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Fraudball: Age Falsification and Identity Fraud among Dominican Prospects and its Impact on Major League Baseball

By Arthur Trey Hendricks III


Caribbean Law Yearbook, Vol. 1 Issue 1

Invent something and make him a ballplayer.1 This idea has been utilized hundreds of times in the Dominican Republic, and sometimes nets the players millions of dollars. In a country where hunger and poverty are the norm,2 baseball is a way off the Island for some talented young men. Unfortunately, the rules are sometimes broken in order to make these dreams a reality. In a one year span from 2003 to 2004, over three hundred Dominican prospects were signed by Major League Baseball clubs, and over forty percent were not who they claimed to be.3 This is an astounding number, and while the trend has steadily declined since 2004,4 it remains a problem today.5 This paper will analyze the age falsification and identity fraud problem that has plagued Major League Baseball (MLB) clubs in the Dominican Republic for nearly two decades, and continues to be a problem today. Part I of this paper will discuss the historical background of the problem, focusing on some notable cases of age falsification and identity fraud, as well as some recent headlines that suggest the problem still exists today. Part II will analyze various solutions that have been proposed and will dissect the pros and cons of each. Part III will examine the legal issues that arise, including the legality of genetic testing and immigration problems that are caused by false documents. Finally, Part IV will suggest solutions that could put an end to the fraudulent conduct among Dominican baseball prospects. Part I: Historical Background

1

See Ortiz, Jose de Jesus, Lying About Age not Uncommon for Dominican Baseball Players, Houston Chronicle (May 4, 2008, 1:28 AM), http://www.chron.com/disp/story.mpl/sports/5752338.html (last visited Apr. 13, 2011). 2 See Central Intelligence Agency, The World Factbook: Central America and Caribbean: Dominican Republic, available at https://www.cia.gov/library/publications/the-world-factbook/geos/dr.html (last updated Apr. 26, 2011)(noting that 42.2% of the population lived below the poverty line in 2004). 3 See Ortiz, Jorge, Exploitation, Steroids Hitting Home in Dominican Republic, USA Today (Mar. 29, 2009, 11:08 PM), http://www.usatoday.com/sports/baseball/2009-03-26-dominican-republic-cover_N.htm (last visited Apr. 13, 2011). 4 Id. 5 See generally Segura, Melissa, Source: MLB Nixes Yanks Signing of Player with Fraudulent Identity, SI.com (July 16, 2009, 7:21 PM), http://sportsillustrated.cnn.com/2009/baseball/mlb/07/16/yankees.signing/index.hmtl (last visited Apr. 13, 2011).

On January 5, 2011, a Dominican talent scout, or buscon6, was arrested and charged with fraud and falsifying documents for prospects he was attempting to sell to MLB clubs.7 While this was one of the most recent incidents involving Dominican prospects, it is nothing new. In order to understand the problem currently facing MLB clubs, it is necessary to trace the history of identity fraud and age falsification among Dominican prospects from its known beginning. a. Miguel Tejada In 1993, the Oakland Athletics signed Miguel Tejada8, a Dominican prospect whom the club thought was seventeen (17) years old. It turned out that Tejada was nineteen (19) at the time of his signing,9 but it took fifteen (15) years to reveal the truth.10 By the time Tejadas lie had been uncovered, he was an established MLB star and the Houston Astros (Tejadas employer at the time) did not seem to care about the fraud that had initially brought him to the United States.11 In fact, his official documents revealed that he was born in 1974, whereas the teams media guide and roster listed his year of birth as 1976.12 The Astros quickly corrected their documents to reveal Tejadas true age, and the incident was seemingly forgotten.13 b. Adrian Beltre

See generally Ortiz, supra note 2 (describing the role a buscon plays in the development of young Dominican prospects). 7 See OKeeffe, Michael, Fraud Charges for Victor Baez After He Allegedly Lies About Ages of Players from Dominican Republic, NYDailyNews.com (Jan. 5, 2011), http://articles.nydailynews.com/2011-01- 05/sports/27086486_1_dominican-republic-identity-fraud-dominican-authorities (last visited Apr. 19, 2011). 8 See generally Tejada, Miguel, BaseballReference.com, http://www.baseball- reference.com/players/t/tejadmi01.shtml (last visited Apr. 19, 2011). 9 See Tejada Admits to Being Two Years Older Than He Had Said, ESPN.com (Apr. 18, 2008, 1:26 AM), http://sports.espn.go.com/mlb/news/story?id=3351418 (last visited Apr. 19, 2011). 10 Id. 11 Id. 12 Id. 13 Id.

In 1994, one year after Miguel Tejada signed with the Oakland Athletics, Adrian Beltre14 signed with the Los Angeles Dodgers. However, unlike in the case of Tejada and many contemporary fraud cases, Beltre signed at the age of fifteen (15),15 which is forbidden by MLB.16 Instead of waiting until the mandatory sixteen (16) years of age to sign, Beltre falsified his documents to make himself older than he actually was. This case was rare for two reasons: first, it was one of the few instances where a Dominican prospect falsified documents to make himself older, and second, the MLB club seemed to be behind the incident.17 The Los Angeles Dodgers wanted to secure Beltres services even though he was not yet the requisite age to sign with a MLB club. Though the details differ between Beltres case and Tejadas case, both are useful in establishing that the problem with age falsification and identity fraud among Dominican prospects is not a new problem, but rather can be traced back nearly two decades. c. Modern Cases i. Esmailyn Gonzalez/Carlos Alvarez Daniel Lugo

In 2006, the Washington Nationals thought they were signing a sixteen (16) year-old Dominican phenom by the name of Esmailyn Gonzalez.18 Three years later, it was revealed that Gonzalez was really Carlos Alvarez Daniel Lugo, and he was four years older than he led the

14

See generally Beltre, Adrian, BaseballReference.com, http://www.baseball- reference.com/players/b/beltrad01.shtml (last visited Apr. 19, 2011). 15 See Chass, Murray, Baseball; Dodgers Get to Keep Beltre, but Are Penalized, The New York Times (Dec. 22, 1999), http://www.nytimes.com/1999/12/22/sports/baseball-dodgers-get-to-keep-beltre-but-are-penalized.html (last visited Apr. 19, 2011). 16 See Segura, Melissa, In International Market, MLB Teams are Buying Costly Lottery Tickets, SI.com (July 2, 2009, 4:48 PM), http://sportsillustrated.cnn.com/2009/writers/melissa_segura/07/02/international.signing/index.html (last visited Apr. 19, 2011)(explaining that amateur free agents must turn 17 years old before the end of their first professional season, and that July 2 is the first day that a team can sign a player to a contract effective the following season). 17 See generally Chass, supra note 14 (detailing the events that led to Commissioner Bud Selig shutting down the Los Angeles Dodgers Dominican Academy for a year as punishment for falsifying Beltres documents and assisting in the defection of two Cuban prospects to the Dominican Republic). 18 See Ladson, Bill, Nats Top Prospect Falsified Name, Age, WashingtonNationals.com (Feb. 18, 2009, 11:30 AM), http://washington.nationals.mlb.com/news/article.jsp?ymd=20090218&content_id=3843196&vkey=news_was&fe xt=.jsp&c_id=was (last visited Apr. 19, 2011).

Nationals to believe.19 The signing would not have been newsworthy if Lugo had signed for the $2000 Tejada had signed for,20 but Lugos $1.4 million bonus was the largest given to an international player in club history.21 The Nationals believed they were signing a young prospect with elite skills that could be developed in the United States minor leagues and would one day be a star. However, when the truth was revealed, the Nationals were defrauded for over a million dollars and four years of lost development time. As one scout explains, In the eyes of baseball, theres a huge difference between 16 and 19 year olds . . . [I]ts night and day.22 ii. Jose Ozoria/Wally Bryan and Damian Arredondo

Two other notable cases occurred in 2008 and 2009 involving the Cleveland Indians and the New York Yankees, respectively. In 2008, the Cleveland Indians thought they were signing a seventeen (17) year-old, high-profile shortstop named Jose Ozoria. However, a subsequent MLB investigation revealed that the players real name was Wally Bryan, and he was three (3) years older than the Indians believed.23 While the $575,000 bonus Bryan received was not astronomical by modern standards, it was nearly one-quarter of the Indians international freeagent signing budget for 2008.24 With that money saved, the Indians could have targeted a different international prospect or spent it in the MLB draft.


19 20

See Id. See Brazil, Eric, Ball Player Dreams of Grandes Ligas, SFGate.com (May 3, 1999), http://articles.sfgate.com/1999-05-03/entertainment/28598480_1 (last visited Apr. 19, 2011). 21 See Ladson, supra note 17. 22 Schmidt, Michael S. & Schwarz, Alan, Baseballs Use of DNA Raises Questions, The New York Times (July 21, 2009), http://www.nytimes.com/2009/07/22/sports/baseball/22dna.html (last visited Apr. 19, 2011)(quoting an international scout for a major league team). 23 See generally Hoynes, Paul, Cleveland Indians Will Dive Into International Free-Agent Market: Indians Insider, Cleveland.com (July 1, 2009, 10:53 PM), http://www.cleveland.com/tribe/index.ssf/2009/07/cleveland_indians_will_dive_in.html (last visited Apr. 19, 2011). 24 Id.

One year later, in 2009, the New York Yankees signed a sixteen (16) year-old Dominican shortstop for $850,000.25 After the MLB Department of Investigations discovered that Damian Arredondo was not who he claimed to be and was older than he led the club to believe, the Yankees revoked his contract.26 This case was significant because a new MLB rule had just been instituted where a player found to have used fraudulent identity or to have misrepresented his age could not sign with another MLB club for one (1) year.27 Weeks after his contract was revoked by the Yankees, Arredondo tested positive for performance enhancing drugs,28 and he is now subject to a fifty (50) game suspension if he signs with another MLB club.29 The Arredondo case is significant because it is the first high-profile prospect punished by MLB for falsifying documents and misrepresenting his age,30 and it probably had a deterring effect on prospects in similar positions. The system is, however, still flawed and sweeping changes are necessary in order to rectify the problem. d. The Buscones Buscones, which means seekers in Spanish,31 are influential people in a lot of young Dominican prospects lives. While most buscones claim to be well-intentioned,32 and some

25

See generally Segura, supra note 4 (describing the events that occurred in 2009 when the Yankees pulled the contract of Damian Arredondo after an MLB investigation revealed he was not who he said he was). 26 See generally Buggenhagen, Matt, Yankee Prospect Damian Arredondo Discovered To Be A Fraud, MLBDailyDish.com (July 16, 2009, 8:46 PM), http://www.mlbdailydish.com/2009/7/16/952068/yankee-prospect- damian-arredondo (last visited Apr. 19, 2011)(explaining that although MLB contracts are guaranteed, international signings are not finalized until MLB has conducted investigations and approved the deal). 27 See Segura, supra note 4. 28 Dominican Prospect Damian Arredondo Suspended for Steroids, DominicanToday.com (Sept. 12, 2009, 1:10 PM), http://www.dominicantoday.com/dr/sports/2009/9/12/33222/Dominican-prospect-Damian-Arredondo- suspended-for-steroids (last visited Apr. 19, 2011). 29 Id. 30 The author recognizes that other prospects have given all or a portion of their signing bonus back to the club upon being caught of identity fraud or age falsification, but this was the first instance where a high-profile prospect was forced to wait a year before signing with another MLB club. MLB was presumably trying to deter prospects by forcing them to wait another year, and devalue them, so as to prevent similar occurrences. 31 See Ortiz, supra note 2. 32 Id.

certainly are, critics view them as exploitative and furtive. As one law professor notes, [b]uscones in the Dominican Republic are in the business of selling children.33 The buscones claim to be part teacher, part caretaker, and part agent.34 The buscones typically find the Dominican prospects during their formative years (thirteen (13) to fifteen (15) years old) and attempt to turn them into players that are appealing to MLB clubs. A lot of the kids who join the buscones at their training academies come from families who cannot support them,35 so this is a way for them to eat every day and have a roof over their head. The buscones, however, expect a large return on their investment, ranging from thirty (30) to forty (40) percent of the prospects bonus upon signing with a MLB club.36 Some buscones even seek American investors to fund their academies, with promises that the investors will see a large return once the prospects sign with MLB clubs.37 e. Recent Problems In May 2009, Juan Collado signed with the Arizona Diamondbacks for $17,000.38 In March 2011, Juan Paniagua signed with the New York Yankees for $1.1 million.39 The problem is that Juan Collado is Juan Paniagua. Paniagua played a one-year suspension for fraudulent paperwork into a huge payday. After sitting out his year-long suspension mandated by MLB,


33

See generally Schmidt, Michael S., New Exotic Investment: Latin Baseball Futures, NYTimes.com (Nov. 17, 2010), http://www.nytimes.com/2010/11/18/sports/baseball/18investors.html?pagewanted=1 (last visited Apr. 29, 2011)(quoting David P. Fidler, a professor of international law at Indiana University). 34 See Ortiz, supra note 2. 35 Id. 36 See Ortiz, supra note 2; see also Segura, Melissa, Ties Between Dominican Prospects and Bookie Raise Concerns for MLB, SI.com (July 22, 2008, 11:24 PM), http://sportsillustrated.cnn.com/2008/baseball/mlb/07/22/segura.drcrisis/ (last visited Apr. 20, 2011). 37 See generally Schmidt, supra note 33 (describing how some controversial American investors spend hundreds of thousands of dollars investing in the buscones academies in the Dominican Republic). 38 See Badler, Ben, Suspension Helped Former Diamondback Net $1.1 Million From Yankees (Mar. 14, 2011), BaseballAmerica.com, http://www.baseballamerica.com/today/prospects/international- affairs/2011/2611408.html (last visited Apr. 20, 2011). 39 Id.

Paniagua signed a contract sixty-five times higher than his original.40 A similar case involved Carlos Martinez (Carlos Matias), who had originally signed a low-six-figure contract with the Boston Red Sox. After serving his MLB mandated one-year suspension for fraudulent documentation, Martinez signed a $1.5 million contract with the St. Louis Cardinals.41 After MLB enacted the mandatory one-year suspension for false documents following the Arrendondo case,42 officials probably did not imagine this would encourage Dominican prospects to use fraudulent documents. However, these two cases illustrate that this has indeed occurred and more needs to be done in order to curb the problem. Part II: Proposed Solutions Various tests have been implemented by MLB in an attempt to curb the identity fraud and age falsification issues plaguing the Dominican Republic. However, none of these methods are completely accurate, and a new piece of legislation may prohibit MLB from continuing these procedures altogether. a. DNA Testing In 2009, the Minnesota Twins signed Dominican infielder Miguel Sano for $3.15 million, the largest bonus ever given to a Latin American position player.43 Before he signed, serious questions about his age and identity surfaced, and he consented to DNA testing and bone scans to prove he was who he claimed to be.44 MLB claims that it uses DNA testing in the Dominican Republic in very rare instances and only on a consensual basis to deal with the identity fraud


40 41

Id. Id. 42 See Segura, supra note 4. 43 See Badler, Ben, Miguel Sano Agrees to Terms with Twins, BaseballAmerica.com (Sept. 29, 2009, 6:05 PM), http://www.baseballamerica.com/blog/prospects/2009/09/miguel-sano-signs-with-twins/ (last visited Apr. 20, 2011). 44 See Schmidt & Schwarz, supra note 21.

problem that the league faces in [the DR].45 These DNA tests have been utilized by individual teams for a few years, and MLBs department of investigations has been doing it for about a year.46 There are, however, problems with these DNA tests and bone scan procedures. i. Problems with Genetic Testing

One of the main problems with DNA testing is that the results are limited. The DNA test does not reveal the players age, but it can reveal whether the player is the son of his claimed parents.47 Players have been known to find families willing to lend a younger childs birth certificate so that they appear younger.48 In reality, the DNA tests only help detect the players who falsify their identity, not their age, so the usefulness of the tests is limited. Another concern for critics of DNA testing is that teams will use the results for other, illicit purposes.49 As one scouting director questioned, Can they test susceptibility to cancer? . . . I know theyre looking into trying to figure out susceptibility to injuries, things like that.50 As long as MLB uses the DNA results for the limited purpose of proving identity, proponents of the testing argue it should be allowed.51 In addition, some argue that this should be a last resort method of verifying the players identity, that there should be a prior evidentiary basis for suspecting fraud, and that the results should be controlled by an independent party.52 If these conditions are met, it may help to legitimize the testing procedure and appease those concerned with invasion of privacy issues.

45 46

Id. Id. 47 Id. 48 Id. 49 See Schmidt & Schwarz, supra note 21 50 See Schmidt & Schwarz, supra note 21 (quoting a MLB scouting director concerned where DNA testing will lead). 51 See Schwarz, Alan, Dominican Youths Future in Baseball Hinges on a DNA Test, NYTimes.com (July 22, 2009), http://www.nytimes.com/2009/07/23/sports/baseball/23dna.html (last visited Apr. 20, 2011). 52 See Saletan, William, Baseball and DNA, Slate.com (July 23, 2009, 9:51 AM), http://www.slate.com/blogs/blogs/humannature/archive/2009/07/23/baseball-and-dna.aspx (last visited Apr. 20, 2011).

b. Bone Scans Like genetic testing, bone density scans have limited results. While the scans can reveal the age of the patient to a certain degree, there is a margin of error.53 The scans can determine if a player is several years older than he claims to be, but in cases where the difference in age is a year or two, the scans have limited effectiveness. In Miguel Sanos case, he was given a bone scan along with his seventeen-year-old sister in order to determine that he was, in fact, her younger brother.54 Only by matching up Sanos submitted birth certificates, and a combination of DNA testing to prove his parents were who he claimed and bone scans to prove he was younger than his sister, was MLB able to determine that Sano was around sixteen (16) years old. Still, the bone density scans had limited conclusive results. c. Fingerprinting In Venezuela, children who apply for their cedula (national identification card) are fingerprinted at local administration offices.55 Some advocates of the fingerprinting system argue that this could help in curbing the age falsification and identity fraud problems plaguing the Dominican Republic.56 By fingerprinting Dominican children, well before they are on the radar of MLB clubs, it is argued that this will assist in identifying the prospects once they reach sixteen (16) years of age and are attempting to sign with MLB clubs.57 While this method is imperfect and will take years to implement, it is certainly worth consideration. The problem is

53

See Bull, R.K. et. al., Bone Age Assessment: A Large Scale Comparison of the Greulich and Pyle, and Tanner and Whitehouse (TW2) Methods, 81 Arch. Dis. Child 172-73 (1999), available at http://adc.bmj.com/content/81/2/172.full.pdf (last visited Apr. 20, 2011)(concluding that bone density scans have a margin of error between 2.28 and -1.52 years). 54 See Schwarz, supra note 48. 55 Farrell, Charles, PUTTING A FINGER ON A PROBLEM, Vol. II, Iss. 17 DRSEA Informer at 2, available at http://www.drsea.org/newsletters/DRSEA_INFORMER_Volume_II_Issue_17.pdf (last visited Apr. 20, 2011). 56 See generally Id (describing how a fingerprinting system could assist in determining the true identity of Dominican prospects, and will be more cost effective than the current methods of DNA testing and bone scans). 57 Id.

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that large-scale cooperation from the Dominican government would be necessary, and this has proven insurmountable in the past.58 Part III: Legal Issues a. Genetic Information Nondiscrimination Act The Genetic Information Nondiscrimination Act of 2008 (GINA)59 may have an effect on MLBs efforts in the Dominican Republic. GINA, which went into effect in 2009,60 generally prohibits discrimination in health coverage and employment on the basis of genetic information.61 Specifically, GINA forbids employers from refusing to hire, or discharge, any employee on the basis of genetic information.62 Furthermore, GINA forbids employers from requesting genetic information from employees, except when the employee provides prior, knowing, voluntary, and written authorization.63 Prospects may, as in the case of Miguel Sano, voluntarily offer to undergo DNA testing in order to make themselves more attractive to MLB clubs,64 which would not trigger GINA protection. i. GINA in the Courts As of this writing, no GINA decisions have been issued by the courts.65 However, Pamela Fink, a former employee of MXenergy, filed suit in April 2010 claiming that MXenergy


58 59

Id. 42 U.S.C.A. 2000ff. 60 See Department of Health and Human Services, Gina The Genetic Information Nondiscrimination Act of 2008: Information for Researchers and Health Care Professionals, Apr. 6, 2009, available at http://www.genome.gov/Pages/PolicyEthics/GeneticDiscrimination/GINAInfoDoc.pdf (last visited Apr. 20, 2011). 61 See generally Id (describing GINA and the impact it has). 62 See Grow, Nathaniel, MLB Confirms Use of Genetic Testing on Latin American Prospects, Sports Law Blog (July, 23, 2009), available at http://sports-law.blogspot.com/2009/07/mlb-confirms-use-of-genetic-testing-on.html (last visited Apr. 20, 2011). 63 Id. 64 See Grow, supra note 59. 65 Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 WM. & MARY L. REV. 1483, 1492 (2011).

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violated GINA in dismissing her from job.66 Fink underwent a voluntary double mastectomy after her doctor informed her that she was predisposed to breast cancer.67 Her former employer, MXenergy, claims that her position was terminated during her prolonged absence, and that the company had not violated GINA because it was Finks voluntary genetic test that revealed her predisposition to breast cancer.68 This case should prove interesting, as it will provide a glimpse of how courts interpret GINA in regard to voluntary genetic testing. In addition, it should provide insight as to the damages that can be recovered from companies found in violation of GINA. Fink is seeking reinstatement to her former position at MXenergy, as well as punitive and emotional distress damages.69 ii. GINAs applicability abroad? An important, unanswered question regarding GINA is whether its applicability will reach to foreign employees.70 There is little doubt that GINA would apply if MLB clubs waited to test these prospects upon their arrival in the United States. Most often, however, these clubs perform the DNA testing when the prospect is still in the Dominican Republic, so GINAs applicability is in limbo. MLB clubs want the testing done when the prospect has been signed, or is about to sign, not years later upon his arrival to the United States. Essentially, GINA may have no effect on MLBs DNA testing policies because it may not apply extraterritorially. b. Immigration Issues After the tragic events of September 11, 2001, the United States immigration laws have become more stringent. For Dominican prospects this means that if they are caught falsifying

66

See Friedman, Emily, Pamela Fink Says She Was Fired After Getting a Double Mastectomy to Prevent Breast Cancer, ABC News (Apr. 30, 2010), http://abcnews.go.com/Health/OnCallPlusBreastCancerNews/pamela-fink- fired-testing-positive-breast-cancer-gene/story?id=10510163 (last visited Apr. 28, 2011). 67 Id. 68 Id. 69 Id. 70 See Schmidt & Schwarz, supra note 21.

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their documents, the penalties are more uncompromising and they may be excludable for years. The vast majority of Dominican prospects that are caught by MLB for document fraud are still in the Dominican Republic, and have not yet been granted a visa to the United States, so this section will focus primarily on exclusion rather than deportation. Note that if a prospect is already inside the United States, however, he could be deported if his fraudulent documents are discovered. i. Visas for Minor League Players Until 2006, there were separate visa categories for MLB players and minor league players. Whereas MLB players were eligible for O or P visas,71 of which there is no limit, minor league players were forced to enter with H-2B seasonal worker visas.72 Interestingly, in 2006 the occupations with the most H-2B visas were landscaping laborers, cleaners, housekeepers, construction workers, and forestry workers.73 Because the H-2B visas are capped at 66,000 per fiscal year,74 this meant that minor league players were competing against unskilled laborers for the visas. a. Types of Visas Prior to 2006, MLB players could enter the United States on O or P visas but minor league players could not. The O visa category required extraordinary ability . . . which has been demonstrated by sustained national or international acclaim.75 This suggests that only established MLB All-Stars, or All-Stars from other countries whose professional leagues are

71

INA 101(a)(15)(P), 8 U.S.C.A. 1101 (suggesting that an athlete eligible for a P visa performs at an internationally recognized level); see also INA 101(a)(15)(O), 8 U.S.C.A. 1101 (outlining the extraordinary ability requirements). 72 See Bill to Ease Visa Restrictions on Minor League Athletes Approved by Congress, Goes to Presidents Desk for Signature, [hereinafter Minor League Athletes] (Dec. 11, 2006), available at http://www.visalaw.com/FAS/feinstein1206.pdf (last visited Apr. 28, 2011). 73 THOMAS ALEXANDER ALEINIKOFF, ET AL., IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 420 (6th ed. 2008). 74 Id. at 421. 75 See INA 101(a)(15)(O), 8 U.S.C.A. 1101.

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nearly equivalent to MLB (i.e. Japan), could meet the O visa requirements. As such, the majority of MLB players entered the United States on P visas. P visas were limited, in part, to professional athletes,76 but until 2006 did not include minor league players because these players did not meet the definition of professional athlete.77 In 2006, however, a piece of legislation amended the Immigration and Nationality Act (INA) to include minor league players under the P visa provision. b. The COMPETE Act of 2006 The Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006 (COMPETE Act of 2006)78 amended 101(a)(15)(P) of the INA to include minor league players.79 After the COMPETE Act of 2006, minor league players affiliated with MLB teams could enter the United States with P visas, and they were not forced to compete with unskilled workers due to the cap on seasonal worker visas. This Act eased restrictions on MLB Clubs in regards to the number of foreign players they could invite to Spring Training. Before the COMPETE Act of 2006, MLB Clubs were forced to choose between players of similar skill level, as not all of the foreign prospects in the Academies were able to procure visas to enter the United States. After the Act, however, the MLB Clubs could combine paperwork and bring several players to the United States on P-1 Visas using the same visa

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See INA 204(i)(2)(A), 8 U.S.C.A. 1154 (defining professional athlete as an individual who is employed as an athlete by a team that is a member of an association of 6 or more professional sports teams whose total combined revenues exceed $10,000,000 per years, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage.). 77 Id. 78 See generally S.3821: Compete Act of 2006, available at http://www.govtrack.us/congress/bill.xpd?bill=s109- 3821 (last visited Apr. 28, 2011)(outlining the changes the Act would make to the INA, namely including Minor League Athletes in the P visa category). 79 See Minor League Athletes, supra note 65 (The COMPETE Act allows top-notch athletes from around the world the opportunity to compete and perform in the United States without facing unfair and unnecessary visa restrictions. . . Theres no reason that minor league athletes should face tougher visa restrictions than their counterparts in the major leagues. Once signed into law, this bill will provide a level playing field for all foreign athletes seeking to compete in the United States.)

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application.80 The COMPETE Act of 2006 made it easier on MLB clubs to get foreign players into the country, but those caught falsifying their documents are still subject to the penalties of the INA. ii. Penalties for Falsifying Documents under the INA Section 212(a)(6)(C)(i) of the INA81 says that: Any alien, who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible. This means that if a Dominican prospect willfully falsifies his birth certificate or passport and is caught, then he is inadmissible and will not be allowed into the United States. Furthermore, if he is already in the United States and the fraud is uncovered, then he is subject to deportation.82 It is this willful provision that has enabled some prospects to procure visas even after being caught falsifying documents, as in many instances the buscon or someone other than the player falsifies the paperwork.83 The penalties for falsifying documents include exclusion for a number of years, 84 and this can have a dramatic effect on the players career. For example, if a player is found to be nineteen (19) years-old, and is forced to wait five (5) years before reapplying for a visa, his developmental years are essentially behind him and the MLB club may lose interest. This is to say that falsifying a document could end a players career in professional baseball. For some, however, the risk is worth the reward. Part IV: Solving the Problem

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Telephone Interview with Mark Scialabba, Director of Minor League Operations, Washington Nationals Baseball Club (May 3, 2011). 81 8 U.S.C.A. 1182 82 See INA 237(3)(C), 8 U.S.C.A. 1227. 83 See OKeeffe, supra note 7. 84 See INA 212(a)(9), 8 U.S.C.A. 1182.

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a. Regulate the Buscones i. Regulation 3450 and Dominican Republics General Law of Sports

Legislation regulating baseball is rare in the Dominican Republic, but there is Presidential Regulation 3450 issued in 1985 which, inter alia, (1) regulates schools and baseball camps in the DR; (2) requires that all baseball scouts operating in the DR be registered with the DR Professional Baseball Commissioner; and (3) regulates to some degree scouts signings of baseball players in the DR.85 Notice that the wording of Regulation 3450 is extremely vague, and does not define the term scout with the requisite precision. Presumably, the law was intended to regulate official MLB scouts in the Dominican Republic. The buscones sometimes consider themselves scouts, yet are not affiliated with a MLB club so they are technically outside the grasp of the law. A buscon could claim that he is merely a trainer if an entity attempts to force him under the auspices of Regulation 3450. Furthermore, the scope of the regulation offered by the law is extremely vague, both in regard to the schools and camps, and the scouts signings of prospects. Perhaps in 1985 the Dominican government did not foresee the size of signing bonuses reaching the level they are currently at, but even twenty-six (26) years ago someone should have noticed how vague Regulation 3450 truly was. Over twenty (20) years after Regulation 3450 was enacted, Dominican President Leonel Fernandez took notice and signed the General Law of Sports, a piece of legislation which included a provision that capped the amount a buscon could claim from a players signing bonus.86 According to this 2006 law, a buscon is limited to fifteen (15) percent of the players signing bonus if he has trained and invested money in that player for two (2) years.87

85

Aaron N. Wise & Bruce S. Meyer, INTERNATIONAL SPORTS LAW AND BUSINESS 870 (Kluwer Law International, Vol. 2 1997). 86 See Segura, supra note 34. 87 Id.

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Correspondingly, the buscon is limited to ten (10) percent of the players signing bonus if the relationship has lasted a year or less.88 While this piece of legislation is a law in theory, in reality it is a mere suggestion, because enforcement is nearly impossible.89 This law is significant because it signaled an attempt, albeit lackluster, on the part of the Dominican government to curb the corruption in Dominican baseball. More regulation of the buscones is needed, however. ii. Buscones should be regulated similar to MLBPA Agents

According to Article IV of the Basic Agreement90 between the Major League Baseball Players Association (MLBPA) and the MLB Clubs: A Player, if he so desires, may designate an agent to conduct on his behalf, or to assist him in, the negotiation of an individual salary and/or Special Covenants to be included in his Uniform Players Contract with any Club, provided such agent has been certified to the Clubs by the Association as authorized to act as a Player Agent for such purposes.91 The key to this provision is that the agent must be certified by the MLBPA. This certification is to establish and enforce minimum requirements for eligibility to become a Player Agent and uniform standards of conduct and fiduciary responsibility for all Player Agents.92 Furthermore, this certification aims to ensure uniformity and consistency in the rules and standards applicable to Player Agents, whose business activities are often national or international in scope, notwithstanding the different, and sometimes inconsistent, laws, rules, and regulations of the many national, state, and local jurisdictions that might otherwise govern these activities.93

88 89

Id. Id. 90 2007-2011 MAJOR LEAGUE BASEBALL BASIC AGREEMENT [hereinafter Basic Agreement], available at http://mlb.mlb.com/pa/pdf/cba_english.pdf. 91 Id. 92 See MLBPA REGULATIONS GOVERNING PLAYER AGENTS (Oct. 1, 2010) 1(A), available at http://reg.mlbpaagent.org/Documents/AgentForms/Agent%20Regulations.pdf. 93 Id.

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The problem with the buscones, who sometimes act as an Agent in negotiating player contracts with teams, is that they are not representing a MLB player. When they attempt to sell their players to MLB clubs, they are negotiating a contract for an amateur player, and are not required to be certified by the MLBPA unless they are negotiating a MLB contract for an amateur player, which is rare. Most often, these buscones are negotiating a minor league contract for their prospect, so they can skirt the requirements of the MLBPA. As is evident by the rampant corruption and age falsification occurring in the Dominican Republic, these buscones should be required to be certified and registered with MLB, or even the Dominican government. This might help filter out the corrupt buscones from the legitimate ones, and help clean up Dominican baseball. b. Increase Penalties for Players Caught in Violation of MLB Rules Similar to increasing regulation of the buscones, MLB should increase the penalties for those caught falsifying documents. In 2005, the MLBPA and MLB agreed to drastically increase the penalties for those caught using performance-enhancing drugs.94 These stricter penalties had a noticeable effect, as the number of minor league players caught using performance enhancing drugs declined from eighty-three (83) in 2005 to ten (10) in 2009.95 Minor league players were forced to reconsider the substances they put in their bodies, as a positive test would result in them missing one-third of the season.96 This stretch of games missed would have a drastic impact on the players development, and they would not be paid for the missed games.


94

See generally Barry M. Bloom & Jim Molony, MLB, Union Agree to Stricter Drug Policy, MLB.com (Nov. 16, 2005, 3:13 AM), http://mlb.mlb.com/news/article.jsp?ymd=20051115&content_id=1268529&vkey=news_mlb&fext=.jsp&c_id=mlb (last visited Apr. 20, 2011)(outlining the new drug policy agreed upon by the MLBPA and MLB). 95 See Baseballs Steroid Era Minor League Suspensions, available at http://www.baseballssteroidera.com/minor- league-suspensions.htm (last visited Apr. 20, 2011). 96 See Bloom & Molony, supra note 48.

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Correspondingly, increasing penalties for those caught falsifying documents will have the same effect in deterring future incidents. When MLB imposed the mandatory one-year suspension after the Arredondo case,97 it probably was not foreseeable that prospects would use the suspension to their financial advantage, as evidenced by Juan Paniagua and Carlos Martinez.98 The modified MLB drug policy had a positive impact in reducing performanceenhancing drug use and, similarly, stricter penalties for those caught falsifying documents should have the same deterring effect. Perhaps a three-year suspension, instead of one-year, would make the players carefully consider their actions before submitting false documents to MLB. In some cases, a three-year suspension would end the players chances of playing professionally in the United States. However, the first players under the stricter policy would be made an example of, and most likely help in curbing the fraud problem among Dominican prospects. c. Increase Education i. MLBs Education Initiative

On March 8, 2010, MLB Commissioner Bud Selig appointed former Oakland Athletics General Manager Sandy Alderson to lead a committee on reform in the Dominican Republic.99 Along with increasing investigations into the true identity of players and implementing a stricter drug testing policy,100 Alderson recognized the need for increased education among Dominican prospects.101 Before the reform, teenage prospects rarely went to class and some had only the

97 98

See Segura, supra note 4. See Badler, supra note 35. 99 See Milani, Jerry, Alderson to Oversee Reform in Dominican Republic Operations, BaseballDigest.com (Mar. 8, 2010), http://www.baseballdigest.com/2010/03/08/alderson-to-oversee-reform-in-dominican-republic- operations-2/ (last visited Apr. 20, 2011). 100 See Schmidt, Michael S., Scrutiny of Dominican Baseball Prospects is Having an Effect: Less Demand for Dominicans as M.L.B. Scrutiny Increases, NYTimes.com (Oct. 9, 2010), http://www.nytimes.com/2010/10/10/sports/baseball/10dominican.html?_r=2&pagewanted=1 (last visited Apr. 20, 2011). 101 Id.

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equivalent of a sixth or seventh-grade education.102 Under the new program, however, all sixteen (16) year-olds were required to take an academic aptitude test, with the results given to all MLB clubs.103 Furthermore, the program mandates that classes are to be given at all MLB academies on the island and that prospects will undergo regular progress tests.104 While this program was certainly a step in the right direction, stricter guidelines should be implemented in the future. For instance, requiring all Dominican prospects to have the equivalent of a high-school education will not only help them on the field (as it will enable them to learn and process instruction from coaches more easily), but it will also aid the prospects in their cultural adjustment to the United States, and prepare them for life after baseball. The author understands the challenges faced with increasing education in the Dominican Republic, and recognizes the enormous impact the new education program will have on both Dominican prospects and MLB. Increasing education may assist in the Dominican prospects realization that the buscones are exploiting them, and may enable them to keep a larger portion of the signing bonuses they receive. It is essential that MLB continues to encourage and demand an increase in education among Dominican prospects, rather than be satisfied and complacent with the considerable progress already made. ii. Dominican Republic Sports & Education Academy (DRSEA)

The Dominican Republic Sports & Education Academy (DRSEA)105 is in the planning stages, but should be the new model for well-intentioned buscones. DRSEA is modeled after the


102 103

Id. Id. 104 Id. 105 See generally DOMINICAN REPUBLIC SPORTS & EDUCATION ACADEMY [hereinafter DRSEA], available at http://www.drsea.org/index.html (last visited Apr. 20, 2011)(outlining the plans for the DRSEA and its purpose).

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Puerto Rico Baseball Academy & High School (PRBAHS)106, and aims to [give student athletes] the tools to qualify for sports scholarships at U.S. colleges and universities.107 Furthermore, [t]he academy will be able to take gifted baseball players and prepare them academically for the college classroom. The academic program will exceed the minimum requirements for college eligibility now required by the NCAA.108 Unlike the academies run by some buscones who are looking to cash in upon sending a prospect to a MLB club, the DRSEA seeks to prepare their prospects for life after baseball, and gives them different avenues for continuing their baseball career. If the DRSEA model becomes more common, Dominican prospects will not be forced to pigeonhole themselves into signing with a MLB club. By increasing education, the DRSEA aims to present their prospects with many different options: junior college in the United States, college in the United States, or professional baseball. As a corollary, MLB will most likely see a dramatic decrease in age falsification and identity fraud cases. While there will always be buscones and prospects willing to falsify documents for a large signing bonus, MLB should push for academies like DRSEA to become more commonplace. d. Change Rules of Academies i. Use the English Soccer Model

One possible change to the academy structure that may help in curtailing age falsification and identity fraud that is so rampant in the Dominican Republic would be to use an academy system similar to English soccer.109 While the English soccer model applies only to domestic

106

See generally PUERTO RICO BASEBALL ACADEMY & HIGH SCHOOL [hereinafter PRBAHS], available at http://www.prbahs.org/ (last visited Apr. 20, 2011)(outlining the purpose and mission of the PRBAHS). 107 See DRSEA, supra note 54. 108 Id. 109 See generally US Youth Training Systems vs. England [hereinafter English Soccer Academies], available at http://www.socceru.com/us_youth_soccer_training_vs_england_academy.htm (last visited Apr. 20, 2011).

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prospects (and if a similar system were to be implemented by MLB it would apply to Dominican prospects) it is worth examining nonetheless. First and foremost, note that this system would allow MLB clubs to sign players younger than sixteen (16), which would require a change to the current rules. The English soccer system allows clubs to sign players to one year contracts between the ages of six (6) and twelve (12).110 At the end of the year, the club and the player can part ways, but if the player chooses to go to another club then the new club must pay the old club a transfer fee to compensate for the time and effort invested into the player.111 At age thirteen (13), the club can sign the player to either a two-year or a four-year contract, and at fifteen (15) the club can sign the player to an additional two-year contract unless they are already on a four-year deal.112 At seventeen (17), the best players leave school to sign a two-year apprenticeship, where they start earning a living as full-time professionals.113 After this apprenticeship, at nineteen (19), players are either signed on a normal professional contract or released.114 During this thirteen (13) year period, the academies are fully funded by the pro clubs . . . the players do not pay a cent.115 Every English Premier League Club116 must have an Academy operating according to a strict set of rules.117 The objective is to ensure that players possess high skill level, and are schooled in proper self care, nutrition, character, and social skills.118 The goal is to produce intelligent, skillful players who behave as professionals, can take care of themselves outside the

110 111

Id. Id. 112 Id. 113 Id. 114 See English Soccer Academies, supra note 58. 115 Id. 116 See generally ENGLISH PREMIER LEAGUE, available at http://www.premierleague.com/ (last visited Apr. 20, 2011). 117 See English Soccer Academies, supra note 58. 118 Id.

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soccer field and who can seamlessly adjust to normal productive life after retiring from playing.119 While it may seem absurd for MLB clubs to sign a six (6) year-old prospect, this system could benefit both the player and the club in the long run. The pay back is theoretically in the form of players developed for the first team or players sold to other clubs. Since the cost of an average Premiership player is currently around $3M to $5M, all it takes to keep the academy financially viable is produce one quality player per year or one exceptional player every couple of years.120 One of the main differences between the English system and the proposed Dominican system would be that the kids in the English soccer academies live in close geographical proximity to their academy.121 The kids attend their regular school, and train at the academy with increasing regularity as they get older.122 This may be a struggle to implement in the Dominican Republic, as many parents would not want their child living hours away from home. However, many of the current MLB academies are located within an hour or two of the capital, Santo Domingo, and this could prove to be a valuable change to the current system. If Dominican kids were placed in the academies before signing professional contracts, and were exposed to proper nutrition, professional coaching, and a formal education, this would prove to be a win-win situation for all involved. Even the prospects that did not develop into professional players would be left with an education and opportunities to succeed in life after baseball. The MLB clubs, on the other hand, would have the opportunity to develop their own players from a young age and could separate the prospects from the non-prospects, all the while giving back to the country that has produced so much talent on the field.

119 120

Id. Id. 121 Id. 122 Id.

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There are challenges to implementing a system like this, and some modifications would have to be made, but it is certainly worth a closer look and could help end the age falsification and identity fraud issues currently plaguing MLB operations in the Dominican Republic. e. Other Solutions to Consider Finally, there are two other solutions that could help solve the operational problems in the Dominican Republic. First, an international draft has been considered.123 Currently, amateur players from only the United States, Canada, and Puerto Rico are eligible for the MLB FirstYear player draft.124 Until 1990, Puerto Rican players were not subject to the MLB draft, and baseball on the island flourished.125 Before Puerto Ricos inclusion, players trained at academies similar to the ones in the Dominican Republic, and they were free to test the market before signing.126 After Puerto Ricos inclusion in the draft, however, baseball academies virtually shut down because the financial incentive to train players was gone. Some argue that a similar fate would await the Dominican Republic if an international draft were to be instituted.127 By instituting an international draft, MLB may curb the age falsification problem, and even eliminate the buscones, but there may be no one left to train the players. In other words, by solving some of the problems plaguing Dominican operations, MLB may actually dry-up the talent pool.

123

See generally Mayo, Jonathan, International Draft: Easier Said Than Done, MLB.com (Dec. 14, 2009, 1:00 AM), http://mlb.mlb.com/news/article.jsp?ymd=20091213&content_id=7805266&vkey=news_mlb&fext=.jsp&c_id=mlb (last visited Apr. 20, 2011)(describing the pros and cons of an international draft). 124 Id. 125 See generally Sanchez, Jesse, Puerto Rico Wants Out of the Draft: Islands Sport Secretary Proposes 10-year Hiatus, MLB.com (Sept. 12, 2007, 8:04 PM), http://mlb.mlb.com/news/article.jsp?ymd=20070912&content_id=2204904&vkey=news_mlb&fext=.jsp&c_id=mlb (last visited Apr. 20, 2011)(arguing that Puerto Rican baseball was better off before the Islands inclusion in the MLB draft). 126 Id. 127 See generally Hoffman, Shawn, Make the World Go Round: The Sketchy Economics of an International Draft, BaseballProspectus.com (Mar. 12, 2009), http://www.baseballprospectus.com/article.php?articleid=8612 (last visited Apr. 20, 2011)(describing the pros and cons of an international draft).

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Lastly, some have argued that the international signing age should be increased from sixteen (16) to eighteen (18).128 Advocates argue that doing so would alleviate some pressure on these teenagers to support their families, and would remove the financial penalty MLB clubs currently impose on prospects for being too old.129 In comparison, some argue that this will not have any effect on the fraud issues in the Dominican Republic, as eighteen (18) will become the new desirable age and the fraud will relate to eighteen (18) years of age instead of sixteen (16).130 While both an international draft and increasing the signing age from sixteen (16) to eighteen (18) are admirable proposals, each solution could create new problems in exchange for solving old ones. Conclusion Over the last ten (10) years, MLBs efforts at eradicating the age falsification and identity fraud problems in the Dominican Republic have been fruitful. The number of fraudulent cases has decreased, but with millions of dollars at stake and the percentage of fraud still around twenty (20) percent, more needs to be done. DNA testing and bone scan procedures have proven useful in revealing fraud, but each method is incomplete and may eventually be unlawful if GINA is applied extraterritorially. Similarly, MLBs efforts in the Dominican Republic are producing positive results, but further increases in education and regulation need to be instituted in order to completely rectify the problems on the island. We need to change the direction of


128

See generally Arangure, Jorge Jr., Fixing Dominican Republic Baseball, ESPN.com, available at http://sports.espn.go.com/espnmag/story?id=3976098 (last visited Apr. 20, 2011)(proposing solutions to the problems in the Dominican Republic). 129 Id. 130 See generally Segura, Melissa, Alderson Outlines Plans for Improving MLBs Dominican Operation, SI.com (Mar. 18, 2010, 5:49 PM), http://sportsillustrated.cnn.com/2010/writers/melissa_segura/03/18/alderson.dominican/index.html (last visited Apr. 20, 2011)(interviewing Sandy Alderson, who was named by MLB Commissioner Bud Selig to spearhead efforts to clean up Dominican operations).

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whats going on here [in the Dominican Republic]. Somebody has to do something. We need help. Because I dont see us solving it ourselves.131


131

See Baxter, Kevin, Dominican Baseball Prospects Frequently Play Fast and Loose With the Rules, Los Angeles Times (Sept. 22, 2009), http://articles.latimes.com/2009/sep/22/sports/sp-dominican-baseball22/6 (last visited Apr. 28, 2011)(quoting Eddy Toledo, Tampa Bay Rays Director of Dominican Operations).

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