Can a Pitcher Successfully Sue Astros for Sign Stealing?

Former Blue Jays pitcher Mike Bolsinger is suing the Astros for ruining his career using their sign-stealing scheme in 2017.
By Michael McCann , |

The Houston Astros’ electronic sign-stealing scheme gave their batters a profound and unfair advantage during parts of the 2017 and 2018 seasons: They knew which pitches were coming. Last month, MLB commissioner Rob Manfred stripped the Astros of draft picks, issued suspensions and imposed a $5 million fine. Meanwhile, former Astros general manager Jeff Luhnow, manager AJ Hinch and bench coach Alex Cora were all fired from their jobs (Cora “parted ways” as manager of the Boston Red Sox) while Carlos Beltrán, who is accused of facilitating the cheating as an Astros player, lost the opportunity to manage the New York Mets. More recently, daily fantasy sports contestants have sued MLB, the Astros and Red Sox. They claim they wagered on stats that were warped through cheating and MLB’s failure to detect it.

We can add a new chapter to the sign-stealing scandal’s legal fallout: Former Toronto Blue Jays pitcher Mike Bolsinger is suing the Astros for ruining his major league career.

On Monday the 32-year-old right-hander filed a complaint in Los Angeles County Superior Court against Houston Astros LLC, the limited liability company led by billionaire Jim Crane. This LLC has other investors including, Bolsinger asserts, residents of Los Angeles.

Bolsinger, who pitched for Japan’s Chiba Lotte Marines over the last two seasons, demands a jury trial. He seeks an unspecified amount of monetary compensation from the Astros to reflect the Blue Jays' effectively firing him and his inability to secure another MLB contract. Bolsinger also requests restitution damages that he would control but not for his own benefit. He demands the Astros donate the $31 million in bonuses the club “earned” as a result of winning the 2017 World Series. Bolsinger wants that money directed to charities that focus on the betterment of children’s lives in Los Angeles and that assist elderly retired pro ballplayers who face financial turmoil.

Bolsinger is represented by attorney Ben Meiselas of the Los Angeles law firm Geragos & Geragos. Meiselas is an accomplished attorney in the U.S sports industry and is a dedicated advocate for players’ rights. He represents former San Francisco 49ers quarterback Colin Kaepernick, including with regard to Kaepernick’s now-resolved collusion grievance against the NFL, and pro hockey player Akim Aliu, who recently revealed that a coach directed racial epithets at him.

If successful, Bolsinger’s case could motivate other pitchers to sue the Astros. They might also sue the Red Sox, who are awaiting a decision by Manfred on allegations that they too engaged in electronic sign stealing.

A case that stems from a disastrous outing on the mound

Bolsinger is a journeyman pitcher who, after two seasons in the Nippon Professional Baseball Organization, is now a free agent. Between 2014 and 2017, the former University of Arkansas standout appeared in 48 games (41 starts) for the Arizona Diamondbacks, Los Angeles Dodgers and Blue Jays. Bolsinger provided depth to pitching staffs over the course of four seasons. During that time, he amassed a 4.93 ERA, with a combined record of 8-19 over 230.7 innings. His best season was in 2015 when finished with a 6–6 record and a 3.62 ERA in 21 starts for the Dodgers.

Bolsinger’s last stop in the big leagues didn’t go well. He appeared in 11 games (five starts) for the Blue Jays in 2017 and struggled with a 6.31 ERA over 41 1/3 innings. Bolsinger’s final appearance in the big leagues could only be described as appalling. It occurred on the evening of Friday, Aug. 4, when the Astros hosted the Blue Jays at Minute Maid Park. Astros batters routed Blue Jays pitchers, belting five home runs and recording 18 hits in a 16–7 win.

Bolsinger entered the game in the fourth inning in relief of Matt Dermody, who had relieved Blue Jays starter César Valdez. Bolsinger’s predecessors on the mound had pitched poorly but he would pitch even worse. In just one third of an inning, Bolsinger gave up four earned runs, including a home run to second baseman Marwin González. He also surrendered three more hits and three walks. Bolsinger threw 29 pitches, only 13 for strikes, to eight batters. His only recorded out was on a deep fly ball hit by shortstop Alex Bregman.

It was about as bad as a pitching performance can get.

After the game, Blue Jays manager John Gibbons informed Bolsinger that he was being demoted to the Buffalo Bisons in Triple A. Bolsinger pitched well there, accumulating a 1.70 ERA over 47 2/3 innings. However, after the season ended, Bolsinger failed to attract interest from MLB clubs. He believes his horrendous Aug. 4 outing was a “death knell” to his MLB career since it seemed he could no longer be trusted on a big league mound.

Bolsinger was a victim of cheating

We’ll never know how well Bolsinger would have fared against Astros batters if they hadn’t known which pitches he was about to throw. It’s safe to assume the results could have only been better.

With that in mind, Meiselas (Bolsinger’s attorney), reviewed evidence from the Aug. 4, 2017 game to better understand the scope of Astros’ cheating and how it impacted his client. As detailed by Tom Verducci and other Sports Illustrated writers, the Astros’ cheating plot involved several components. It began with the surreptitious placement of a camera in Minute Maid Park’s center field to secretly record signals given by opposing teams’ catchers. The camera then transmitted images to the Astros’ replay room. The signs were then decoded in the replay room and interpreted by a decoder. The scheme’s path then took a decidedly low-tech turn: A person outside the Astros dugout loudly banged on a trash can. This banging relayed the type of pitch about to be thrown.

For a pitcher like Bolsinger, deception of the batter is crucial. Bolsinger’s fastball sits in the upper 80s to low 90s. While “fast” in a general sense, his fastball won’t blow by MLB batters. He needs to trick hitters with an array of off-speed pitches that he tries to locate in and around the strike zone where batters wouldn’t expect. If batters know which kind of pitch Bolsinger is about to throw and where it is going, he essentially transforms into a batting practice pitcher.

According to Bolsinger’s complaint, the most “bangs” used by the Astros during the 2017 season took place on Aug. 4, 2017. There were bangs on 12 of Bolsinger’s 29 pitches, or roughly 40% of the balls he threw to his catcher, Russell Martin. Aided by a center field camera that zoomed into the fingers of Martin as he signaled to Bolsinger, Astros batters clearly had a good idea of what Bolsinger was about to throw.

Unpacking Bolsinger’s legal claims

Bolsinger makes a compelling argument that the Astros cheated him on Aug. 4, 2017 and that his terrible pitching played a major role in his demotion. Whether the cheating and subsequent demotion constitute illegal conduct hinges on the persuasiveness of the complaint.

Bolsinger raises five claims: unfair business practices; negligence; intentional interference with contractual relations; intentional interference with prospective economic relations; and negligent interference with prospective economic relations.

Taking the unfair business practices claim first, the California Business and Professions Code deems “unfair and fraudulent” business practices to be illegal acts. Bolsinger contends the Astros’ cheating was unquestionably unfair and fraudulent. He maintains that he is entitled to compensation on account of losing his job with the Blue Jays and not attracting the interest of other teams.

Bolsinger also asserts that Astros owners owed a duty to him (and to other players) to adequately supervise and train Astros staff and players. These individuals, Bolsinger stresses, should have been monitored and disciplined so they wouldn’t irreparably damage the careers of opposing teams’ players. From this lens, the Astros were negligent for failing to “properly hire, train and supervise its employees” and this failure “was the direct cause and a substantial factor in Bolsinger’s damages.”

Further, Bolsinger maintains the Astros unlawfully interfered with his ability to gain employment. This argument is captured in his three claims for interference. As Bolsinger sees it, the Astros’ cheating unlawfully disrupted his contractual relationship with the Blue Jays and with teams that would have been interested in signing him but for the Aug. 4, 2017 game and his resulting demotion to Triple A.

If his case is successful, Bolsinger, who signed a $545,700 contract with the Blue Jays for the 2017 season, could be awarded millions of dollars in damages. The amount would reflect what he would have earned over the last two seasons and future seasons (less the amount he was paid in Japan).

Likely defenses by the Astros—and how Bolsinger could try to rebut them

The Astros will answer Bolsinger’s complaint and, in subsequent pleadings, raise a series of legal defenses.

First, the Astros will probably argue that Bolsinger’s claims are preempted by contractual obligations on the part of MLB players to arbitrate matters related to salaries, earnings and other workplace matters.

To that point, Bolsinger’s ability to pitch in the big leagues is contingent upon his membership in the Major League Baseball Players Association. The MLPBA and MLB agree in their CBA that disputes over players’ pay, promotions/demotions and other terms of employment, are handled by a grievance procedure. In addition, Paragraph 9 of the uniform player contract states, “the club and the player agree to accept, abide by and comply with all provisions of the Major League Constitution, and the Major League Rules, or other rules.” The Astros can insist that even if Bolsinger’s arguments are factually valid, they can’t be heard by a court. He and his union have agreed that the types of claims he raises are handled through a private and out-of-court grievance process as detailed in the CBA. The Astros are thus inclined to ask the court to dismiss the lawsuit on grounds that Bolsinger must first arbitrate.

In response to a preemption-styled defense, Meiselas would insist that a contractual obligation to arbitrate is not absolute. In matters of intentional fraud and deceit, courts have ruled that the obligation can be overcome and courts can hear related disputes. Meiselas can also stress that Bolsinger isn’t suing MLB (or the MLBPA) for failing to effectively police Astros management and players. He’s suing the defendant that knowingly harmed him through intentional cheating. Meiselas was thus wise to advise his client to not sue MLB. He is litigating against the party that engaged in intentional misconduct, which should help him try to overcome a preemption defense.

A second possible defense for the Astros is that Bolsinger can’t prove sufficient causation. This is particularly the case since he wasn’t pitching all that well before the Aug. 4, 2017 game.

Bolsinger had entered the now infamous game with a 5.49 ERA. He had given up 44 hits, including eight home runs, along with 24 walks over 41 innings. It’s true that his previous two outings were pretty good–on July 18, he gave up one earned run over 3 1/3 innings against the Red Sox and on July 30, he surrendered one earned run over 2 1/3 innings against the Angels—but he had some clunkers prior to then, too. The Astros could credibly argue that Bolsinger might have pitched poorly in the game with or without the batters cheating. They could likewise assert that his career wasn’t destroyed by one horrific outing. He had other bad outings in 2017. Bolsinger was also a pitcher who bounced between big leagues and Triple A over the prior few seasons—including in 2016 when he had 6.83 ERA for the Dodgers. Teams didn’t want Bolsinger after the 2017 season, the Astros could maintain, because he had failed as both a starter and reliever and there were more appealing options available to them at the time.

As a rebuttal, Meiselas might stress that Bolsinger’s lack of success before 2017 is mostly irrelevant since he was a starting pitcher during that stretch. Before they cut bait with Bolsinger, the Blue Jays were in the process of converting him into a reliever. While Bolsinger hadn’t exactly excelled in that role, he showed some promise. The Aug. 4 outing, however, gave the team reason to conclude that Bolsinger would be just as ineffective as a reliever as he was as a starter. The fact that the Blue Jays didn’t recall him despite a 1.70 ERA in Triple A suggests they reached a final decision about him after the Aug. 4 game.

The Astros are also poised to argue that the case shouldn’t be tried in Los Angeles and that Houston would be a more appropriate forum. After all, the game serving as the epicenter of Bolsinger’s case was played in Minute Maid Park. Bolsinger’s nexus to Los Angeles is also uncertain. While he pitched for the Dodgers in 2016, he pitched for the Blue Jays in the year that matters, 2017. Further, in his complaint, Bolsinger identifies himself as a resident of Texas. The Astros would prefer to draw from a jury pool of Houston residents than of Los Angeles residents, some of whom understandably resent the Astros for cheating against the Dodgers in the 2017 World Series.

In response, Meiselas would highlight that Bolsinger isn’t suing the Astros as a ball club. He is suing the Astros as a limited liability company. This is an important distinction. The complaint asserts this company has investors in Los Angeles. Assuming that is correct, Meiselas can stress that while limited liability companies are attractive business structures to investors for many reasons—including to limit the risk of personal liability to investors—they create opportunities for plaintiffs to sue anywhere were investors reside.

The Astros might also claim that Bolsinger waited too long to sue under applicable statues of limitation. For instance, negligence and interference claims in California normally must be brought within a couple of years; the Aug. 4, 2017 game occurred about two and a half years ago.

Meiselas clearly anticipates this type of defense. In the complaint Meiselas stresses that Bolsinger had no reasonable way of knowing about the 2017 cheating until Jan. 13, 2020, when Manfred and MLB confirmed that it happened. Meiselas can persuasively argue that the starting point for the statute of limitations is not Aug. 4, 2017 but rather Jan. 13, 2020. Assuming that argument persuades the court, Bolsinger’s claims would be timely.

The dangers of pretrial discovery for the Astros and MLB

The above analysis shows a series of competing arguments related to whether Bolsinger or the Astros will prevail in his case. Yet even if the Astros believe they’ll win, litigating against Bolsinger could be risky to the club.

To that end, if Meiselas persuades a court to deny a motion to dismiss filed by the Astros, the case would enter pretrial discovery. During it, current and former Astros staff and players, as well as other witnesses—such as MLB officials and Blue Jays staff from the 2017 season—could be forced to answer questions under oath and share relevant emails and texts. Bolsinger would demand to know more about the cheating scandal and the thinking of the Blue Jays in not giving him another chance. Information gathered in discovery could potentially become available to the public.

This is a significant point. MLB is a private entity. It shares with the public (and media) whatever information about the controversy that it chooses to share. If there is evidence that reflects poorly on MLB officials, such as if they seemed passive toward concerns raised about the Astros, Bolsinger’s case could reveal it. MLB would then become more vulnerable in the DFS litigation referenced at the top of this story. MLB officials would also become more of a target to members of Congress who would like to hold hearings on the sign stealing controversy. The same goes for implicated players, whom Manfred hasn’t punished but whose misconduct could be highlighted if Bolsinger’s case advances.

Consequently, if Bolsinger and Meiselas have traction in court, expect the Astros to offer them attractive settlement terms in hopes that they agree to drop the case.

Other pitchers could sue, but many probably won’t

If you canvass the box scores of Astros home games from 2017, you’ll likely find other “Bolsingers”—journeyman pitchers who were lit up by Astros batters and who, as a result, lost the confidence of their manager and themselves. They could pursue similar cases as Bolsinger and would be more likely to do so if his case advances.

That said, the pool of potential plaintiffs is probably small. Most pro athletes don’t go to the court to resolve their career grievances. Perhaps they ought to, but they seldom do. Also, when pro athletes do go to court, usually it is with the encouragement and involvement of their unions. That is not the case with Bolsinger, who is flying solo.

Bolsinger’s situation is also somewhat unique. He’s been out of North American baseball for two years. Last season he finished with 4-6 record and a 4.63 ERA for the Chiba Lotte Marines. It’s not clear that Bolsinger has a viable path to return to MLB. In contrast, pitchers who are still in the majors or who have good reason they can return may be less inclined to sue over Astros' batters depriving them of fair competition three seasons ago.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.

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