Nicholas Eaton, Associate Member, University of Cincinnati Law Review
Major League Baseball (MLB) pitchers have one of the toughest jobs in sports. As the opposing team scores, the blame falls directly on the pitcher’s shoulders. Throwing a baseball past world-class hitters is an almost impossible task – almost impossible. However, if these world-class hitters were to know which pitches were coming, the task begins to inch towards actually impossible. This is the situation Michael Bolsinger was faced with on August 4th, 2017 when he pitched against the Houston Astros. He allowed four earned runs in one inning and never played in the MLB again.
Upon discovering that the Houston Astros electronically stole pitch signs in 2017, Bolsinger filed suit. Bolsinger claims that the Astros negligently failed to supervise its employees “so as to avoid causing unreasonable risks of harm . . ..” His complaint began a lawsuit unparalleled in the sporting world. Unfortunately for Bolsinger, he will have a difficult time proving causation, a critical element of a negligent case.
A. Houston Astros Sign Stealing Scandal
In November 2019, news broke that the Houston Astros used cameras to steal catchers’ signs throughout their 2017 World Series championship season. The MLB’s investigation revealed that the Astros used electronics to decode signs and banged on a trashcan to communicate the upcoming pitch to the hitter. This type of “high-tech sign stealing” is explicitly against MLB rules. In response, the MLB suspended Houston’s general manager and manager for a season; stripped them of several upcoming draft picks; and fined them five million dollars. Houston was not stripped of its 2017 World Series championship.
B. Michael Bolsinger
Michael Bolsinger played for many teams within several organizations over his three years in and out of the MLB. He spent time with the Arizona Diamondbacks, Los Angeles Dodgers and Toronto Blue Jays. He was consistently sent down to the minor leagues and brought back up to the major league throughout this period. Over this time, he held a 4.93 earned run average (ERA) and a 8-19 combined record. Bolsinger was a below average pitcher working to cement his place on an MLB roster. 
2. August 4th, 2017
On August 4th, 2017, the Toronto Blue Jays faced the Houston Astros. Bolsinger was sent in during the game’s fourth inning, his team trailing 7-2. He proceeded to give up four hits, three walks, and four earned runs. Twenty-eight trash can bangs were detected over the course of this game, making this the most egregious example of cheating by the Astros in the 2017 season. According to Bolsinger’s complaint, this game was the “death knell to his career in the MLB.”
Bolsinger has sued the Houston Astros for negligence. A proper negligence claim has four elements: (1) A duty of care; (2) violation of that duty; (3) causation; and (4) injury. Two elements of negligence that require further explanation are causation and duty of care. The existence and extent of a duty of care is a factual inquiry that is heavily dependent on the circumstances. In the context of Bolsinger’s case, the duty of care would be similar to that of a negligent interference with prospective economic advantage claim. The duty of care in this circumstance is to refrain from interfering with a relationship so as to cause the plaintiff to lose the economic benefit of that relationship.
Causation is separated into two parts: Causation in fact and proximate cause. Causation in fact requires that “the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred.” Proximate cause requires the act be one that “in natural and continuous sequence, unbroken by any efficient, intervening cause, produce[d] the result complained of and without which the result would not have occurred.”
B. Bolsinger’s Negligence Case Is Not Compelling
For Bolsinger to succeed on his negligence claim, he must prove each of the four elements of negligence. While he will likely be able to prove duty, violation, and injury, he will struggle to prove causation of damages.
In order to analyze Bolsinger’s negligence claim, the Astros’ duty of care must be determined. Bolsinger’s complaint claims that the Astros “owed a duty of care to Plaintiff Bolsinger to supervise and operate Houston Astros LLC so as to avoid causing unreasonable risks of harm to Plaintiff Bolsinger.” Once again, Bolsinger’s claim is similar to a claim for negligent interference with prospective economic relations. Therefore, the Astros would be under a duty to refrain from interfering with his potential MLB contracts so as to prevent him from gaining employment in the future.
Next, the court must determine whether the Astros breached their duty of care. Bolsinger claims that by allowing their employees to make and/or aid and abet the sign stealing scheme the Astros negligently failed to avoid unreasonable risks of harm to Bolsinger. If the Astros duty of care is defined as it is above, then their actions are a breach of that duty. By stealing pitchers’ signs, the Astros were risking harm to the careers of many players. Pitchers who pitched against them would give up more runs. Batters from other teams would pale in comparison to Astros batters when seeking contract extensions. The Astros’ actions negatively affected players across the league.
Finally, Bolsinger must prove that he experienced damages and that his damages are causally related to the Astros actions. It appears that Bolsinger suffered damages. Playing in the minor leagues or overseas is far less profitable than playing in the MLB. However, Bolsinger will likely have difficulty proving that his damages were caused by the Houston Astros. Due to the fact that he was continuously sent down to the minor leagues, it could be argued that the Astros game was just a small factor in his eventual release.
The statistics show that the Astros played a part in the demise of Bolsinger’s career. His last MLB game, a very poor performance, was played in their stadium. However, this performance was one of a string of subpar performances that culminated on August 4th, 2017. Bolsinger’s ERA in 2017 was 6.31. An ERA of 6.31 was 45% higher than the league average of 4.36 in 2017. Even if the August 4th game is removed, Bolsinger’s ERA would have been 5.49, 26% above league average.
In order for the causation element to be met, the Astros’ conduct must be a substantial factor of Bolsinger’s injury and there must be no intervening causes. While the August 4th performance was certainly a factor in Bolsinger’s eventual release, he will have difficulty proving that it was a substantial factor. The MLB is the premier baseball league in the world. Performing at a below average rate can, and likely will, lead to a player’s termination. Furthermore, there are a slew of possible intervening causes for Bolsinger’s termination. The team could have valued younger pitchers in the farm system higher than him; they could have had their eye on pitchers in free agency; or they could have considered his whole season and been underwhelmed. For these reasons, Bolsinger’s negligence claim would likely lack proof of causation.
Michael Bolsinger’s career was unfairly tarnished by the cheating Houston Astros on August 4th, 2017. As a pitcher, the element of surprise is crucial to success. When this was unfairly taken away from Bolsinger against the Astros, he was annihilated. While this ended up being his last game in the MLB, Bolsinger’s negligence claim is still unlikely to succeed. Bolsinger will have the tall task of proving that the game against the Astros was a substantial factor of his termination and that there were no intervening causes. Due to his lackluster career up to that point, this is a pitch that he and his counsel will struggle to deliver.
 Michael McCann, Can a Pitcher Successfully Sue Astros for Sign Stealing?, Sports Illustrated (Feb. 11, 2020), https://www.si.com/mlb/2020/02/11/mike-bolsinger-astros-sign-stealing.
 Bolsinger Compl. 10. Bolsinger also claims unfair business practices, intentional interference with contractual relations, intentional interference with prospective economic relations, and negligent interference with prospective economic relations. Bolsinger Compl. 1. However, in the interest of a shorter blog post, only his negligence claim is discussed here.
 R.J. Anderson & Mike Axisa, Astros sign-stealing scandal: What to know about MLB’s penalties against Houston, CBS Sports (Jan. 18, 2020), https://www.cbssports.com/mlb/news/astros-sign-stealing-scandal-what-to-know-about-mlbs-penalties-against-houston/.
 Avery Yang, MLB Will Not Strip Astros, Red Sox of World Series Title, Sports Illustrated (Jan. 22, 2020), https://www.si.com/mlb/2020/01/22/mlb-will-not-strip-world-series-titles.
 See Mike Bolsinger, Baseball Reference, https://www.baseball-reference.com/register/player.fcgi?id=bolsin001mic.
McCann, supra note 1.
 See Mike Bolsinger, supra note 9.
 McCann, supra note 1.
 The average ERA across the MLB was 3.96 in 2015, 4.19 in 2016, and 4.36 in 2017. Major League Baseball Pitching Year-by-Year Averages, Baseball Reference, https://www.baseball-reference.com/leagues/MLB/pitch.shtml.
 McCann, supra note 1.
Toronto Blue Jays at Houston Astros Box Score, August 4, 2017, Baseball Reference, https://www.baseball-reference.com/boxes/HOU/HOU201708040.shtml.
 McCann, supra note 1.
 Bolsinger Compl. 8.
 Id. at 6.
 Id. at 10.
 57A Am Jur 2d Negligence § 5.
 See 57A Am Jur 2d Negligence § 6.
 Venhaus v. Shultz, No. A116433, 2007 Cal. App. LEXIS 1623, at *10-11 (Ct. App. Cal. Sept. 28, 2017).
 Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir. 1997).
 Pickett v. RTS Helicopter, 128 F.3d 925, 929 (5th Cir. 1997).
 Bolsinger Compl. 10.
 Bolsinger Compl. 10.
 McCann, supra note 1.
 Mike Bolsinger, supra note 9.
 Major League Baseball Pitching Year-by-Year Averages, supra note 13.
 Bolsinger allowed four earned runs in one third of an inning pitched on August 4th, 2017. Toronto Blue Jays at Houston Astros Box Score, August 4, 2017, supra note 15. If you remove the one third of an inning, his 2017 innings pitched would be forty-one. Mike Bolsinger, supra note 9. If you remove four earned runs, his 2017 earned runs would be twenty-five. Id. (25/41) x 9 = 5.49.
 Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir. 1997); Pickett v. RTS Helicopter, 128 F.3d 925, 929.