done little about it. It’s time to actually implement solutions. Here are some suggestions; not all of them need to be adopted, but it’s time for action of some kind to excise some dead time from the game.

• Deputize the umpires to actually enforce the rules. MLB has to let them know they have their full backing when it comes to getting batters in the box and pitchers on the rubber.

• Keep the ball “live” as much as possible. If the pitcher has the ball and is ready to go, the umpire should not wait for the batter to dally. He should assume time is “in.” Batters should not dictate when time is in.

• Fine players for slow play and announce those infractions.

• Here’s one suggestion from Detroit pitcher Max Scherzer: “The pitcher cannot leave the dirt area of the mound between pitches except for after a foul ball.”

• And another one from Scherzer: “The batter cannot call timeout after the pitcher comes set on the rubber.”

• Install a 12-second pitch clock to enforce the 12-second rule.

• Give each team a limited number of timeouts to use over the course of the game. Baseball is the only sport that gives teams an unlimited number of timeouts. Catchers visiting the mound, pitching coaches stalling for time, infielders conferring with the pitcher . . . it’s gotten way out of hand. Whatever the number — say it’s 10 timeouts — you can divide them up any way you want. But no more stopping the game literally as many times as you want.

• Relief pitchers get two warmup pitches on the game mound, not eight. Imagine if when the backup quarterback comes into the game everybody stops and stands there to allow him to throw eight practice throws to his receivers on the field after he’s been warming up on the sideline for the previous 15 minutes. Absurd, right? That’s what baseball does. The average pitching change takes about three minutes (but that’s not including the typical stalling for time that precedes it). We need to limit warmup pitches because a) the bullpen mounds today, unlike years ago, are virtually identical to the game mound, and b) the number of pitching changes continues to rise. Pitching changes have increased 27 percent in the past 20 years and 78 percent in the past 30 years.

• Streamline the replay system. Get rid of the charade of managers walking slowly on the field, buddying up to the umpire and waiting for a signal from the dugout on whether to challenge or not. (By the way, this farce is not included in the “official time” MLB keeps on replay challenges.) If the manager leaves the dugout, a challenge declaration is assumed.

• Also, get rid of those 20th century wired headphones — you know, the ones that make Joe West look as if he’s digging him some Glenn Campbell. Nobody wants to see the crew chief take that long slow walk from second base to behind home plate to put on a headset. Join the 21st century: go wireless, including a wireless microphone on the crew chief to actually explain the call.

And if baseball actually adopts new protocols to pick up the pace and still they are not enough, the next step would be to consider rules changes, such as:

• Placing limits on pitching changes. Have you noticed all the position players this year who are pressed into service on the mound? That’s because every night managers burn through multiple relievers who face just a few batters. This nightly game of matchup relief pitching is effective — offense dries up even more in the last three innings — but it slows the game down further. Again, we’re talking about a huge change in recent years in how the game is played. The number of times a relief pitcher was used for just one or two batters jumped 31 percent from 1998 to 2012.

• Create an “illegal defense” rule. Shifts work. They are killing hitters who pull groundballs. It is harder to get a single today than at any time in the history of the game. Just as basketball defines illegal defenses and football defines illegal formations, baseball could diminish the effectiveness of offense-stifling shifts by limiting them, such as requiring two infielders on each side of second base.

Of course, any time you bring up the possibility of changes to the game people get nervous. The default position in baseball tends to be “How can we keep it the same?” not “How can we move it forward?” There is an underlying motive to preserve the quaint myth that baseball has been the same game for 150 years. It’s not true.

The irony is that baseball has changed radically just in the past 10 years with no rules changes or enforcements in place. It has grown like an untended garden, with weeds diminishing its beauty. Let’s clean it up before it gets worse.
Read More: http://sportsillustrated.cnn.com/mlb/news/20140527/pace-of-game/#ixzz32wbQsZRx

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donald sterling14b
Michael McCann>SPORTS LAW

www.sportsillustrated.cnn.com

 Analyzing Donald Sterling’s response to the NBA’s lifetime ban 
As reports circulate that Donald Sterling is actively trying to sell the Clippers before the NBA votes to oust him on June 3, Sterling has filed a passionate answer to the league. The response raises a number of legal and policy arguments.

The intended audience of Sterling’s answer to the NBA: Fellow owners

Before analyzing the arguments in Sterling’s answer, it is important to highlight the intended audience. Sterling is attempting to persuade at least eight fellow owners on the league’s Board of Governors to vote against forcing him to sell the Clippers. Unless at least 22 of the 29 other governors vote to make him sell, Sterling will keep the team, but remain subject to a lifetime suspension. Whether the answer sways potential judges and jurors, or triggers reconsideration by players, media and fans is of secondary interest. The wording, expressions and tone in the answer are crafted principally with Sterling’s fellow owners in mind. The owners are not strangers to Sterling. He is familiar with their views and attitudes, and the answer likely reflects his impressions.

As Robert Raiola, senior manager in the Sports & Entertainment Group of the accounting firm O’Connor Davies, LLP, discussed previously on SI.com, Sterling has strong incentives under capital gain tax law to hold onto the team. Sterling would have to pay approximately 33 percent in capital gain taxes on the difference between the price he paid for the team ($12.5 million) and its sale price. As discussed below, Sterling raises capital gain taxes as a rationale against the NBA charge. Then again, if reports are true that Sterling has attracted bids in excess of $2.5 billion for the Clippers, he might be willing to pay the taxes and pocket more than $1.5 billion in net profit.

McCANN: Why the NBA won’t allow Shelly Sterling to control the Clippers

Still, defeating the June vote would carry another benefit for Sterling: he could have a crucial say in picking the team’s next owner, as opposed to the NBA unilaterally selecting the owner. To be clear, Sterling cannot sell the team without the NBA’s approval, a process that normally lasts months and involves detailed background checks on any person in a group to buy an NBA team. Sterling, however, can force the NBA to consider a buyer he selects before June 3.

Sterling’s first argument: Substantive due process under California law bars NBA’s use of recording

The answer begins with perhaps Sterling’s best argument: the recording of his infamous, albeit private, remarks to V. Stiviano was likely unlawful under California law, and the NBA is attempting to throw him out based on the recording. If the NBA was suing Sterling in a court of law, the recording would likely be deemed inadmissible under rules of evidence. But, as Sterling wisely acknowledges, the NBA’s internal system of justice doesn’t follow courtroom rules of evidence. The NBA constitution makes this clear, and Sterling has agreed to follow that the league’s rules.

Sterling attempts to counter this argument by claiming that the NBA cannot contract around substantive due process protections under California law. One of those protections, Sterling argues, is the right to privacy, and Sterling cites several cases where the right is treated as paramount. Sterling therefore contends that even if the NBA can, as a matter of procedure, rely on evidence that would be inadmissible in court, the league can’t, as a matter of due process, violate his right to privacy.

Expect the NBA to counter with several arguments. First, Sterling’s answer does not cite a case where a privacy right was used to reverse the decision of a private association. While the absence of a clear precedent does not nullify Sterling’s claim, the NBA would argue it weakens Sterling’s contention. Second, the NBA would likely insist that California law does not apply. The NBA’s constitution repeatedly references New York law as the state law governing league matters. And unlike California, a two-party starte where both parties must consent to a recording, New York is a one-party state whereby it is lawful to record another person so long as one party consents. From that lens, the NBA can maintain the privacy right under California law does not apply.

Still, even if the NBA can show it has the legal right to expel Sterling, expect some NBA owners to have reservations about linking the ouster of a fellow owner to a private recording that is unlawful in the state where the recording took place. The NBA may ultimately need to rely on Sterling’s controversial comments to CNN’s Anderson Cooper as supplemental evidence.

McCANN: The potential legal fallout from Donald Sterling’s CNN interview

Sterling’s second argument: Article 13(d) does not justify his ouster

Article 13(d) of the NBA constitution enables the ouster of an owner for failing or refusing to fulfill “contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.” These obligations need not be found in the league’s constitution or bylaws. Other agreements, including the franchise agreement to buy a team and the joint venture agreement in which owners assent to league authority, also contain covenants. According to the NBA, Sterling agreed to refrain from unethical conduct and advocating positions contrary to those of the NBA.

In his answer, Sterling asserts that 13(d) was only intended to cover owners who were unable to meet financial obligations under contracts, not owners who cause the NBA embarrassment. The NBA would likely stress the wording of 13(d) contains no such limitation.

Sterling argues that even if 13(d) governs his remarks to Stiviano, he never supported a position in those remarks adverse to the NBA. He acknowledges his remarks were “terrible” but he insists they did not advocate a position. Instead, in Sterling’s view, his remarks merely reflected the height of a “lovers’ quarrel” that was illegally recorded and shared with TMZ.com. Sterling contends that Stiviano “baited” him into making his infamous remarks, and he cites Stiviano’s interview with Dr. Phil in which she said she loved the limelight as supporting evidence of her intent. Sterling also contends that his comments to Cooper were similarly not to advocate a position, but to answer questions about a private conversation.

The NBA is prepared for Sterling’s arguments on 13(d). The league will likely frame Sterling’s comments to Stiviano and Cooper as clearly advocating a viewpoint about African-Americans — who Sterling expressed he did not want attending Clippers games — that caused massive harm to the NBA. The league will stress that Sterling severely compromised league efforts to enhance diversity, nearly caused an unprecedented player boycott, motivated corporate sponsors to drop the Clippers and led to a stern rebuke by President Obama. The league will also surely maintain that regardless of whether Sterling was baited into making the offensive comments, he nonetheless said them and must held accountable.

Sterling’s third argument: No way to confirm material harm to the NBA

Sterling creatively cites his suspension as grounds that he should not be ousted. Sterling insists that because of his lifetime ban, he cannot visit the Clippers facilities and thus he can’t measure the financial harm that he has allegedly caused the NBA. For instance, Sterling stresses he’s unsure of how many season ticket holders have been lost due to his remarks, or how significantly merchandise sales were impacted. Without this data, Sterling maintains, he is unable to wage an adequate defense. Sterling also emphasizes that some of the NBA’s purported harm never actually occurred, with the threatened but never occurring player boycott being exhibit A.

In response, watch for the NBA to reveal some of the data that Sterling claims he has been denied. The league is also poised to frame some of the potential harm as actual harm. Even if the boycott was never carried out, the NBA can allege, damaged labor relations between players and owners. The NBA will also note that players continue to threaten a boycott if Sterling remains an owner. Sterling’s remarks also led to disruptions between the NBA and its sponsors.

Sterling’s fourth argument: He acted neither willfully nor disloyally

Sterling attacks secondary arguments the NBA uses to justify his ouster. Article 13(a), for instance, bars any willful violation of league documents. Sterling argues that he could not have willfully violated a league document through a private conversation he never intended be made public. Sterling also rebuts the NBA’s assertion that he provided false information to NBA investigator David Anders. Sterling stresses that he might have misremembered details about the recording when initially speaking with Anders and that he was under no obligation to admit to conduct that would lead to an ouster he deems unlawful.

Sterling also takes issue with the NBA’s insistence that he breached a fiduciary duty of loyalty to the league. In Sterling’s view, he could not have breached a duty “in Ms. Stiviano’s living room” since the duty concerns avoiding conduct that undermines league interests. A private conversation with Stiviano, according to this interpretation, is outside the scope of league purview.

McCANN: A legal primer to Donald Sterling vs. the NBA

The NBA will combat Sterling’s argument by pointing out that his “private” conversation became very public and quickly harmed the NBA. The league will also emphasize Sterling’s primetime interview with Cooper in which Sterling advocated controversial positions — including a vicious assault on Magic Johnson’s character that prompted Silver to apologize to Johnson — that breached the duty of loyalty.

Sterling’s fifth argument: The $2.5 million fine isexcessive

As first reported by SI.com, Sterling has refused to pay the NBA’s $2.5 million fine. In his answer, Sterling contends he actually has until June 13, 2014 — or later — to pay it. His reasoning is that the NBA notified him on May 14, 2014 that he was in default, and therefore he is owed 30 or more days to satisfy a default. Sterling does not cite a source for a 30-day window, although Article 13(c) specifies that an owner can be ousted if the owner takes more than 30 days to pay dues owed to the NBA. Sterling, who is reportedly worth close to $2 billion, also asserts the fine should be $1 million per the league’s constitution. This argument is important not because of its financial impact — to Sterling, the difference between $2.5 million and $1 million may not be of great significance — but to communicate to NBA owners that he is being unfairly treated.

Sterling’s sixth argument: The NBA is hypocritical and acting arbitrarily and capriciously

When the NBA announced its sanctions against Sterling, Dallas Mavericks owner Mark Cuban expressed concern about a “slippery slope.” Sterling appeals to that concern by listing 15 other incidents involving owners and players that triggered relatively modest NBA sanction or no sanction at all.

As a starting point, Sterling’s examples about players — such as when television cameras picked up Kobe Bryant screaming obscenities at a referee — may be persuasive to owners, but are not as legally significant. Players are primarily regulated by a separate legal document, the collective bargaining agreement between the NBA and the Players’ Association. Owners, in contrast, are regulated by the constitution and bylaws.

Sterling also points out that Magic owner Rich Devos. Devos donated $100,000 to the National Organization of Marriage, a group that advocates against marriage equality. Sterling finds it revealing that Devos was not punished by the NBA for making the donation despite LGBT groups advocating a boycott. Sterling also cites comparatively modest punishments — fines or short suspensions — issued against NBA owners for driving drunk, criticizing referees or revealing NBA secrets on Twitter.

Sterling’s central thesis is to argue that the NBA is acting arbitrarily in punishing him with the ultimate sanction — banishment and ouster — whereas other owners received slaps on the wrist or no punishment at all. Sterling wants NBA owners to believe that he is being treated unfairly and also that they too might face ouster in a post-Sterling world. Should Sterling sue, proving arbitrary conduct by the NBA would be crucial, as a court would likely review the NBA’s interpretation of its constitution under the so-called “arbitrary and capricious” standard. Under this standard, Sterling would have to prove that the NBA acted arbitrarily. This would also be relevant should Sterling seek an injunction to temporarily halt the NBA from ousting him, as he would have to establish, among other points, that he would have a substantial likelihood of success on the merits.

The league will remind owners that no owner can be ousted unless three-quarters agree, a high threshold. The league will also argue that Sterling’s conduct is unique given the consequential damage it caused the NBA. Along those lines, Sterling is being judged as much for the impact of his speech as the speech itself.

Sterling’s seventh argument: NBA owners have already decided to vote him out

Sterling cites several public statements by NBA owners suggesting or clearly indicating that they support Silver and will vote against Sterling. Sterling raises an important due process argument: how can he get a fair trial if the jurors — other NBA owners — have already made up their minds before the trial? The NBA will likely respond by noting that NBA owners are free to speak their mind and draw their own assessments at their own pace. NBA owners are not supposed to be jurors who have no familiarity with the facts before a trial; they are fellow owners always judging each other’s conduct.

Sterling’s eighth argument: Capital gain taxes will be enormous if he has to sell

Sterling might want to credit Robert Raiola for this argument. Raiola was the first to identify the tax issue last month. The NBA will surely argue that the tax implications of Sterling having to sell the team are not the league’s concern but rather an unavoidable byproduct of federal and state law.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

Read More: http://sportsillustrated.cnn.com/nba/news/20140528/donald-sterling-legal-strategy-nba-adam-silver/#ixzz333ivjVKR

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