United States: WORLD SERIES EDITION: These Trade Secrets Are Going, Going, Gone

Last Updated: October 25 2014
Article by Ellen Caro and Matthew Poppe

Ah, October: the time of crisp fall air, brightly colored leaves, and pumpkin spice-flavored everything. And, of course, the World Series quest that can unite a city—or, in the case of Orrick's San Francisco and Washington, D.C. offices, give rise to a friendly wager (sorry, D.C.!). In honor of the baseball playoffs, we take a look at some trade secret issues related to our national pastime.

Take Me Out to the Ballgame
Or on second thought, let's stay in and watch it on television. A lucrative television contract with a professional sports team is worth fighting over—just ask Fox Sports Net North (successor to Midwest Sports Cable) and the Minnesota Twins. When MSC's former general manager became the Twins' Chief Operating Officer in 2000, he looked into switching the Twins' television deal. Fox did not take too kindly to these efforts, and sued for misappropriation of trade secrets, among other claims. The Eight Circuit affirmed summary judgment for the Twins: because the former general manager left before Fox purchased MSC, any financial information he possessed was obsolete. In addition, the network's business contacts were readily ascertainable, and the telecast agreements had not been kept sufficiently confidential. The court also found that the former general manager had not used the information for the Twins' benefit, rejecting Fox's argument that he would inevitably do so.

Buy Me Some Peanuts and Crackerjack
Or at least buy me a pair of binoculars to spy on the other team. For as long as there has been baseball, there have been crafty players and coaches trying to gain an advantage (allegedly) through sign-stealing. Perhaps the most famous accusation relates to "the shot heard 'round the world"—the home run that sent the 1951 New York Giants to the World Series. Rumor has it that the dramatic home run may have been the result of an elaborate scheme: the Giants stationed a coach with a telescope just behind center field, who pressed a button to alert the bullpen catcher (one buzz for fastball; two for changeup), who in turn relayed the sign to the batter. More recently, the Phillies came under fire when their bullpen coach was caught looking through binoculars at the opponent's catcher while another player was on the bullpen phone. (The Phillies' response? If they were trying to steal signs, they wouldn't be so obvious about it.) Baseball sign-stealing may be unlikely to lead to trade secrets litigation, but it undoubtedly would result in some interesting courtroom drama if it did.

Root, Root, Root for the Home Team
If they don't win, it's a shame—or because their longtime manager left for a rival team. The end of every season seems like a game of musical chairs, with reshuffling of on-field performers and front office personnel. Just recently, the Dodgers hired a new president of baseball operations from the Tampa Bay Rays, and the Arizona Diamondbacks named the Oakland Athletics' bench coach as their new manager. While these new hires may face their former clubs only for the rare interleague series, every Boston Red Sox fan knows that moves to a hated rival are just as common. But what's a team to do when it fears its weaknesses may be revealed to the enemy? Not much, it seems—in professional sports, trades are a way of life. (Though they might want to change signs in advance of the next showdown; just look out for binoculars.)

For It's One, Two, Three Strikes You're Out
That high-90s fastball sure is hard to catch up with. But who first had the idea to display the speed and type of pitch at the game? Former college baseball coach David Baker wants credit for that one. Back in 1988, Baker approached visual display company Daktronics with an idea for a pitch speed indicator. When Daktronics later began making and selling similar indicators to major league teams, Baker sued for trade secret misappropriation. The Supreme Court of South Dakota affirmed summary judgment in favor of Daktronics: the definition of trade secret did not include a marketing concept or new product idea, and in any event the "formula" of combining a radar gun, console, and display was readily ascertainable. Bad news for Baker, but good news for baseball fans everywhere.

Extra Innings: Sometimes You Have to Play Dirty
Everyone knows using pine tar on the baseball can get you in trouble. But what about other sticky substances? It turns out every baseball used in major and minor league games has been treated with Lena Blackburne Baseball Rubbing Mud. The mud, which is used to make the ball less slick for pitchers, comes from New Jersey. But that's all we know: the exact location of the mud hole is a carefully guarded secret—as is the special ingredient added to the mud once it's been gathered. In fact, when the rubbing mud was featured on the TV show Dirty Jobs, host Mike Rowe was blindfolded when led to the mud and was not allowed to observe the addition of the secret ingredient. That's some valuable mud!

It remains to be seen which team will emerge from October as the ultimate baseball champion. But one thing's for sure: baseball brings its fair share of drama both on and off the field.

Twitter: @TS_Watch

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