Guest Post: Another Point of View on Scott Boras

Our post on Scott Boras this week brought us more visitors than any other post we've ever done. It got picked up by Rob Neyer's SweetSpot blog on ESPN.com, David Pinto's Baseball Musings, Jay's Fack Youk, Jay Jaffe's Prospectus Hit and Run on Baseball Prospectus, and even made it to Camden Chat, a chatroom for Baltimore Orioles' fans. The comments, e-mails, and twitter responses were a mixed bag, but mostly favored my opinion.

But I believe that the point of the blogosphere is to have different opinions expressed--that way one can form their own beliefs. So in that spirit, after I received an e-mail by Andrew, a lawyer from Canada, telling me why I was wrong, I asked if he would be willing to pen a blog post to use as a counterpoint. Now, to let you know ahead of time, I have nothing against Scott Boras, who is--as Andrew points out--"Ruthian" at what he does. Actually, once I graduated high school, the profession I was most interested in was becoming a sports agent. But I did want to bring up what I saw as an appearance of a conflict of interest, in my opinion. Andrew disagrees and now I'm going to yield him the floor so he can tell you why in this guest blog

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Andrew and I disagree, but I thank him for giving me the platform to do so.

Ill-informed fans hate Boras. I don't understand why. The owners--you know, those kind folks with their anti-trust exemption who fought to keep baseball segregated and colluded with regularity--certainly shouldn't have songs sung for them. I didn't even take econ 101 and I know that player salaries aren't tied to ticket prices.

I am enthusiastically pro-market. Part of the market, though, is a paying talent what it can command, and thereby creating incentives for individuals to excel. One is entitled to be compensated for producing, and that's especially important when one's career is as short as a pro athlete's is. If I were a great baseball player, I would want to be represented by Scott Boras--but I would also understand what it means to hire him.

When one hires any professional, one has to determine what one's priorities are. Surely even the least lucid of us can realize that depending on where one finds oneself on that professional's food chain, one may have more or less access and service. I hope, for her sake, that I am not within the top 100 of my accountant's priorities. At the risk of stating the obvious, there is a significant benefit in hiring someone who is good at what he does. Being good at what one does is, generally, the result of experience and working hard. If one wants an agent who has forgotten more about free agency and negotiations than many will ever learn, then one accepts that this expertise comes at a price--this agent has a lot of other clients. If one wants to be showered with attention, one should find an up-and-coming agent with a tiny book.

I am confident that Boras tells the client, "I work a certain way--I don't give hometown discounts, and I always strive for top dollar. I win far more than I lose, but there is risk in this approach. However, it's the only way that I operate. If you want to stay with your small market team, the 'PA can give you a list of certified agents." What Boras offers, quite simply, is the opportunity for a player to maximize his earnings.

To force a pun, that's baseball. If one wants to sign early and stay in Minnesota or Milwaukee, one should pick a different agent. If one doesn't want to play hardball, one mustn't sign with Boras. If one has a change of heart, a contract for agency can be terminated. One of the results of Boras' strategy is that his players rarely sign early. There is risk in this approach, but it works a surprising amount of the time. Boras is Ruthian, but the Babe made outs more than 50% of the time.

In some cases, I'm not sure that there is any value in having an agent. Schilling obtained template contracts from the 'PA and saved paying a commission. If Mauer, wants to stay in the Cities, there would be a lot of merit to simply hiring a good corporate lawyer to negotiate and review the terms of his contract on an hourly basis. Even at $1,500.00/hr, and even if the process takes 100 hours, Mauer would still realize a significant savings over a paying a commission of a few percent of the total contract.

Alleging that a lawyer is knowingly and purposely putting himself in a conflict of interest is a serious allegation. I disagree strongly with Jack Marshall's argument, though I credit him for acknowledging that the issue is disputed. It would an unequivocal conflict if Jeff Moorad continued to represent players while running a team. He would be on both sides of the negotiation for parties that are adverse in interest. That is entirely different from a situation where Boras acts for two parties that are in theoretical competition, but aren't adverse in interest. Free agency is to a great extent a zero sum game. There are a set number of everyday spots that are open each off-season (though occasionally a team will 'make room'). While Damon and Holliday are both outfielders, I reject the suggestion that they competing with each other. Would Holliday have accepted a 2 year, $26 million offer? By all appearances, Damon was actually competing with Randy Winn.

The key to Boras fulfilling his fiduciary duty is that he advises each client of the risks of free agency, and of his style of negotiation. I cannot fathom that Boras doesn't do that, and the risks that his clients incur are a result of their tactical approach. Whether Boras represents Damon alone, or 100 outfielders, the risks for Damon are constant--someone else willing to play for less may take a job that could have gone to Damon.

The other live matter on the issue of conflict of interest is the fluid nature of being a sports agent. I can't speak for law societies/state bar associations of which I'm not a member, but Ontario and Alberta are quite clear that we have to distinguish to our clients when we are qualified to give professional advice as lawyers, and when we aren't. One gives legal advice when one explains the impact of a team opt-out clause for a pre-existing injury, as the Sox have in their contract with J.D. Drew. Whether or not a client is prepared to sign a contract with the full understanding of that clause isn't a legal question, it's a business decision. It's similar to deciding whether to give up a total money or years in exchange for a no-trade clause. I'd be very interested in seeing some documentation from Boras' dissatisfied clients, because I can't fathom that someone this competent wouldn't set out his advice and qualifications in writing.

The point that Andrew raised certainly warrants discussion. The real issue, though, isn't that "conflict of interest exist(s)" but rather that players should consider what their priorities are in an agent, and how much risk they are comfortable assuming. Certainty comes with a price tag.
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Thank you to Andrew for that guest post