The New York Yankees have failed to convince the US Court of Appeals for the Second Circuit to reconsider an order that will force the team to unseal a sensitive letter on electronic sign stealing. Once released, the letter could rekindle discussion about MLB’s cheating scandal and reveal names that have so far avoided public mention.
“The petition is denied,” wrote Catherine O’Hagan Wolfe, clerk for the Second Circuit, in a one-page order published last Thursday. The Yankees had asked Judges Debra Ann Livingston, Gerard Lynch and Joseph Bianco for a rehearing. Last month, the trio affirmed a 2020 order by Judge Jed Rakoff that the Yankees must turn over a letter sent by MLB commissioner Rob Manfred to Yankees general manager Brian Cashman on Sept. 14, 2017. Bianco, writing for the panel, deemed the letter to be in the public interest. As the judge explained it, the letter is a judicial document, which means it is presumptively accessible to the public. MLB had also compromised its privacy arguments by publicly sharing takeaways from the letter.
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The actual contents of the letter remain a mystery. It was filed under seal during pretrial discovery for Olson v. MLB, in which daily fantasy sports contestants insist that MLB teams fraudulently misled consumers. Had DFS contestants known that teams were cheating, they would have placed their money on different players. Plaintiff Kristopher Olson recently told Sportico that courts should “recognize the distinction between diffuse, random acts of breaking rules, like the use of corked bats by individual players, and a concentrated, coordinated campaign like the one in which the [Houston] Astros engaged and [that] MLB took steps to downplay and conceal. “
The letter could contradict or at least complicate Manfred’s public statements about the Yankees.
As told by MLB in 2017, evidence failed to corroborate allegations the Yankees had used YES Network cameras to decode signs. The team, however, was fined for improperly using a dugout phone. MLB also fined the Boston Red Sox that year. An assistant trainer had used an Apple Watch to relay signals from Yankees catchers to Red Sox players. The scandal attracted only mild public interest until 2020, when MLB levied massive penalties against the Houston Astros for a scheme involving a hidden camera and a trash can be used to signal pitches. Manfred also punished the Red Sox in 2020 because their replay operator had acted improperly during the 2018 regular season.
The Astros were vilified. The Yankees and Red Sox, meanwhile, have largely evaded meaningful rebuke.
The letter’s release could change that. It could indicate the Yankees’ conduct was worse than MLB portrayed in 2017. The letter could also mention coaches, staff and players who were alleged to have played roles in possible shenanigans.
In court documents, the Yankees express concern about the letter’s release, saying it would cause “significant and irreparable reputational harm.” MLB attorneys have similarly warned the letter could “cause potential embarrassment,” while insisting the letter’s release is motivated by “perceived shock value.”
Besides seeking a rehearing before the three-judge panel, the Yankees also asked the 13 active members of the Second Circuit to grant a rehearing en banc, where those members would review the panel. As expected, that petition was likewise rejected. The Second Circuit grants such a rehearing less than 1% of the time. In fact, the Second Circuit is the “worst” federal circuit for a rehearing en bancgranting fewer petitions than any other circuit.
The Yankees have few options remaining. They could petition the US Supreme Court to weigh in. That move would buy time but almost certainly fail. The Court agrees to review only about 1% of petitions. The odds here would seem particularly low given that multiple federal judges, of varying legal and political ideologies, have reviewed the matter and all agree the letter should be released. There has been no dissenting voice that could spark a Justice’s interest.
More likely, and as reported by The Athletic, the Yankees are expected to release the letter, perhaps as soon as this week. The letter could prove explosive but might also seem cryptic. Notably, the Yankees can release the letter in redacted form. That means they can remove names, delete or obscure titles and take other steps so long as those measures don’t, as Judge Bianco wrote, “unduly interfering with the public’s right to access judicial documents in order to address privacy concerns.”
Then again, readers knowledgeable about Yankees operations might be able to decode the letter’s signs, if you will, and figure out who’s who.
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