March 2011 - Bunting for Boilerplate

by Justice William W. Bedsworth

My late father was not a sports fan. He was whatever the opposite of a sports fan is. He used to say, “I hate sports the way people who love sports hate common sense.”

He passed this attitude on to my brother. I doubt my brother has ever watched a Super Bowl in his life. If you tied him up in front of a television set and told him his options were death or watching a complete major league baseball game, he would have to think about it. Probably for a long time.

But I was a mama’s boy, and Mom loved sports. She took me to the Little League tryouts, played catch with me in the front yard, and went to hockey games with me well into her eighties.

She died five years ago, but she’s still with me whenever I watch a game. And I will watch pretty much anything where they keep score.

I mention all this to establish that I am well aware my affinity for sports would be considered an infirmity by many. I do not labor under the misapprehension shared by many of my gender that everybody’s chromosomal lineup includes the big game/tailgating/team jersey/hand-me-another-beer gene.(1)

So when I tell you this column is about sports contracts, at least you know I recognize the subject matter does not guarantee that it will be interesting. I may or may not be able to make it interesting, but it won’t be for lack of understanding that sports talk does not automatically light up your PET scan.

Nor am I going to sink into the standard rant about the trashbags full of money these contracts inevitably involve. I will not spend an inordinate amount of space lamenting, for example, the contract recently signed by Prince Fielder.

Mr. Fielder, a very good baseball player(2), has agreed to play baseball for the Milwaukee Brewers next year for only 15.5 million dollars. That means he will make . . . every four days . . . every 15–20 at-bats . . . more than the President of the United States makes in a year. Even considering the premium that must attach to spending a year in Milwaukee, that seems excessive.

But that’s not my complaint today. That is my complaint most days. That is my complaint every time I pick up the paper and read that the Hoboken Hobos are going to pay Snotch Shovegolinsky a sum greater than the gross national product of Bolivia to kick a ball into a net fifteen times this year(3) . . . but I do not intend today to gnaw on that bitterness in print.(4)

No, what’s attracted my attention today is not so much the players as the attorneys who represent them. These people seem to have raised boilerplate to an art form. Either they have simply concluded that no one—neither their clients nor the clients’ employers—actually reads any part of the contract that does not include zeroes, or there is something going on here I can’t begin to understand.

Jayson Stark of ESPN(5), actually read some of these contracts and has published some amazing provisions in them.

For example, Chien-Ming Wang has signed a contract to pitch for the Washington Nationals. Mr. Wang’s previous contracts have averaged 4–5 million dollars yearly of late, which, given the fact he averaged 22 outings a year means he made what the President made in six months every time he stepped on the mound.

On a good day, Mr. Wang would work roughly two hours for that $200,000. You can do the math on that.

Unfortunately, the last few years, Mr. Wang has had fewer and fewer games in which he lasted two hours. The last coupla seasons, he has barely stepped onto the mound before his manager has had to come out and tell him to step off of it, for fear his ineffectiveness would get someone killed by a batted ball.

So this year’s contract is a mere pittance: two million dollars. The money is guaranteed, so he’ll lap the President several times even if he gets hammered more often than Charlie Sheen. But it’s still less than he’s used to. Obviously, the recession has hurt everyone.

But what I love is that the contract is incentive-laden. He gets two million if he never gets anyone out.(6) But if he plays well, he can get back to the five mil mark.

For example, one of the terms of his contract is that he will receive a $50,000 bonus if he has the best batting average amongst pitchers in the league this year.

Why do I love that? Because Chien-Ming Wang has never had a hit in his entire major league career. He has batted 15 times, struck out in eight of them, and hit into a double play, which means he has made more outs than at bats—an accomplishment I had previously thought only I had managed.

Yet his lawyer felt it a good idea to get that bonus incentive into the contract.

J. C. Romero’s attorney got the same clause included in Romero’s contract—a sterling piece of negotiation, considering Romero has not even BATTED since 2007, and as Jayson Stark points out, June 15th of this year will mark the 10th anniversary of Romero’s last hit.(7)

What do you think is going on here? Are the attorneys using these clauses to fatten the value of the contracts when they discuss them with their clients? Are they merely responding to clients’ unreasonable expectations? Are they just copying the contract boilerplate from the lawyers down the hall?

How do you explain that five players’ contracts with the Pittsburgh Pirates include incentive deals that pay them extra if they are voted Most Valuable Player in the World Series? The Pirates have not had a season in which they won more games than they lost since Johnny Carson retired. They will get into the World Series this year the same way Prince Fielder will get into the Hall of Fame (See Footnote 2, supra).

Three pitchers, Will Ohman, Jesse Crain, and Takahashi Saito have new contractual provisions that guarantee them a bonus if they’re chosen to start the All-Star Game. None of the three has ever started a REGULAR SEASON game. Not once. You don’t have to be a sabermetrician to know that no pitcher has ever made his first start in the All-Star Game.(8)

Wouldn’t you love to be a fly on the wall for some of these attorney-client conversations?

“Well, Lefty, I’m afraid I wasn’t able to get you the full five million. The team seems to feel your value was diminished when the 18-wheeler ran over both your legs and then backed up over your feet. They won’t go higher than 2 million.”

“Stupid jerks; Five million is only five wins.(9) I can get five wins pitching from a wheelchair.”

“Yeah, that’s what I told them, but they felt since you wouldn’t be able to leave your hospital bed until mid-season, they just couldn’t be sure when you’d be able to get into the wheelchair.”

“That’s ridiculous. I’m Lefty Sinestri, for crying out loud! I’m bigger than Jesus Christ!”

“No, Lefty, that was John Lennon. You’re bigger than Nolan Ryan. Besides, Lennon actually said, ‘more popular than Jesus,’ and after that whole spitting on the fans thing, I don’t think you’re gonna be able to get there.”

“Oh. Well . . . whatever . . . there’s no way I’m signing for a lousy five million.”

“Ah, but that’s the genius of the thing, Lefty. That’s why you hired me. Under this contract, you get an extra million if you’re the first pitcher ever to lead the league in stolen bases.

“You get $500,000 if you win Dancing With the Stars. And you get $400,000 each for victories in the Kentucky Derby, the Indianapolis 500, or the Boston Marathon. That’s 8 million right there.”

“Hmmm . . . that’s cool. I guess once I get out of the wheelchair . . .”

“And we got lots of other incentives. You kick the longest field goal in NFL history? 200K. You win the NBA Slam-Dunk Contest? 300K. Swim the English Channel? 200K. Get elected President of Croatia? $50K.

“Why only $50K for that?

“They didn’t know what Croatia was. I guess they thought you might actually be able to do that.”

“Okay, where do I sign? And what’s Croatia?”

Inspired by this kind of lawyering, I went in to see the Presiding Justice. Told him I wanted to re-negotiate my contract. Told him Prince Fielder was dissing me at the gym.

He said he couldn’t give me any more money. But I was totally ready for that. I hit him with my incentive demands. He never had a chance.

I walked out with extra security when I leave the building any time my groupies number more than a hundred, no brown m&m’s in my candy supply if the court ever provides candy, a trophy case in the lobby for my first Pulitzer, and all the incentive clauses Lefty Sinestri got.(10)

Can’t wait to see Fielder at the gym.


(1) The beer thing eludes me, too. I can only assume our species drinks beer instead of kerosene because the latter is flammable. My tastebuds can discern no other difference between the two.
(2) But not really a prince. And not a player likely to get into the Hall of Fame by any means other than buying a ticket.
(3) Like a large number of men my age, I am very close to being driven to reconsideration of communism by the salaries paid modern puck-strikers, ball-catchers and baserunners.
(4) Pretty impressive display of self control on my part, don’t you think? I would say that was a very ordinate amount of space.
(5) Boy, am I embarrassed to remember how hard I laughed at the concept of a network based in Bristol, Connecticut, making money broadcasting Irish cycling, Munster hurling (honest, those were two of their first big events) and Australian Rules Football. Thirty years later, I’m still making car payments and they own General Motors.
(6) A distinct possibility, which only underscores the Nationals’ profligacy.
(7) And don’t bother pointing out to me that Romero has spent much of his career in the American League. If you follow the game closely enough to know where J. C. Romero is pitching, you also know he’s a set-up man and will bat roughly once every leap year no matter what league he plays in.
(8) I’ll save you the trouble: a sabermetrician is a baseball scientist. Honest. Welcome to the 21st Century.
(9) Hiroki Kuroda, who has never won 12 games in a season, will be paid $12 million dollars next year to pitch for the Dodgers. But I’m not bitter. Edging toward my previously eschewed “inordinate amount of space,” perhaps, but not bitter.
(10) Except Croatia. He thought I might actually pull that off. 

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.