The old elephant in the room of Major League Baseball has reared its ugly head once again:  cheating.  More specifically, sign stealing.  Cheating and baseball have a long marriage.  The 1951 New York Giants, in fact, won maybe the most famous pennant in baseball history by illegally stealing signs.

Technology, however, has changed sign stealing from an old baseball tradition into something more like a large-scale fraud.  On January 13, 2020, Major League Baseball completed its investigation of an illegal sign stealing scheme by the Houston Astros—an investigation that it has called the most extensive investigation in the history of the game.  MLB found that Astros players illegally decoded opponents’ signs from the team’s video room, in route to their 2017 World Series championship, with the help of a hidden camera in center field.  Astros players would then bang trashcans to give their hitters a heads up about what pitch was coming:  No bang for a fastball and one or two bangs for off-speed pitches.  Astros General Manager Jeff Lunhow, Astros Manager A.J. Hinch, Red Sox Manager (and former Astros Bench Coach) Alex Cora, and Mets Manager (and former Astros player) Carlos Beltran all lost their jobs over their roles in the scandal.  MLB is currently investigating whether the Boston Red Sox used a similar sign stealing scheme during their 2018 championship season.  The investigation is expected to conclude before Spring Training.  There has even been talk of stripping the Astros and the Red Sox of their 2017 and 2018 titles.

Some fans, however, have taken their fury over illegal sign stealing in baseball to the courtroom.  On January 24, 2020 the first class action lawsuit was filed against MLB, the Astros, and the Red Sox.  The complaint, filed in the U.S. District Court for the Southern District of New York, claims the teams’ cheating cost fans money by hurting their fantasy baseball picks made through DraftKings, of which Major League Baseball is an investor.  The class plaintiff says that as MLB and other professional sports leagues have embraced legalized gambling, MLB owes its fans and gamblers a fair playing field—because gamblers’ money is on the line.

Unfortunately for this plaintiff, his lawsuit is likely destined for failure.  There are numerous examples of fans bringing class action lawsuits against professional sports teams, in which they claimed that they were deprived of a fair and honest product on the field.  None of these “fan lawsuits” have succeeded.  In 2007, a New York Jets fan sued the New England Patriots and head coach Bill Belichick over a videotaping scandal, in which the Patriots were punished for illegally filming the Jets’ defensive hand signals.  The United States Court of Appeals for the Third Circuit affirmed the dismissal of the lawsuit, holding that the fan possessed nothing more than a contractual right to a seat to see a game between the Jets and the Patriots, and that this right was honored.  The Louisiana Supreme Court recently dismissed a similar lawsuit brought by a New Orleans Saints fan on behalf of the team’s season ticket holders.  The suit, which accused the NFL of fraud and deceptive trade practices, was over a controversial non-call in the NFC championship game against the Los Angeles Rams that might have cost the Saints a chance to play in the Super Bowl.  The court ruled, however, that Saints season ticket holders are not among the class of persons with a cause of action against the NFL and its officials over the referee’s decision.  Fans who purchase tickets to the game merely have a right to enter the stadium and to sit in a seat the game.  They do not have a contractual expectation to an honest game on the field.

Some have speculated that courts may look more favorably upon fan lawsuits after numerous states have legalized sports betting.  This is probably not going to happen.  Fans who bet on sporting events do not have a contractual relationship with the teams or the league on which they are betting.  Rather, when fans use a service like DraftKings to place a bet on a game, their rights are controlled by DraftKings’ terms of service, which contain a mandatory arbitration provision negating any class action lawsuit before it can even begin.  Unfortunately for fans placing bets on baseball games or other contests, even when the outcome may be impacted by sign stealing, they likely do not have any remedy in court.  Fan lawsuits, however, no matter what the law says, are likely to continue because, if nothing more, they provide an opportunity for fans to air their grievances and an easy marketing opportunity for lawyers as well.