In 2016, Christopher
Correa, a former employee of the St. Louis Cardinals, was sentenced to
forty-six months in prison for violating the Computer Fraud and Abuse Act when
he accessed a Houston Astros database without authorization. However, these
were not the only charges Correa could have faced. This note uses the Correa
case to illustrate how the Economic Espionage Act can be used to prevent trade
secret theft in Major League Baseball. More specifically, this note asserts
that the sabermetric data systems used by MLB teams to evaluate and track
players are legally protectable trade secrets. Furthermore, due to the fluid
nature of the baseball analytics talent pool and barriers to civil prosecution
inherent in baseball’s structure, the Economic Espionage Act presents the best
way to combat the misappropriation of this information. The note goes on to
distinguish between teams’ off-field and on-field tactics and discusses how, if
at all, this framework should apply to the collection and use of biometric
Sports are the paradigm of competition. They are perhaps the
arenas of business in which winning is most objectively quantifiable and
competition is on display every night. On the field, competitive tactics are
expected and gamesmanship is routine. Yet behind the scenes, there is an army
of data scientists who are competing in their own way. Their competition does not
revolve around which team collects the most runs after nine innings but rather
around who can discover the most effective means of evaluating the players on
This facet of the game is no secret. However, the extent to
which some are willing to go to gain a competitive edge became strikingly
apparent in 2016, when Christopher Correa, a member of the St. Louis Cardinals’
baseball operations staff, received a forty-six-month prison sentence for
hacking into a Houston Astros’ database. The database, known as “Ground
Control,” was built by the Astros’ baseball operations department to house
scouting reports, trade discussions, proprietary statistical analysis, injury
histories, projections for players, contract information, and more.
Major League Baseball (“MLB”) has undergone a major
transformation over the last two decades. A game that once largely relied on subjective
analyses and gut instincts to assess players, professional baseball—through the
collection and study of statistical data—is now obsessed with an objective
search for truth.
This objective analysis, or sabermetrics as it is commonly known, began as a
hobby held by a few people scattered throughout the baseball world, but it has since turned into an industry-wide
practice, rapidly becoming the fixation of nearly every team in the league.
Teams now hire the most technical and scientific minds in the country, such as
NASA engineers, data scientists from leading statistical software companies, and
PhDs in cognitive neuroscience, applied statistics, and machine learning, in
order to gain any slight competitive edge in discovering the most intricate
details of a player’s ability.
Sabermetrics, named after the Society of American Baseball
Research (“SABR”), is defined as “advanced statistical collection and analysis
to develop objective knowledge about baseball for use in player evaluation and
tactical decision-making.” Collecting certain statistics, such
as batting average and earned run average, has been a part of the game since
However, for most of the twentieth century, the examination of more granular
data was only performed by “amateur statisticians from outside the baseball
establishment” and “statistically-inclined fans.”
By the end of the century, several companies, such as Baseball Prospectus and
STATS LLC, began to collect more extensive data, including the speed and type
of every pitch thrown during a game. Nonetheless, while baseball has been
played in the United States since 1840, it was not until 2003, when Michael
Lewis published the book Moneyball: The
Art of Winning an Unfair Game,
that baseball industry insiders awoke to the potential of using analytical
techniques to assess talent. Lewis’ book focused on one team, the Oakland
Athletics, as it embarked on what was seen at the time as a unique and
Now, every team relies at least to some extent on the use of analytics.
Baseball teams own many of the same types of information as
that which traditional businesses own, such as customer lists, pricing data, and
marketing strategies. These categories of information are generally considered
trade secrets when companies take reasonable measures to protect them. Unlike traditional
businesses, however, teams collect and store a plethora of data specific to the
baseball industry, including statistical analyses (such as compilations and
algorithms for new metrics),
scouting reports, trade proposals or discussion notes, playbooks, verbal or
hand signals used on the field, player skill techniques, player training
techniques, dietary and nutritional regimens, physical therapy techniques,
psychological assessment techniques, and biometric analyses.
Many people in the baseball industry assert that such baseball-specific-data,
which teams store and collect, constitute trade secrets.
Despite the many
potential trade secrets, there have not been any cases that discuss what
material qualifies as a trade secret in baseball. Although Correa misappropriated
information from Ground Control, a system that housed almost all of the Astros’
proprietary information, Correa was instead prosecuted under the Computer Fraud
and Abuse Act (CFAA)
for hacking Ground Control.
What was criminalized was the fact that he accessed the information “without
not the misappropriation of the information he obtained, and likely used, from
the hacking. Due to the lack of court decisions (criminal or civil), there is
no direct precedent holding that these types of analytics databases are in fact
trade secrets. Nor is there extensive analysis of how teams keep this data
secret and whether those controls are effective. Further, strategies the
industry and public accept as part of the competitive nature of sports, such as
on-field tactics to gain a competitive advantage like “stealing signs,” could
be more intensely scrutinized if the legal system is used to police what should
be considered fair competition in baseball.
Part I of this note will argue that the sabermetric data
systems used by MLB teams to evaluate and track players are legally protectable
trade secrets. Part II will examine the fluid nature of the baseball analytics
talent pool, and will suggest that because of this aspect of the industry, the
best way to prevent the misappropriation of these trade secrets is through
criminal prosecution under the Economic Espionage Act of 1996 (EEA).
Part III will discuss on-field strategies, arguing that although the improper
acquisition of on-field plays through tactics like sign-stealing may, in
certain cases, technically meet the definition of theft of trade secrets under
the EEA, this behavior does not warrant the imposition of criminal sanctions.
Finally, Part IV will briefly analyze future questions on the proprietary
nature of baseball data, noting that the focus will be less on sabermetric
statistical systems and more on the collection, compilation, and ownership of
I. Trade Secret Law and Its Application in Baseball
Since teams deal with many different types of information, Lara
and Nathaniel Grow surveyed the general counsels of teams across the four major
North American professional sports leagues—baseball, basketball, football, and
hockey—on what they believed to be trade secrets.
The survey, which received responses from nineteen teams, including two in MLB,
revealed that 89.47% claimed that their scouting reports were trade secrets,
78.95% asserted trade secret protection over trade proposal or discussion
notes, 73.68% asserted trade secret protection over statistical analyses, and
52.63% asserted trade secret protection over player skill development
techniques and biometric analyses.
Variations among the general counsels’ responses is likely due to the different
information-collection practices between the four major North American sports
leagues—that is, differences in the amount and type of data collected in one
sport compared to the other three sports and differences in how biometric data
is relied upon in one sport compared to the other three sports.
Given the general counsels’ apparent zeal for believing that
their scouting reports, trade proposals and discussion notes, statistical
analyses, player skill development techniques, and biometric analyses constitute
it is worthwhile to analyze whether such information actually satisfies the
EEA’s requirements for trade secret protection. Using baseball as a case study,
this note begins by exploring whether sabermetric data systems fall within the
Under the EEA, a trade secret is defined as “all forms and
types of financial, business, scientific, technical, economic, or engineering
information, including patterns, plans, compilations, program devices,
formulas, designs, prototypes, methods, techniques, processes, procedures,
programs, or codes, whether tangible or intangible,” provided that the “owner .
. . has taken reasonable measures to keep such information secret,” and the
information “derives independent economic value, actual or potential, from not
being generally known to, and not being readily ascertainable . . . by, another
person who can obtain economic value from the disclosure or use of the
While people in the baseball industry have asserted that the data they collect
and the systems they create are trade secrets,
there are almost no legal precedents that deal directly with this issue. Though
Correa was not charged with violating any trade secret laws, his case provides
insight into how baseball data could be subject to trade secret protection and
potential criminal prosecution. This note argues that much of the content
stored on sabermetric data systems, especially scouting reports and statistical
analyses of player talent, can and should receive trade secret protection under
A. An Overview of Trade Secret Law
Though laid out in its current form above, how the law,
specifically the criminal law, defines a trade secret has changed over the last
decade. To help clarify and strengthen trade secret protection, Congress amended
the EEA through the enactment of the Theft of Trade Secrets Clarification Act
and the Defend Trade Secrets Act of 2016 (DTSA).
In 1996, Congress passed the Economic Espionage Act to fill
a hole in the statutory scheme. Lawmakers recognized the necessity of protecting
the intangible assets of companies in the United States in response to the
challenges prosecutors faced in fitting the misappropriation of these assets
into statutes like mail and wire fraud,
the National Stolen Property Act,
and the CFAA, which were not designed for this type of prosecution. President Bill Clinton acknowledged
a growing need for a statute dedicated solely to the protection of these assets
through the criminal law, noting that “[t]rade
secrets are an integral part of virtually every sector of our economy and are
essential to maintaining the health and competitiveness of critical industries
operating in the United States.”
The EEA provides a fine, a prison sentence of up to ten
years, or both for individuals who steal or without authorization appropriate
trade secrets as follows:
Whoever, with intent to convert a trade
secret, that is related to a product or service used in or intended for use in
interstate or foreign commerce, to the economic benefit of anyone other than
the owner thereof, and intending or knowing that the offense will, injure any
owner of that trade secret, knowingly steals, or without authorization appropriates
. . . such information . . . shall . . . be fined under this title or
imprisoned not more than 10 years, or both.
Much of the jurisprudence that defines trade secrets relies
on interpretations under the Uniform Trade Secrets Act (UTSA),
a model state law which as of January 2019 has been adopted in forty-seven
states and the District of Columbia.
The UTSA and EEA provide largely identical definitions of a trade secret,
especially following the enactment of the DTSA.
Judicial interpretations of trade secrets under the UTSA have provided a body
of case law to guide the interpretation of the EEA.
B. Definition of Trade Secrets Under the
In order to be a trade secret under the EEA, the prosecutor
or plaintiff must show three distinct elements: (i)
the alleged trade secret falls within a listed type of information; (ii) the
owner has taken “reasonable measures” to keep that information secret; and
(iii) the information derives “independent economic value” from not being
generally known or ascertainable through “proper means.”
The threshold element, that the alleged trade secret falls
within a listed type of information, is fairly simple to meet. To fall within the EEA, the alleged
trade secret must be “financial, business, scientific, technical, economic, or
engineering information, including patterns, plans, compilations, program
devices, formulas, designs, prototypes, methods, techniques, processes,
procedures, programs, or codes, whether tangible or intangible.”
In Nat’l Football
Scouting, Inc. v. Rang,
the U.S. District Court for the Western District of Washington addressed the
question of whether scouting reports fall within the listed types of
information. Rang is the “only
reported court decision considering the status of proprietary sports-related
knowledge under trade secrecy law.”
In that case, National Football Scouting, Inc. (“National”) sued Robert Rang, a
part-time sportswriter, and the website for which he wrote, Sports Xchange, for
copyright infringement and misappropriation of trade secrets under the UTSA.
National’s business involved providing scouting reports to NFL teams. The
reports were compiled and produced by National’s own scouts. Twenty-one NFL
teams had each paid $75,000 for access to the reports. The reports assigned
each player an overall “Player Grade,” which was “a numerical expression
representing National’s opinion of the player’s likelihood of success in the
National sued Rang for writing articles which disclosed the Player Grades.
Rang argued that the Player Grades did not qualify as “information”
within the meaning of the UTSA because they were subjective opinions, rather
than “factual information.”
The court rejected this argument, saying “the fact that National has assigned a
Player Grade to a certain player is not an idea or opinion.”
Instead, the Player Grades constituted “information” under the statute.
The court believed a factual dispute existed as to whether National reasonably
kept the information secret and whether the grades had an independent economic
value. This, the court held, was a question for the trier of fact. Ultimately,
the parties settled.
While the court held that the Player Grades were
“information” under the UTSA, it did not take a stance on whether the reports would
have constituted “information” had they merely comprised a scout’s thoughts on a
given player, rather than assigning a Player Grade. It is common practice for
scouts to provide a numerical grade when assessing baseball players.
However, would scouting reports which lack numerical player values also qualify
as “information” under the EEA? The plain meaning of the term “information” and
the function of scouting information in relation to the business of running a
professional sports team suggest that scouting reports which lack numerical
player values would likely still qualify as “information” under the EEA.
The compilation of baseball statistics would also qualify as
“information”’ under the EEA. For example, Inside Edge, a baseball analytics
reviews at-bats of every player to identify and compile specific indicia useful
in determining what percentage of those at-bats lead to “well-hit” balls.
The EEA expressly includes “compilations,” as long as they meet the statute’s other
prerequisites. Further, the “method” of compiling that data (i.e., through
algorithms and code) and the “design” of that information, are also types of
information listed in the EEA’s definition of a trade secret.
Finally, most of these analyses are performed with the aid of proprietary
computer programs, which would undoubtedly qualify.
Under the EEA, the second element to qualify as a trade
secret is that the owner must take “reasonable measures”
to keep the information secret. The DTSA addresses from whom the information must
be kept secret to qualify as a trade secret under the EEA. Originally, the EEA
stated that the information must be kept secret from “the public.”
The DTSA made the definition identical to the UTSA, such that the information
must be kept secret from “another person who can obtain economic value” from
the disclosure. This narrowed the scope of
the provision, as there might be information that is commonly known within an
industry but not known to the public.
What qualifies as a “reasonable measure”
to keep information secret? Determining reasonableness usually takes the form
of cost-benefit analysis to find the optimal level of precaution that is not
overly burdensome given the risk. Although this would be fact-specific
to each case, media reports reveal that teams use the same types of protections
as other businesses in securing their materials, such as “walling off”
information from those who do not need to know it, using computer security
methods (i.e., passwords, firewalls, and surveillance), and having employees
sign non-disclosure or non-compete agreements.
Contractual provisions can be especially important in this analysis, as a lack
of a non-disclosure agreement “may alone defeat [a] trade secret claim.”
Under the EEA, the third requirement for qualifying as a
trade secret is that the information’s economic value derives from the fact
that it is not “generally known to” or “readily ascertainable” by “another
person who can obtain economic value” from the information.
Detailed scouting reports, statistical analysis, and other means of player evaluation
help teams create a more competitive product on the field. If another team
gains access to these methods of evaluation, it could recreate them at a lower
cost. If a team knows what strategy its competitor is going to use, it could
more precisely tailor its own strategy. If a competitor knows which players a
team values via its scouting reports or the type of statistics the team
measures, it could use that in trade negotiations or adopt those strategies if
they prove successful and recognize talent before others. To a certain extent,
the foregoing relies on the assumption that a more competitive team will lead
to a more profitable franchise. Although this metric is slightly undercut by
the fact that teams operate as part of a league, which has revenue sharing and
as a whole may benefit from a more even playing field,
given the expenditures teams make on personnel to create analytics databases and the fact that there are
individual revenue streams that increase when a team is more competitive, it seems fairly clear that there is
economic benefit to having these secret programs.
It may be, at first, counterintuitive to think of scouting
reports and sabermetric databases as trade secrets, especially given that all
the action being observed and measured occurs in public and is largely
preserved on video. However, the fact that the data, in the aggregate, comprises
a compilation has important implications for evaluating its secrecy. Although
each play is public information, the compilation transforms the constituent
parts, which are public, into information that gives the team a competitive
advantage and economic benefit, thereby becoming a trade secret.
That is, the analysis that goes into the making of a
statistic is what makes it a trade secret. While the Player Grades disseminated
in Rang and the analysis provided by
Inside Edge represent types of analytical compilations accessible to and bought
by many teams, teams themselves create closely guarded compilations. For
example, the Astros created an algorithm for determining when a player in the
minor leagues is ready to be promoted to the major leagues. When the
player meets the criteria in the algorithm, a green arrow appears next to that
player’s name. A grey arrow next to the player signals that the player should
be demoted, and a black arrow means the player should be cut. This system is one example of the many
ways in which teams create their own proprietary trade secrets. The
team must decide what data to collect (i.e., speed, direction, distance,
angle), how to collect it (human review, cameras, or software), and how to
combine and present it (numbers, graphs, charts, graphics, computer programs, or
symbols). Scouting reports, even if done through first-hand observation and
annotation of results by scouts, contain some of the same compilation features
as do statistics (i.e., what attributes of the player to write down and focus
on, how to weigh each of those attributes, how to present the report, and how
to measure the importance of each individual scouting report when assessing the
overall performance of a player within a larger database). The creation of
these evaluation systems all required time, money and effort, making them competitively
C. The Interstate Commerce Requirement and
Once the plaintiff has established that the information at
issue is a trade secret, the EEA has two further threshold requirements for
criminal prosecution. First, the trade secret must meet the statute’s
interstate commerce requirement.
Second, the prosecution must establish a mens rea requirement—that the actions
were taken “with intent.”
The interstate commerce requirement of the EEA has been
subject to some controversy. As the Act was originally written, the trade
secret had to be “related to or included in a product that is produced for or
placed in interstate or foreign commerce.”
The Theft of Trade Secret Clarification Act of 2012 revised this language to
its current form, requiring the trade secret to be “related to a product or
service used in or intended for use in interstate or foreign commerce.”
This amendment was passed in response to the Second Circuit’s holding in United States v.Aleynikov.
In Aleynikov, a Goldman Sachs
employee stole source code for a high-frequency trading system, which was used
to make large volumes of trades in securities and commodities. The court held
that Aleynikov did not violate the EEA because the source code did not meet the
interstate commerce requirement as it was not “produced for” or “placed in”
Much of the court’s reasoning in Aleynikov
could have applied to the information at issue here (i.e., it was for internal
use only and there was no intention to sell or license the product). However,
Congress closed this loophole by expanding the statute to cover services (in
addition to products) and by broadening the language to include products or
services intended for use in
Here, the statistical databases and scouting reports relate
to a “product” used in interstate commerce, namely the sport of baseball.
Although baseball may not be a product in the tangible sense, it is surely a
product in the same way that most forms of viewable entertainment are products.
Professional athletes playing baseball is what the teams are marketing and
selling to the public. Baseball is intended for public consumption through the attendance
of live events and the viewing of television broadcasts. Given the congressional
intent to broaden the EEA’s interstate commerce requirement, it is not a
stretch to say that the systems are intended for use in baseball, which is a
product used in interstate commerce. Further, though baseball has historically
been subject to an antitrust exemption, which was rooted in a finding that the
business of baseball was not a part of interstate commerce,
the United States Supreme Court later clarified in Flood v. Kuhn
that “[p]rofessional baseball is a business and it is
engaged in interstate commerce.”
Finally, the EEA distinguishes itself from its civil
counterpart by including a high mens rea requirement for the remaining
elements. The alleged thief must (i) intend to convert the trade secret to
the economic benefit of someone other than the owner, (ii) intend or know that the
theft will injure the owner of the trade secret, and (iii) knowingly misappropriate the trade secret through one of the
delineated unauthorized acts.
Each element requires a fact-specific inquiry.
D. The EEA as Applied to Correa’s Case
As suggested above, Correa’s case provides an illustration
as to how the EEA could apply to trade secrets in baseball. Correa was charged
with violating five counts of the CFAA. The application of criminal law to the
sports world is neither novel nor extreme, and there have been many other
instances in which the government has taken a keen interest in criminal
activity in the sports industry. For example, the federal government extensively
investigated and prosecuted the use of performance enhancing drugs.
The New England Patriots’ involvement in the so-called “Spygate”
incident garnered significant political interest, with many calling for
Currently, the Department of Justice is investigating MLB’s international
Correa worked for the Cardinals from 2009 until he was
charged in 2015. During the beginning of his tenure with the Cardinals, Correa
worked closely with Jeff Luhnow and Sig Mejdal. His relationship with Mejdal,
in particular, was contentious—the two were considered “rivals” who engaged in
In December of 2011, the Astros hired Luhnow
as General Manager. In January of 2012, Luhnow brought
Mejdal along to head the Astros’ analytics
Mejdal, a NASA engineer, was brought in to “make
sense of all the new data that [was] becoming available for assessing
When Mejdal left the Cardinals, he was directed to
hand over his computer and password to Correa.
At the time, the Astros and Cardinals were division rivals.
While Luhnow and Mejdal
were with the Cardinals, the analytics staff used a database tool called “Red
Bird Dog,” and Luhnow and Mejdal
“had clear ideas of what they wanted after using [that] system.”
At the Astros, the two went on to build Ground Control, which housed “a variety
of confidential data, including scouting reports, statistics, and contract
information, all to improve the team’s scouting, communication, and
decision-making for every baseball-related decision.” The system, which takes “variables
and weights them according to the values determined by the team’s statisticians,
physicist, doctors, scouts and coaches,” was referred to as the
“repository of the organization’s collective baseball knowledge—the Astros’
When Mejdal left to join the
Astros, he used a password similar to the one he had used while working at the
Correa guessed the new password and accessed Mejdal’s
Ground Control and email accounts.
In March of 2013, Correa viewed scouting information, including the Astros’
scouts’ rankings of all players eligible for the 2013 Amateur Draft, a weekly
digest page which listed statistics and notes on the performance and injuries
of players whom the Astros were considering drafting, other web pages
containing the Astros’ evaluations of the Cardinals’ prospects, and notes on
In June of 2013, the day before the 2013 Amateur Draft, Correa sorted the
Astros’ draft page to see which prospects the Astros rated highest, as well as
other scouting reports.
Before day three of the Draft, Correa viewed the draft page to look for players
not yet drafted, including the page of Adam Nelubowich,
whom the Cardinals drafted later that day, and three players the Cardinals had
drafted the day before.
On July 31, 2013, the day of the non-waiver trade deadline, Correa again
accessed Ground Control to view trade discussions between the Astros and other
On March 8, 2014, the Houston
Chronicle published an in-depth article about Ground Control.
In response, the Astros enhanced their security precautions by changing Ground
Control’s URL and requiring Ground Control users to change their passwords. The
team reset the database to a system-wide default password, which was emailed to
users. However, since Correa had access to Mejdal’s
email, he also gained access to the new URL and default password. Correa used
this information to access Luhnow’s account, viewing 118
web pages containing confidential information specifically relating to players
the Astros were targeting in the 2014 Amateur Draft. Correa also viewed the
“task page” for the Astros’ analytics department, which “listed the projects
that the department was researching.”
In March of 2014, Correa allegedly leaked embarrassing confidential information
about the Astros’ trade discussions to Deadspin, a sports blog. In so doing, Correa allegedly
sought retaliation for a recent Sports
Illustrated article, which praised Luhnow and Mejdal’s reportedly outstanding analytical methods and
predicted that the Astros would win the 2017 World Series.
During these unauthorized intrusions, Correa used software to conceal his
identity, his location, and the type of device he was using.
In December of 2014, Correa was promoted to Director of
Scouting, where his duties involved scouting and the amateur draft—areas in
which his access to Ground Control would have been particularly relevant. Though
the government only charged Correa with accessing Ground Control on five
occasions, the prosecution’s sentencing memo alleges that Correa in fact accessed
Ground Control on forty-eight occasions, using the accounts of five different
The sentencing memo further states that Correa improperly accessed Mejdal’s email account over a two-and-a-half-year span.
Correa claimed he was looking at Ground Control because he
believed that the Cardinals’ proprietary data had been “improperly transferred
to the Astros’ system by former Cardinals employees who had been hired by the
Astros” and asserted the Astros had
replicated “key algorithms and decisions tools” created by the Cardinals. No charges were ever brought against
Correa waived indictment and pleaded guilty to five counts
of “Unauthorized Access of a Protected Computer” under the CFAA for intrusively
accessing the Astros’ database from March 2013 to June 2014.
Correa was sentenced to forty-six months in prison and ordered to pay criminal
monetary penalties, including over $279,000 in restitution to the Astros.
In addition, the MLB Commissioner ordered the Cardinals to give the Astros
their top two draft picks in the 2017 Draft and pay the Astros $2,000,000, the
maximum punitive fine that the MLB Commissioner has the authority to direct
pursuant to the MLB Constitution.
While Correa pleaded guilty under the CFAA, could he have also
been convicted under the EEA? Correa did not appropriate the operational code
of Ground Control itself, nor did he appropriate Ground Control’s algorithms
used to evaluate input data. Instead, he took the analytical conclusions
generated by Ground Control—that is, the results
produced by the system. It seems clear that such results would fit the
EEA’s definition of a “trade secret.”
First, the content which Correa accessed falls within the
types of information listed in section 1839(3). The rankings which the Astros assigned to players whom they were
interested in drafting are analogous to those provided in Rang, and the scouting reports, trade discussions, and medical
reports that Correa accessed would qualify as “business information” within the
meaning of the EEA.
Second, the Astros took several “reasonable measures” to
keep their information secret, as required by section 1839(3). Ground Control
was not only protected by a password, but this password was reset after the Houston Chronicle article, showing that
the organization was actively vigilant in protecting its system. Additionally,
certain functions were only permitted to be used by certain employees. For
example, Correa’s bouts of unauthorized access involved intruding into the
accounts of two minor league players who, according to the government’s
sentencing memorandum, had more limited access than other personnel.
Prior to Correa’s hacking, Luhnow said that the team
was taking “as many measures as we can to protect the information,” such as
walling off access, inhibiting the ability to download the data, and logging
users’ activity on the system.
Third, the information in Ground Control derived
“independent economic value” from not being generally known or ascertainable
through “proper means.” The government argued, and the court agreed, that “the
deliverable from all of [the scouting] expenses was the information that they
put in” Ground Control.
As the government noted, in order to diminish the strong likelihood that years
and money will be fruitlessly invested in talented individuals who never end up
graduating to major-league caliber, teams have poured increasingly massive
amounts of resources into the consideration of which players to acquire. The Astros’ proprietary data that
was stored in Ground Control was only economically valuable because it was not
generally known to other baseball teams. By developing its own tools and
metrics, the Astros were able to better evaluate talent, thereby gaining a
competitive edge over other teams. Analogizing
the secrecy-based value of proprietary sabermetrics, one journalist contended
that Correa’s actions were “tantamount to stealing the secret formula for
The plea agreement asserts that the intended loss to the Astros was $1.7
Further, the data Correa accessed related to a product
intended for use in interstate commerce. As discussed above, baseball, as a
form of viewable entertainment in which tickets are sold and marketing is
conducted throughout the country, is a product of interstate commerce.
Compared to satisfying section 1839’s definition of a “trade
secret” and section 1832’s interstate commerce requirement, the EEA’s mens rea
element would likely be more difficult to prove. This may explain why the
government refrained from pursuing charges under the EEA. Correa proffered that
his intent was not to injure the Astros for his own benefit but to assess whether
the Astros had stolen information from the Cardinals.
Had the government prosecuted Correa under the EEA and had his case proceeded
to trial, Correa may have argued that he did not intend to injure the Astros or
convert it for his or the Cardinals’ benefit.
There may have been no conclusive evidence that Correa intended to injure the
That said, such intent could be inferred from the fact that
Correa allegedly leaked the Astros’ confidential trade discussions to Deadspin—a move
which inflicted foreseeable reputational damage on the Astros and seemed to
serve no purpose other than to injure and embarrass. Also, as the government
pointed out in its sentencing memorandum, the information Correa looked at did
not relate to the Cardinals, but rather included the Astros’ trade discussions
with other teams. Such trade discussions had no bearing on whether the Astros
stole information from the Cardinals, suggesting that Correa’s intent was to
injure the Astros (and not to assess whether the Astros had stolen information
from the Cardinals).
Moreover, Correa personally benefited from the hack insofar
as he was promoted to Director of Scouting in 2014. The specific content Correa
accessed in the Astros’ Ground Control database was directly related to
drafting and scouting, which were areas core to Correa’s new job
responsibilities. As the prosecution highlighted in its court filings, Correa’s
access to Ground Control gave him the ability to “corroborate his judgment
calls” by “check[ing] what another analytics-minded
In addition, Ground Control enabled Correa to know which projects the Astros
found promising and which they discarded.
Two principle questions remain. First, why did the
prosecution not bring charges against the Cardinals as well? The Commissioner
clearly saw it fit to sanction the organization through a fine and loss of
draft picks. Further, it would have been possible to introduce evidence that
Correa acted within the scope of his employment, thus making the Cardinals
liable pursuant to the doctrine of respondeat
superior. Perhaps because the government knew that MLB had its own internal
mechanisms for disciplining and fining clubs, there was less of a need for the
government to impose its own sanctions.
Second, why did the government not prosecute Correa under
the EEA? Certainly, the CFAA charge was the more straightforward claim to
pursue since the EEA has a more intricate mens rea requirement. As previously mentioned,
to succeed on an EEA charge, the prosecution would need to establish that the
defendant (i) intended
to convert the trade secret for the benefit of someone other than the owner;
(ii) intentionally or knowingly injured the owner; and (iii) knowingly misappropriated the trade
secret through one of the delineated unauthorized acts.
Further, the prosecution would have had to prove that the content which Correa
accessed on the Astros’ Ground Control constituted a trade secret. It is
possible that the Astros were reluctant to reveal information about Ground
Control, especially given the media scrutiny. Indeed, the prosecution “agreed
to a more restrained sentence,” including the decision not to add additional
charges such as aggravated identity theft,
and noted that the plea agreement was “the product of extended negotiations
between the parties, both of whom made concessions over several months.”
While the prosecution specifically noted that they chose not to charge Correa
with aggravated identity theft, there is no discussion of the EEA. Declining to
charge Correa under the EEA may have been part of the prosecution’s strategy of
taking a lenient posture in order to reach a plea deal.
II. There Are Policy Reasons to Apply the Economic Espionage Act to Trade Secret
Theft in Baseball
Ground Control is not the exception in the baseball
industry. Many teams have similar databases that house information used to make
player-related decisions, including the Cardinals (who have since moved on from
Red Bird Dog but refuse to disclose the name of their new system),
the Boston Red Sox (Beacon),
and the Cleveland Indians (DiamondView).
Correa was charged under the CFAA for accessing the Astros’
database “without authorization.” In so doing, the prosecution neglected the
heart of the wrong Correa committed. The prosecution failed to address the true
focus of Correa’s misdeeds—not the means of
accessing the information (a problem which brings to mind questions of password
sharing discussed in United States v. Nosal),
but the proprietary nature and use of
the information itself. This point is underscored by the fact that Correa
accessed Ground Control not via the use of technical skill but rather by
receiving Mejdal’s password when Mejdal
turned over his computer upon leaving the Cardinals. Because Mejdal failed to significantly change his password, Correa
had an easy means of entry.
Correa’s case provides an important lesson concerning the
nature of the intellectual property risks which baseball teams face. The main
threat is not from “outside” hackers who illicitly access computer databases but from those already embedded within
the industry who impermissibly use
secret information. Accordingly, the EEA, which focusses on the impermissible use of secret information, addresses the
risks faced by baseball teams more directly than does the CFAA, which focusses
on the illicit access from outside
hackers. The importance of this shift is driven home by a few considerations.
A. The Fluidity of Personnel in Baseball
Creates a High Risk for Misappropriation
While employee turnover is a common feature of many
industries, the fluidity of baseball operations staff is practically a
definitional feature of the baseball industry.
Just as a player is traded from team to team, front office staff routinely move
from team to team as well. The Milwaukee Brewers’ baseball operations
department provides one example. The team’s current General Manager, David
Stearns, joined the Brewers from the Houston Astros, and he had previously
worked for the Cleveland Indians, New York Mets, and Pittsburgh Pirates. The
team’s Assistant General Manager, Matt Arnold, had stints with the Tampa Bay
Rays, Los Angeles Dodgers, Texas Rangers, and Cincinnati Reds. The team’s
senior advisor, Doug Melvin, had prior experience with the Rangers, Baltimore
Orioles, and New York Yankees. Taken together, Stearns, Arnold, and Melvin alone
have inside experience with one third of the league, including two division
An examination of the thirty General Managers at the start
of the 2018 season reveals that nine have worked for four or more teams, and
thirteen have worked for two or three teams.
While that leaves eight General Managers who have only worked for one franchise,
every team has baseball operations department staff with experience working for
This “incestuous shuffling of scouting and front office
talent” poses a serious risk to teams that have developed proprietary data
systems. The information one team has in
assessing players is directly applicable to the core business of a competitor
At first glance, increasing criminal enforcement of trade
secret laws produces undesirable consequences, such as a restricting employee
mobility. Limits on employee movement within an industry can have “detrimental
effects on innovation, market competition, and economic growth,”
because preventing “talented individuals from standing upon the shoulder of
giants, sharing knowledge, and making use of their human capital,” harms
Thus, perhaps using the CFAA would be less detrimental to employee mobility and
the cross-pollination of ideas because the CFAA focuses on the access to that
information rather than how it is used. However, as discussed above, Correa’s
case illustrates why the CFAA is inadequate on other grounds. The statute’s vague
notions of what constitutes “hacking” fails to address what society wishes to
express as the true harm of Correa’s actions. We do not want to punish Correa
solely because he guessed a password. Rather, we want to punish Correa because
he used that password to give his team an illicit and illegal competitive
Further, concerns over the EEA restricting employee mobility
in baseball are overstated. First, because the EEA includes such a high mens
rea requirement, trade secret prosecutions would be brought sparingly in
baseball. Under the EEA, the prosecution must establish as to each element of
the crime that the defendant (i) intended to convert
a trade secret to the economic benefit of someone other than the owner, (ii)
intended or knew that such conversion would injure the owner of the trade
secret, and (iii) knowingly misappropriated the trade secret through one of the
delineated unauthorized acts.
Given the EEA’s demanding mens rea requirement, prosecutors will likely only go
after those with a truly “evil-meaning mind.”
That is, employees moving between organizations without “evil-meaning minds”
will not have to fear prosecution. Still, as with any criminal statute,
prosecutorial discretion will ultimately reign supreme on when and whether
these cases will be brought.
Second, baseball teams already
have internal mechanisms in place to stifle employee fluidity and movement,
meaning that any chilling effect on employee mobility from the EEA would be
relatively unpronounced. Among other mechanisms, teams require employees to ask
for permission before interviewing with another MLB team. These rules stem from
the prohibition against tampering “with negotiations or dealings respecting
employment” found in the Official Professional Baseball Rules Book. The rule
[T]here shall be no
negotiations or dealings respecting employment, either present or prospective,
between any player, coach or manager and any Major or Minor League Club . . . unless
the Club or baseball employer with which the person is connected shall have, in
writing, expressly authorized such negotiations or dealings prior to their
On its face, the provision
extends to “managers,” a term which, along with individual team policies, could
be and has been broadly interpreted to encompass a host of employees. Although individual teams’ employee policies are generally not public information, there have been some
media reports of teams amending their employee policies in response to
employees getting poached by other teams. For example, in 2011, the Toronto
Blue Jays amended their employee policy so that employees in their baseball
operations department would not be granted permission to interview with other
teams for positions that did not represent a promotion from their current
position. Teams generally have a “widely observed policy of letting
other clubs interview their employees for positions that would represent promotions.” Even so, in some rare cases teams have exercised this
power in restricting employees from interviewing with other teams even if the
employee would be offered a promotion. Given the general trend of vast movement of executives
between teams, this system still seems largely perfunctory. Nonetheless, the
system shows that the industry is trying to put its thumb on the scale against
employee movement, thereby overshadowing any theoretical chilling effect the
EEA may have on employee mobility.
Third, even assuming that the EEA would stymie employee
mobility, this would not necessarily harm the baseball industry. Limiting
employee fluidity may in fact be healthy for the industry. Sports are built on
the notion of discovering who has the best competitive strategy and advantage.
Sharing ideas between teams breaks down the fundamental competitive fabric and
function of the system. Unlike industries which may provide for a more concrete
connection to economic growth, public utility, or the public good, sports are a
gratuitous demonstration of who can outcompete whom, who can come up with the
best strategy, and who can win a game. Professional sports are built on the
fundamental idea of secret gamesmanship. Unlike in other industries where
employees working together across companies may enhance the public good, employees
sharing secrets in sports undermines the gamesmanship of the sport, harms the
public’s confidence in the integrity of the game, and reeks of collusion. Furthermore,
the confined and unique nature of the sports industry lessens costs to
innovation that may be more harmful in other settings.
The Correa case is one example of the effects of employee
turnover, both from a psychological and competitive perspective. Correa’s
psychological paranoia resulting from Luhnow and Mejdal’s departure allegedly led him to access Ground
Control. It was not ludicrous of Correa to worry that Luhnow
and Mejdal may have taken proprietary information
one commentator noted, “the secrets were inside their heads.”
Even a Houston Chronicle article that
predated the Correa case alluded to this phenomenon, noting that “were a member
of the Astros front office to leave, some of the team’s operating secrets would
leave with them.”
Moreover, the Correa case illustrates what a competitor can
do once this type of data is acquired. Among numerous occasions, Correa accessed
Ground Control on three key instances: right before and during the 2013 Amateur
Draft and the day of the non-waiver trade deadline. By accessing Ground Control
on these dates, Correa was able to see the players in which the Astros were
interested as well as gain more information in assessing the Cardinals’ own
picks. For example, Correa accessed scouting information for a pitcher, Marco
Gonzales, who was the Cardinals’ first-round draft pick.
It remains to be seen whether teams will take the Correa case
as a cautionary tale. The Commissioner, Rob Manfred, insinuated that there must
be a shift in the way teams think about guarding proprietary data, noting that
“30 years ago intellectual property in this business was what some GM carried
around in his head and he was going to take it with him when he left . . . . There wasn’t much you could do about that.
Today the business has changed.”
Implicit in the Commissioner’s statement is an acknowledgment that some secrets
cannot be kept simply due to the fluidity of the industry. His statement points
to a worry of hackers accessing data, not leaks from a team’s own employees.
However, the idea that the threat does not come from employees changing teams
is misguided, as Correa was only able to gain access to the Astros’ database because
Mejdal gave Correa his old password.
Luhnow himself condoned some type
of misappropriation, saying “if someone leaves, they’re allowed to take . . . anything
they remember in their head.” 
The Director of Baseball Research for the Minnesota Twins echoed this
sentiment, saying “if they can remember it you cannot stop them from taking
Accordingly, some argue that the EEA does criminalize “theft
The idea of theft of trade secrets by memory is not wholly foreign. Under state
law, several state courts have held that memorizing trade secrets constitutes a
basis for civil liability.
For example, in Stampede Tool Warehouse,
Inc. v. May,
former employees of an automotive equipment distributor argued their “taking”
of the company’s customer list could not be a violation of the Illinois Trade
Secrets Act because
they memorized the list instead of physically or digitally taking the
information. The court disagreed, holding: “[a] trade secret can be misappropriated
by physical copying or by memorization. . . . Using memorization to rebuild a
trade secret does not transform that trade secret from confidential information
into non-confidential information.”
Though state courts, under state trade secret laws, have imposed civil
sanctions on those who misappropriate trade secrets via memorization, to date, criminal
liability has been mostly limited to theft of information in a tangible medium.
Nonetheless, the literal language of the EEA suggests that
prosecuting theft by memorization could be even easier than prosecution under
most state trade secret laws. First, the definition of trade secrets under the
EEA is broader than that of the UTSA. The EEA says information can be a trade
secret “whether or how stored, compiled,
whereas the UTSA lacks such elaboration.
The fact that a trade secret need not be stored or memorialized under the EEA
points to an expansive definition of intangible objects as trade secrets.
Further, the EEA provides that one who “communicates or conveys such
information” without authorization, has committed a prohibited activity.
This suggests there is no requirement that a person must physically or
electronically take trade secrets to be prosecuted under the EEA. The UTSA
contains no such language. Thus, the EEA seems to contemplate the risk of
misappropriation via memorization more than state laws do. Further, despite the
fact that the statute has undergone numerous amendments since its enactment,
Congress has done nothing to clarify this potential ambiguity.
Still, although the language of the EEA is amenable to criminalizing
the memorization and disclosure of trade secrets, the EEA—in practice—has not
been used to prosecute such conduct (perhaps because criminal sanctions for
this type of misappropriation would “unduly endanger legitimate and desirable
Turning to the EEA’s legislative history, theft by memory was not the type of
misappropriation Congress had in mind.
Although a section of the EEA was removed during reconciliation which said that
“the general knowledge and experience that a person gains from working at a job
is not covered,”
this language was removed because Congress found it “unnecessary and
Remembering information from one’s previous job is often an incidental fact to
employee movement, and society may not view this behavior as culpable enough to
warrant criminal sanctions.
Coupled with the lack of prosecution under the EEA for trade
secret theft by memorization, baseball industry executives have taken a
seemingly permissive attitude towards such conduct, thereby creating
uncertainty as to when society should deem this behavior wrongful. Limited
information sharing is tolerated in baseball culture. For example, one unnamed
R&D Director noted that scouts often trade advance reports in exchange for
favors or simply as an act of kindness among industry friends.
Teams openly admit that the reason they hire analysts is often because of the
projects said analysts have worked on with a competitor.
While baseball executives have deemed some information sharing impermissible, where
they seem to draw the line (as to what trade secret misappropriation they
consider wrongful versus what they consider permissible), they seem to do so
arbitrarily with no grounding in any legal framework. For example, while one
unnamed executive said that copying source code to a Dropbox would constitute
prosecutable behavior, they opined that if a developer still had access to code
in his or her email and used that for a new team, that would be a “gray area.”
This permissive approach is misguided. Uncertainty as to
conduct that companies deem improper has a detrimental effect on ex ante
behavior and destroys any prospect for notice or ability to shape expectations
as to what type of information teams value, what type of conduct is permitted,
and what employees can take with them should they—or perhaps more accurately,
when they—switch employers. The necessary normative guidance that shapes
employee behavior is lacking in the baseball industry, so the threat of
criminal prosecutions may be necessary to discourage misconduct that harms
competition and fair play, on and off the field. Accordingly, the EEA can and
should provide guidance to employees over what type of behavior should be
B. How Disputes Are Resolved in the Absence
of Criminal Sanctions
A wide variety of internal disputes in MLB are subject to
arbitration clauses. If the controversy involves disciplining a player, the
league is required to go to arbitration as prescribed in the collective
bargaining agreement with the MLB Players Association.
For disputes involving two teams, the Major League Baseball Constitution (“MLB
Constitution”) sets forth arbitration procedures. The latter is more applicable
for cases of trade secret theft. The MLB Constitution states:
All disputes and controversies related in any
way to professional baseball between Clubs . . . (including . . . owners,
officers, directors, employees and players) . . . shall be submitted to the
Commissioner, as arbitrator, who, after hearing, shall have the sole and exclusive
right to decide such disputes and controversies and whose decision shall be
final and unappealable.
The Commissioner also has the separate power to impose
punitive action on “Major League Clubs, owners, officers, employees or players”
for any conduct “deemed by the Commissioner not to be in the best interests of
Any action a team might seek to take against another team
for the misappropriation of trade secrets by a former employee (i.e., under a
state trade secrets law) would be subject to the arbitration clause of the MLB
Constitution. Because teams are precluded from entering the courts to
adjudicate these disputes, criminal law, where appropriate, could fill the gap.
The fact that there is a separate system for internal discipline may lead some
to believe that the need for criminal prosecution is reduced (or perhaps
completely eliminated), as the league has come up with its own way for handling
these types of disputes. However, the record of punishments imposed upon teams
under the arbitration framework is sparse and opaque,
and the Commissioner is under no duty to disclose the punishments imposed. Arbitration eliminates the advantage of the public process and
transparency the legal system brings to the resolution of these disputes. Further,
the standards in a criminal trial (i.e., beyond a reasonable doubt) in
conjunction with the extensive mens rea requirements (especially for the EEA)
allow for a more rigorous and thorough investigation of the issue than does
private arbitration between teams.
Unlike civil disputes which fall within MLB’s mandatory arbitration
rules, criminal prosecutions under the EEA would be adjudicated in the courts. In
failing to prosecute EEA violations in the context of baseball, prosecutors
have, in effect, empowered MLB to define the scope of trade secret law in
baseball and to relegate such disputes to private arbitration. This is contrary
to the will of the legislature, which has elected to make trade secret theft a
crime. As discussed above, baseball teams—many which feel powerless to stop the
sharing of proprietary information in the face of the industry’s employee
fluidity—generally take a permissive attitude towards information leaving an
organization when employees move teams. Where a private industry feels
powerless to stop wrongful behavior is precisely where the criminal law should
step in, not where the criminal law should stand down. Section 1832 of the EEA
was written with this kind of misappropriation in mind. The importance of this
information was underscored by Senator Herbert H. Kohl, when he said: “[B]usinesses spend huge amounts of money, time, and thought
developing proprietary economic information . . . . This information is
literally a business’s lifeblood. And stealing it is the equivalent of shooting
a company in the head.”
Teams should not resign to letting their trade secrets, into which they have
invested time and money, be taken to other teams. There may be more of a
“league-think” attitude in baseball as opposed to other industries since each
team is part of a larger collective, but undermining the competitive nature of
the sport by allowing employees to bring proprietary information with them when
they leave a team will eventually disincentivize teams from investing in these
types of program and harm the league more than help it.
Finally, the reality is that prosecutors tend to use the EEA
sparingly, often only in “egregious and ‘open-and-shut’ cases.”
The Correa case likely meets the elements set out by the EEA and would have
been a good opportunity for the government to use the EEA in a high-profile
case to both publicize the EEA and more concretely broaden trade secret
protection in sports.
C. Conventional Methods of
Protecting Trade Secrets Are Ineffective
Though teams use many conventional tactics which qualify as
reasonable precautions to keep information secret under the EEA, such methods are
inadequate to stop the misappropriation of proprietary information on their own.
One tactic that teams take is walling off certain information from certain
This approach has several pitfalls. First, it does nothing to address what
occurs when the General Manager, who is not walled off from any information,
moves teams (which, as discussed above, is common practice). Second, creating
“information silos” is bad for cooperation and employee morale.
It also leads to fewer people making more decisions and increases the
likelihood of error.
Third, the baseball industry is highly reliant on the use of interns. The sheer
number of low level analysts who cycle through an organization makes walling
off difficult. As one former Yankees baseball operations intern noted, the
number of interns was often so high that there were “more interns than office
Further, as fewer (or no) criminal prosecutions are brought, the onus will be
on the team to come up with more effective ways to prevent the misappropriation
of proprietary information. As a result, teams may wall off more data from
certain employees, stifling an organization’s synergy and ability to perform to
its full potential.
Alternatively, teams may turn
to contract law. The two types of contractual provisions generally used to
protect trade secrets—non-disclosure agreements and non-compete agreements—may be
inadequate in the context of professional baseball. Non-competes are especially
problematic since they receive vastly different treatment from state to state.
This could put teams in states which generally prohibit non-competes, such as California
(where five teams, or one sixth of the league,
are located), at a significant disadvantage. Further, a breach of these agreements would not be
adjudicated in the courts. As mentioned above, disputes between teams (for
example, an employee disclosing a trade secret in violation of a non-disclosure
agreement) are subject to the MLB Constitution’s mandatory arbitration clause. Accordingly,
inter-team disputes over non-disclosure agreements would not receive the
protections and additional sanctions available through the legal system.
III. On-Field Tactics
One commentator called Correa’s actions a “high-tech version
of what’s been going on forever in baseball—stealing signals.”
This comment illustrates the potential for complex legal questions to arise if
the government more aggressively prosecutes the misappropriation of information
in this context. In baseball, the ubiquity of sign-stealing has essentially
been baked into the game.
In baseball, a sign is when a manager, coach, or player performs a series of
physical movements (i.e., touching his hat, nose, or ear) to instruct the player
to run a certain play (i.e., stealing a base or putting down a bunt). Though in some situations, stealing
signs could technically meet the standard under the EEA or other trade secret
statutes, such on-field tactics should not be subject to adjudication in the
A. Non-Verbal Signals Could Meet the
Definition of a Trade Secret
The EEA definition specifically provides that the
information does not have to be tangible. Though this was likely added to
address digital forms of information, hand signals used during a game are a
type of intangible business information. Although the signal is displayed in
public, the meaning of the signal is not public information nor is the timing
as to when the play will be deployed. The secrecy is key to the successful
implementation. If a team knows what is coming, it can prepare to counteract
that move. Some coaches create decoy signs in which they add a slight variation
to the sign so the player knows that play should not actually be implemented.
This can help assess the extent to which the signs have been compromised. The
timing is also imperative. Even if a player can anticipate what type of pitch
will be thrown, the timing of knowing exactly when that pitch will be thrown is
where the value of the secret lies. Teams “closely guard . . . the various
signals (hand, verbal, or otherwise) used by coaches to relay play calls to
players during a game.”
Does a team stealing an opposing team’s signs constitute
misappropriation of a trade secret within the meaning of the EEA? If the player
notices that a change-up is thrown every time the catcher puts down four fingers
and communicates that to the batter while he is standing on second base, did he
knowingly steal information? This scenario likely fails to meet the requirement
of misappropriation. Rather, it is more akin to reverse engineering. Reverse
engineering is when one “start[s] with [a] known product and work[s] backward
to divine the process which aided in its development or manufacture.”
Here, the player used public information and decoded what the signal meant
based on his powers of observation, thereby not acquiring the secret by
Although stealing signs in the manner described is technically “sign-stealing,”
it is very common and is not something the criminal law or government should
have a hand in.
However, a distinction must be made between signs that are
stolen via the naked eye and signs stolen via the aid of other devices. There
have been several cases of “sign-stealing” in which teams used more
sophisticated means of acquiring the signs than merely observing signals and
their outcomes. Teams have used various technologies and devices to decode or
intercept signs, such as the use of video cameras or binoculars. In football,
where teams communicate plays via electronic headsets, some teams have used
electronic means of eavesdropping on these conversations. While non-video
sign-stealing is an accepted part of the game, the use of other devices has
been treated more seriously. In fact, while there is no official rule against
sign-stealing in the MLB Rulebook, MLB issued a memo to clubs in 2001
specifically prohibiting the use of electronic equipment in connection with
(and the MLB Commissioner can punish teams for any conduct that is not in the
“best interests” of baseball under the Rule Book).
This prohibition against the use of other devices in connection with
sign-stealing was reiterated by Commissioner Manfred in 2017.
Another example comes from professional football, where the New England
Patriots videotaped New York Jets coaches sending signals to their players
during a game. It was not the stealing of the signs that got the Patriots in
trouble but the fact that they did so using a camera.
In 2017, the Yankees filed a claim with the Commissioner
alleging that members of the Red Sox staff watching the game in the clubhouse
used Apple Watches to communicate with training staff in the dugout about what
signs the Yankees were using. Through a series of signals, the Yankees further
alleged, the Red Sox training staff in the dugout then communicated this
information to their players at the plate. The Red Sox filed a claim in
response alleging that the Yankees used its camera from its regional sports
network, YES, to steal signs during the game as well. Both teams were fined an
“undisclosed amount” by the Commissioner.
B. The Legal System Should Not Be Involved in
Adjudicating Disputes over On-Field Misappropriation
On-field tactics like sign-stealing should not be subject to
the criminal law, whether it is done with the naked eye or with the help of an
electronic device. This is because there is a difference between illegal
behavior and “gamesmanship.”
Unlike the stealing of sabermetric data or scouting reports, which have a corollary
to the broader business world and are akin to the types of material Congress
sought to protect when enacting the EEA, policing what is “against the rules”
in a sporting event is no place for the judiciary. Sign-stealing is not only a
common practice but has also been “lauded as good coaching.”
As one law professor argues, “nothing done on the field of play is cheating.
What happens on the field, even if it violates the rules of the game, is still
Questionable on-field tactics—even when done through
sophisticated means like cameras or other equipment—are more appropriate for
the disciplinary mechanisms built into the league’s arbitration forums. As it
relates to on-field play, some level of “cheating” is accepted, and it should
be up to those in charge of policing the sport, not judges, to delineate what
Additionally, the sign must “derive independent economic
While stealing signs can give teams a meaningful competitive edge
and some commentators believe “a sports play can be just as valuable to a
sports team as a product, design, formula, or process may be to a manufacturing
corporation or product developer,”
it would be more difficult to quantify how much a specific play is “worth” to
the business. In contrast, the time, money and effort put in to creating
analytical databases is easier to calculate and more congruent to what trade
secret law was designed to protect.
Thus, a line should be drawn between “conduct primarily affect[ing] the integrity of the game” and conduct relating to the
business of the enterprise and the information and programs a team creates,
which “more closely align with business concerns.”
In his note, Andrew Barna puts forth several other
policy reasons against adjudicating sign-stealing in the courts, including the
fact that signs can be changed easily and at a minimal cost, the customary
nature of sign-stealing within the game, and the Commissioner’s ability to
impose penalties—such as loss of draft
picks—which courts may not impose.
IV. The Future of Sports Data
The data that Correa accessed included several players’
private medical records. Though keeping medical records is nothing new, teams
have been pouring more resources into refining and leveraging this type of
data. Every team now has in-house sabermetricians,
meaning the competitive advantage teams once gained from using sabermetrics has
been reduced. As one consultant noted, “by the time someone has taken a
statistical method elsewhere, has been able to implement it and is in a
position to use that information to influence the decision-making of other
teams, we would probably be onto the next thing.”
While sabermetric analysis has become the lifeblood of every team, injury
avoidance mechanisms have become a greater priority.
To that end, teams have turned to biometric data to recapture the competitive
edge that was once secured through the early adoption of statistical analysis.
If teams can better harness data to identify the factors
that put players at risk for injury, they will have a significant advantage. As
injuries derail careers (and cost teams millions of dollars), any informational
edge in preventing them is coveted. One focus has been on the jarring increase
in tears in the ulnar collateral ligament (“UCL”) of pitchers. UCL tears take on average
a period of twelve to sixteen months for recovery, but they can take as many as
thirty months. These injuries “keep a
tremendous amount of money in the dugout.”
The monitoring systems many teams are beginning to use are
extensive and invasive. For example, the Seattle Mariners work with Fatigue
Science to monitor player sleeping habits. Players wear wristbands, which were
originally developed by the U.S. military to measure fatigue in pilots and
soldiers. Teams “speak only in vague
terms about their efforts, fearful of publicizing any experiment that could
become a competitive advantage,” which shows that teams are taking steps to
keep these procedures secret and see some economic value in them. Other examples include the
use of harnesses to document “heart rate variability, respiration rate,
activity and calories burned”
and arm sleeves embedded with 3D sensors to measure the force on the elbow
joint of each throw.
The collection and analysis of athletes’ biometric data
raises ethical and privacy questions that are outside the scope of this paper.
For example, should employers be allowed to keep this kind of information
private if it could lead to innovative breakthroughs in preventing injury in
the future? If a team discovers a way to minimize or completely avoid the
prevalence of a certain kind of injury, should there be a duty to disclose this
information so players can protect themselves?
What are the ramifications if this information gets stolen? Should the
precautions employers take to maintain the secrecy of this data differ from
those taken for their normal statistical talent evaluations given the private
nature of the data collected?
The collection, disclosure, and storage of biometric data
would likely implicate other federal laws such as the Health Insurance
Portability and Accountability Act of 1996 (HIPAA)
and the Genetic Information Non-Discrimination Act of 2008 (GINA).
Further, some states, such as Illinois, have enacted laws relating to employer
collection of biometric data. The Illinois Biometric Information Privacy Act
(BIPA) requires private entities to “store, transmit, and protect from
disclosure all biometric identifiers and biometric information using the
reasonable standard of care within the private entity’s industry.”
BIPA and similar laws could require teams to implement higher safeguards for
the protection of player biometric data than merely protecting their databases
with passwords, lest they be subject to liability for inadequately securing biometric
data. As long as medical information is housed in the same place as other
as was the case with Ground Control, teams should be motivated to strengthen
the precautions they take for all their collectively-stored property. As the gathering
of this data becomes more widespread and the benefits of its collection become
clearer, the law will need to confront novel questions relating to protecting
Although Correa was not charged under the EEA, he was ultimately
sentenced to a significant amount of time in prison. Nonetheless, the changes
over the last two decades in baseball—which have transformed the industry into
one obsessed with the collection and analysis of data—show the need for greater
legal protection of expensive and labor-intensive proprietary systems, such as
Ground Control. Though teams take a somewhat relaxed attitude toward the
realities of information sharing when employees switch teams, stronger trade
secret protection in baseball is necessary to maintain the public’s confidence
in the integrity of the game. The EEA provides one way for the government to
stop the misappropriation of this kind of information as personnel move from
team to team. The criminal law may not have a place on the baseball field, but
it certainly has a place inside the office.
 Lara Grow & Nathaniel Grow, Protecting Big Data in the Big Leagues:
Trade Secrets in Professional Sports, 74 Wash.
& Lee L. Rev. 1567, 1575 (2017) [hereinafter Grow & Grow] (“[P]ractically
every team in MLB today utilizes sabermetric principles to at least some extent
. . . .”).
Id. (“[P]ractically every team in MLB today utilizes sabermetric
principles to at least some extent . . . .”).
See United States v.
Nosal, 844 F.3d 1024, 1042-43 (9th Cir. 2016)
(customer lists), In re Dana Corp., 574 F.3d 129, 152 (2d Cir. 2009) (pricing
data), Optic Graphics, Inc. v. Agee, 591 A.2d 578, 586 (Md. Ct. Spec. App.
1991) (marketing strategies).
 Statistical analyses include, for example,
the calculation of probabilities for defensive positioning, which has led to
the proliferation of the infield shift. The infield shift typically involves
moving infielders away from their standard positions to better account for a
batter’s tendency to put the ball in play on one side of the field. For a brief
discussion of the infield shift, see David Waldstein,
Who’s on Third? In Baseball’s Shifting
Defenses, Maybe Nobody, N.Y. Times
(May 12, 2014), https://www.nytimes.com/2014/05/13/sports/baseball/whos-on-third-in-baseballs-shifting-defenses-maybe-nobody.html.
& Grow, supra note 4, at 1605 (surveying the general counsels of
teams across the four professional sports as to what categories of information
they deem be trade secrets).
 Information at 2, 5, United States v.
Correa, No. 4:15-CR-00679 (S.D. Tex. July 21, 2016) (charging Correa with
violating 18 U.S.C. §§ 1030(a)(2)(C), 1030(c)(2)(B)(iii)).
 18 U.S.C. § 1030(a)(2)(C) (“Whoever
intentionally accesses a computer without authorization . . . and thereby
obtains . . . information from any protected computer . . . shall be punished
as provided in subsection (c) of this section.”).
 Economic Espionage Act of 1996, Pub. L. No.
104-294, 110 Stat. 3488 (codified as amended at 18 U.S.C. §§ 1831-1839).
 This will examine only trade secret law in
the United States. There is one baseball team in Canada, the Toronto Blue Jays,
and thus Canadian law could be implicated. However, for the purposes of this
paper, only provisions of U.S. law will be examined. For a brief summary of
Canadian trade secret protection in this context, see Grow & Grow, supra note 4, at 1599-1601.
 Of the nineteen respondents, two responses came from MLB, seven from
the NBA, four from the NFL, and six from the NHL. Each sport has different
approaches to the use of data, specifically biometric data. Players in the NHL,
NBA, and NFL have been more outspoken with privacy concerns relating to the
collection of biometric data and have sought to restrict the use of biometric
devices during games. See, e.g.,
Jeremy Venook, The
Upcoming Privacy Battle over Wearables in the NBA, Atlantic (Apr. 10, 2017), https://www.theatlantic.com/business/archive/2017/04/biometric-tracking-sports/522222/. When it comes to collecting analytical
material in general, sports have relied on analytics at different paces. For
example, the NFL has “lagged behind other professional leagues amid an
otherwise widespread analytics revolution . . . .” Kevin Clark, NFL’s Brewing Information War, Ringer (June 22, 2016, 1:13 PM), https://www.theringer.com/2016/6/2/16077478/nfl-information-war-data-advanced-stats-73b6eee2d39f.
See Lederer, supra note 16 (referring to the detailed formulas in Nate Silver’s analytics system, PECOTA, as a trade secret); Vrentas,
supra note 16(quoting Ben Baumer
saying teams are guarded about the statistical analyses they engage in because
“it’s trade secrets”).
 Theft of Trade Secrets Clarification Act of
2012, Pub. L. No. 112-236, 126 Stat. 1627 (codified as amended at 18 U.S.C. §
 Defend Trade Secrets Act of 2016, Pub. L.
No. 114-153, 130 Stat. 376 (codified as amended in scattered sections of 18
R. Mark Halligan, Revisited 2015:
Protection of U.S. Trade Secret Assets: Critical Amendments to the Economic
Espionage Act of 1996, Marshall Rev. Intell. Prop. L. 476, 480 (2015) (“Before
the EEA, federal prosecutors relied primarily upon the National Stolen Property
Act and the wire and mail fraud statutes to commence criminal prosecutions for
trade secret theft. Both statutes were ineffective.” (citation omitted)).
 Defend Trade Secrets Act of 2016, Pub. L.
No. 114-153, 130 Stat. 376 (codified as amended in scattered sections of 18
e.g., United States v. Chung, 659 F.3d 815, 825 (9th Cir. 2011) (“[W]e
consider instructive interpretations of state laws that adopted the UTSA
without substantial modification.”); see
also United States v. Hanjuan Jin,
833 F. Supp. 2d 977, 1007 n.3 (N.D. Ill. 2012) (“Although there are some
differences between the definitions of a trade secret found in the UTSA and the
EEA, the Court also considers cases that have interpreted the requirements for
a trade secret under state law based on the UTSA.”).
 See Rice Ferrelle,
Combatting the Lure of Impropriety in
Professional Sports Industries: The Desirability of Treating a Playbook as a
Legally Enforceable Trade Secret, 11 J. Intell. Prop. L. 149, 164-65, 168-69
(2003), (listing some of the more obscure types of information that have been
considered trade secrets under state law, including “a method of producing
unique watercolor paintings,” “techniques for personal spiritual advance,” and
a “technique for barbecuing meats”).
 Economic Espionage Act of 1996, Pub. L. No.
104-294, § 101(a), 110 Stat. 3488 (codified as amended at 18 U.S.C. §
 Defend Trade Secrets Act of 2016 §
2(b)(1)(A), 18 U.S.C. § 1839(3)(B) (2012 & Supp. IV 2017).
 Adam Cohen, Feature: Securing Trade Secrets in the Information Age: Upgrading the
Economic Espionage Act After United States v. Aleynikov, 30 Yale J. on Reg. 189, 204 (2013)
(“Insiders in a business are considerably more likely to know about particular
processes and methods than is the public.”).
 For example, the Los Angeles
Dodgers paid Andrew Friedman, their President of Baseball Operations, $35
million. Baumer, supra
note 6. A team’s
President of Baseball Operations makes all of the final decisions regarding
baseball strategy and talent acquisition and helps to shape the analytics
department through both hiring personnel and spearheading the development of
new analytical tools and programs.
note 40, at 166-67 (“[T]eam
victories . . . in turn lead to increased advertising, television, and radio
exposure. This exposure often translates into increased merchandise sales or
lucrative media contracts. . . . As a team organization garners more victories,
it reaps increased financial rewards.”); see
also Samuel J. Horovitz, If You Ain’t Cheating You Ain’t Trying:
“Spygate” and the Legal Implications of Trying Too
Hard, 17 Tex. Intell.
Prop. L.J. 305, 312 (2009) (“Profitability correlates to on-field
SeeRestatement (Third) of Unfair Competition § 39 cmt. f (Am.
Law Inst. 1995) (“[I]t is the secrecy of the claimed trade secret as a
whole that is determinative. The fact that some or all of the components of a
trade secret are well-known does not preclude protection for a secret
combination, compilation, or integration of the individual elements.”); see also United States v. Nosal, 844 F.3d 1024, 1042 (9th Cir. 2016) (“The source
lists in question are classic examples of a trade secret that derives from an
amalgam of public and proprietary source data. To be sure, some of the data
came from public sources . . . . But cumulatively, the Searcher database
contained a massive confidential compilation of data . . . .”).
(Third) of Unfair Competition § 39 cmt. f (Am. Law. Inst. 1995). (“[I[f acquisition of the information through an examination of a
competitor’s product would be difficult, costly, or time-consuming, the trade
secret owner retains protection . . . .”).
 18 U.S.C. § 1832(a) (2012) (“Whoever, with intent to convert a trade
secret, that is related to a product or service used in or intended for use in
interstate or foreign commerce . . .”).
 158 Cᴏɴɢ. Rᴇᴄ.
H6,848 (daily ed. Dec. 18, 2012) (statement of Rep. Smith) (“The Second
Circuit’s Aleynikov decision revealed a dangerous loophole that demands our
attention. In response, the Senate unanimously passed S. 3642 in November.”).
 Fed. Baseball Club of Balt.
v. Nat’l League of Prof’l Base Ball Clubs, 259 U.S.
200, 208-09 (1922).
282. Though it would likely not be difficult to prove that, despite the
antitrust language, the business of baseball is connected to interstate
commerce, the fact that this question may be less straightforward and that case
law like Aleynikov illustrates that
this requirement is not something courts are willing to simply look past,
prosecutors may be more reluctant to bring charges under the EEA in the context
 18 U.S. Code § 1832(a) (“Whoever, with
intent to convert a trade secret . . . to the economic benefit of anyone other
than the owner thereof, and intending or knowing that the offense will, injure
any owner of that trade secret, knowingly” misappropriates a trade secret
through an enumerated act shall be subject to punishment).
 Horovitz, supra note 65, at 324 n.101 (“Given the level of
Congressional attention Spygate and other sports
stories have received recently, the notion of federal prosecution hardly seems
Ex Parte Motion for Issuance of Subpoena & Prehearing Production of Materials at 1, United States v. Correa, No. 4:15-CR-00679 (S.D. Tex.
July 21, 2016) (recounting Correa’s statement made at rearraignment);
see also Rearraignment
at 9:8-24, United States v. Correa, No. 4:15-CR-00679 (S.D. Tex. July 21,
 Derrick Goold, Correa Gives His Account of Hacking Case,
St. Louis Post-Dispatch, Feb. 1,
2017, at B1.
 Plea Agreement, supra note 89, at 4. The prosecution reached the $1.7
million figure by taking the number of players Correa viewed “by 200,” dividing
that by the number of players that were eligible to be drafted and multiplying
by the scouting budget of the Astros that year. See Rearraignment, supra note 102, at 10:22-11:4. The actual monetary loss
incurred by Correa’s victims was established as just over $279,000, and this
substantially smaller figure was pertinent to the determination of Correa’s
sentence pursuant to the U.S. Sentencing Guidelines.
v. Kuhn, 407 U.S. 258, 282 (1972) (“Professional baseball is a business and it
is engaged in interstate commerce.”).
 In his guilty plea, Correa conceded that he
acted with intent to injure the Astros. See
Plea Agreement, supra note 89, at 10 (“The Parties agree that the
defendant’s intended loss under the U.S. Sentencing Guidelines definition for
all of his intrusions is $1.7 million.”). Conceding that he acted with intent
may have been a condition of his guilty plea. However, it does not bear on how
Correa would have argued had his case proceeded to trial.
 Responses to Defendant’s PSR Objections, supra note 110, at 6.
 Responses to Defendant’s PSR Objections, supra note 110, at 7 (“[T]he
parties agreed that a more restrained sentence was appropriate, so they agreed
on the loss calculations and the sophisticated means enhancement, and to not
charge aggravated identity theft.”).
 United States v. Nosal,
844 F.3d 1024 (9th Cir. 2016). In Nosal, an employee gave former employees her password so
they could continue to access the company’s confidential database. Nosal was convicted under the CFAA, and as Judge Reinhardt
noted in his dissent, the application of the CFAA to this scenario had the
potential to criminalize broader types of password sharing. Nosal, 844 F.3d at 1048
(Reinhardt, J., dissenting).
See Dean Pelletier,
Trade Secrets: Extra Edges on the
Diamond, Pelletier L. (Mar. 8,
2015), http://www.pelletier-ip.com/?p=197 (calling employee mobility “part of the
fabric of all professional sports”).
Milwaukee Brewers Media Guide 10-12 (Mike Vassallo et al. eds.).
 Data was compiled using each
team’s 2018 Media Guide. Employees holding the title of “General Manager” were
included in this study. The Boston Red Sox’s Dave Dombrowski, the Miami
Marlins’ Michael Hill, and the Baltimore Orioles’ Dan Duquette were included in
this study, as those three teams do not employ anyone with the title “General
 Orly Lobel, The New
Cognitive Property: Human Capital Law and the Reach of Intellectual Property,
93 Tex. L. Rev. 789, 835 (2015).
see also Cohen, supra note 57, at 229 (“Diminished labor mobility is
costly not only for individual workers, but for the nation as a whole. The
economy is at its most efficient when workers are able to take their labor
where the market would value it most highly.” (internal citations omitted)).
 18 U.S.C. Code § 1832(a) (2012) (“Whoever,
with intent to convert a trade secret . . . to the economic benefit of anyone
other than the owner thereof, and intending or knowing that the offense will,
injure any owner of that trade secret, knowingly” misappropriates a trade
secret through an enumerated act shall be subject to punishment).
 Morissette v.
United States, 342 U.S. 246, 251 (1952).
 Geraldine Szott
Problematic Role of Criminal Law in Regulating Use of Information: The Case of
the Economic Espionage Act, 80 N.C.
L. Rev. 853, 878 (2002) (“The EEA may be read to protect trade secrets
that exist only in the mind of the holders against misappropriation through
memorization of another.”).
See, e.g., Allen
v. Johar, Inc., 823 S.W.2d 824 (Ark. 1992); see also Ed Nowogroski
Ins. v. Rucker, 971 P.2d 936 (Wash. 1999).
 Stampede Tool Warehouse, Inc. v. May, 651
N.E.2d 209 (Ill. App. Ct. 1995).
 765 Ill. Comp. Stat. Ann. 1065/1-9
Tool Warehouse, Inc., 651 N.E.2d at 217.
 Cohen, supra note 57, at 227 (“[M]ost [states]
appear to limit criminal liability to cases in which there has been some kind
of physical taking and do not require employees to wipe clean the slates of
their memories.” (internal quotation marks omitted)).
Id. (“Most of the time in offices that are more inclusive by nature
you will be exposed to the development and actual usage of the systems you
develop and as such when you leave you take that with you. In fact, in most
cases that is part of the reason you are being hired to begin with.” (quoting
the former General Manager of the Colorado Rockies, Dan O’Dowd)).
 Drellich, supra note 2 (“There are ways to protect yourself by
making sure that people have access to the data that they only need to make the
decisions in the area.” (quoting Luhnow)).
 Lindbergh, supra note 128 (“It creates real morale issues in the staff
if they are walled off from things, particularly once you get into director and
higher levels. Everyone doesn’t need to know every piece of information, but if
you start excluding department heads from certain things in the fear that they
might leave, you are sort of inviting them to leave for somewhere else where
they will be more involved and more trusted.” (quoting an unnamed executive)).
walled-off employee can’t make as many direct contributions, and the smaller
the pool of potential peer reviewers, the more likely it is that mistakes will
 For a more thorough explanation of the
history and different variations of signs in baseball, as well as how each
element of the UTSA and EEA may be applied to sign-stealing, see Andrew G. Barna, Note, Stealing
Signs: Could Baseball’s Common Practice Lead to Liability for Corporate
Espionage?, 8 Berkeley J. Ent. &
Sports L. (forthcoming 2019).
See Grow & Grow, supra
note 4, at 1579; see also, Barna,
supra note 175, at 19-20 (“Per industry
practice, MLB teams take many measures to protect their signs. They use false
signs, change signs throughout the game, change signs after players get traded,
ensure the pitcher is not ‘tipping’ his signs, and speed up the pitcher’s
 Kewanee Oil Co. v. Bicron Corp., 416
U.S. 470, 476 (1974).
 Delineating the line between
misappropriation and superior knowledge or an educated guess is a common
difficulty in the criminal law, especially in the insider trading context. See, e.g., SEC v. Steffes, 805 F. Supp. 2d 601
(N.D. Ill. 2011).
 Horovitz, supra note 65, at 329 (“[T]he core focus of trade secret law is still the business world.”).
at 330. (“[T]he more conduct is directly related to business (that is, the more
it is removed from pure athletic competition), it not only more closely aligns
itself with the core justifications for trade secret protection but it also
becomes easier and more natural for courts to classify as proper or