International Free Agents

The Trump Administration has rejected an agreement between Major League Baseball and the Cuban Baseball Federation regarding the movement of Cuban ballplayers, as Vivian Salama and Jared Diamond of the Wall Street Journal report. For the time being, the preexisting state of affairs will continue to govern any Cuban players that seek to join MLB organizations.

When the agreement was announced late last year, the hope was it would end the awkward, often-dangerous process by which Cuba’s best baseball talent made its way to the glory and riches of professional baseball. Generally prohibited from departing the island to sign with MLB clubs, Cubans wishing to play in the affiliated ranks must defect, establish residency in another country, and then seek clearance from the league. That set of circumstances — extra-legal in many aspects — leaves players exposed to human traffickers and other shadowy operators.

The new arrangement was designed with the same essential framework of MLB’s agreements with baseball leagues in Japan and Korea, with a percentage of the player’s contract to be paid as a release fee. In this case, though, the dollars were destined not for a foreign ballclub, but for Cuba’s government-run governing body, the aforementioned Cuban Baseball Federation. In negotiating an agreement involving a Cuban governmental entity, MLB had been relying upon an interpretation of the Cuban Assets Control Regulations — issued by the Treasury Department’s Office of Foreign Assets Control late in Barack Obama’s presidency — that it was permitted to make such payments despite the broad Cuban embargo.

All along, there was a risk that OFAC would reenter the picture with a reinterpretation that would preempt any agreement. That’s just what has taken place. The present administration determined that “a payment to the Cuban Baseball Federation is a payment to the Cuban government,” effectively shutting the avenue for making a deal within the existing legislative and regulatory systems.

From a hot stove perspective, the result is that a slate of international players who had been anticipating near-term signings will now remain in Cuban — unless and until they elect to roll the dice on defecting. It’s a notable change for MLB teams as they plot their international acquisitions. For the players, it’s a potentially life-changing turn of events with repercussions that can’t entirely be foreseen. There were many potential problems with the new rights transfer system that had been negotiated, but it did at least hold out the hope of all but halting the human trafficking that lies at the heart of the present state of affairs.

As the United States continues to unroll policy changes with regard to interactions between American and Cuban businesses and citizens, the latest move could have profound implications for the way that the island’s famed baseball players make their way to MLB. As Ben Strauss of the New York Times explains, the new rules — which start today — it will be permissible for major league teams (like any other employer) to hire Cuban citizens.

Under the existing scheme, Cuban players have been forced to endure a lengthy and often dangerous process not only to make it out of Cuba, but to become eligible to sign as free agents. While there are still many logistical and policy-related matters to be worked through before there is any kind of efficient exchange of talent between Cuba and the majors, yesterday’s announcement seems to remove a significant barrier from the process.

Indeed, the biggest immediate effect may be on Cubans who have already left the island and are currently waiting to reach free agency — which has previously required the establishment of residence in a third country in circumstances ripe for exploitation. In theory, those players — among them, Cuban legend Yulieski Gurriel, his brother Lourdes Gurriel, and veteran second baseman Jose Miguel Fernandez — can legally sign right now, so long as they are otherwise able to gain legal entry and work authorization, as would any other international player.

It’s likely, of course, that clubs will await some confirmation before proceeding; if nothing else, pursuant to baseball’s own rules, those players will still need to be declared free agents. Dan Halem, MLB’s chief legal officer, tells Strauss that the league is still studying the rules, and there could be a need for administrative changes before the flow of talent opens. Regardless of precisely how long it takes for the impact of the rule change to be felt, it holds out the promise of eliminating some of the worst byproducts of the convoluted prior system.

Standing alone, though, the new rules do not eliminate the incentive for defection for those ballplayers that remain in Cuba — though, presumably, they’d be able to defect directly to the United States or at least do so much more quickly. Working out a process for players still in Cuba, of course, will require more negotiation and the participation by the Cuban government. But with goodwill exchanges between MLB and Cuba seemingly proceeding nicely, it isn’t hard to imagine the parties in interest finding a way forward.