The Political Economy of Cuban Baseball Player Smuggling and Its Possible Impacts on International and Domestic Law
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(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM The Political Economy of Cuban Baseball Player Smuggling and Its Possible Impacts on International and Domestic Law Cuban baseball players face a difficult journey if they decide to play for Major League Baseball (MLB). Because of the MLB’s byzantine rules, ballplayers historically have had to defect from Cuba to a third country and declare residency before traveling to the United States. In doing so, they place themselves at the mercy of international criminal gangs and human smugglers. In 2018, the MLB and Cuban Baseball Federation reached a deal allowing teams to sign players directly from Cuba in exchange for a “release fee” paid to the Cuban federation. This Note analyzes the 2018 agreement as the culmination of a line of legal scholarship seeking to find an appropriate policy solution to the issue of ballplayer smuggling. Recognizing the Trump administration’s decision to vacate the deal, this Note then assesses the deal’s connection to the legal theory of cultural property before assessing two possible unforeseen policy maneuvers the deal may grant to the Cuban government. Finally, it engages in a normative analysis that fleshes out the contemporary political debates surrounding the agreement. INTRODUCTION ................................................................................. 444 I. BACKGROUND ............................................................................... 447 A. Ballplayer Smuggling Before 2016 ................................ 448 B. Relaxations Under the Obama Administration ............... 453 C. Cuban Ballplayer Migration Under the Trump Administration ............................................................... 455 D. Baseball’s Importance to the Cuban Government and People & Why the Cuban Government Seeks to Curtail Smuggling .......................................................... 458 (h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM 444 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 II. OVERVIEW OF EXISTING PROPOSED SOLUTIONS AND THEIR SHORTCOMINGS ...................................................................... 461 A. Possible Unilateral or Bilateral Legal and Policy- Based Solutions.............................................................. 462 B. Likely Failure of Previously Proposed Solutions Under President Trump’s Administration...................... 469 IIA. THE 2018 CUBAN POSTING AGREEMENT ................................... 471 III. THE POSSIBLE EMERGENCE OF UNILATERAL CUBAN LEGAL ACTION ................................................................................... 475 A. The Legal Regime of Cultural Property .......................... 477 B. Use of International Treaties Against Third-Party Countries ........................................................................ 480 C. Cuban Claims in Criminal Forfeiture Cases in U.S. Courts ............................................................................. 484 IV. NORMATIVE ANALYSIS ............................................................... 486 CONCLUSION .................................................................................... 488 INTRODUCTION Baseball holds a unique place in the history of the United States as a unifying and long-lasting cultural icon. The game’s power to heal the wounds of national tragedy, serve as a symbol of American culture, and provide role models to the country’s children is well documented.1 Ninety miles from the Florida Keys, the people of Cuba similarly value “America’s pastime” as a cultural institution. The common (though inaccurate) myth that the New York Yankees once scouted future Cuban dictator Fidel Castro, a story promoted by Castro himself, provides just one example of baseball’s multigenerational significance for the island nation.2 This story also provides context for Castro’s choice to bar Cuban baseball players from freely participating in the U.S. major leagues, hoping to ensure that this athletic talent would remain in the Communist nation and not be lost to what El Comandante himself called the “cruelty” of 1. See generally Roberto Gonzalez Echavarría, THE PRIDE OF HAVANA: A HISTORY OF CUBAN BASEBALL (1999). 2. See No, Fidel Castro Wasn’t Nearly a New York Yankee, NPR MORNING EDITION (Nov. 30, 2016), https://www.npr.org/2016/11/30/503752196/no-fidel-castro-wasnt-nearly- a-new-york-yankee [https://perma.cc/S9GN-R4R3]. (h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM 2020] CUBAN BASEBALL PLAYER SMUGGLING 445 capitalism.3 Until recently, the nature of the Cuban regime, combined with a shaky diplomatic relationship between the United States and Cuba, meant that Cuban baseball players who sought to monetize their talents had to leave the island. This journey often entailed great danger—danger from the authoritarian regime the players left behind, from transnational criminal gangs and drug cartels, and from hostile seas and the forces of nature. This Note, while examining those details, discusses the political economy of Cuban ballplayer smuggling more broadly. As detailed below, Cuban exiles currently playing in Major League Baseball (MLB) will generate income of over a half-billion U.S. dollars on their current contracts alone. After sinking resources and funds into these players’ childhood and adolescent athletic development, only to watch them defect as adults, the Cuban government logically seeks to challenge the status quo surrounding its relationship with the league in order to gain a portion of those earnings. Recently, it seemed as though Cuba might have found an avenue to do so while simultaneously alleviating the dangers of ballplayer smuggling, putting that same status quo in flux. Until December 2018, prevailing wisdom dictated that, due to MLB rules, Cuban ballplayers had to enlist the aid of human smugglers, often in the employ of criminal syndicates, if they wanted to play in the United States. These smugglers aided the players in establishing false residency in third-party nations before traveling to American soil. Previously, some of these smugglers faced criminal prosecution in the United States. However, on December 19, 2018, the MLB and the Cuban Baseball Federation (FCB) reached a “historic” deal to sign players directly from the island, negating the need for these dangerous journeys.4 The deal has an uncertain future, drawing political fire from the Trump administration, which declared its intention to quash the agreement before it took effect in 2019.5 In 3. Fidel Castro, 8th Anniversary of the Events of 26 July (July 28, 1961), http:// lanic.utexas.edu/project/castro/db/1961/19610728-1.html [https://perma.cc/T95P-BBXD]. 4. See, e.g., Jared Diamond, Baseball Officials, Cuba Strike Deal to Allow Island’s Players to Sign MLB Contracts, WALL STREET J. (Dec. 19, 2018), https:// www.wsj.com/articles/baseball-officials-cuba-strike-deal-to-allow-islands-players-to-sign- mlb-contracts-11545269478 [https://perma.cc/V96R-DBR6]. 5. See Dave Sheinin & Karen DeYoung, MLB and Cuban Baseball Federation Reach Agreement; Trump Administration Signals It Has Issues with the Deal, CHICAGO TRIB. (Dec. 20, 2018), https://www.chicagotribune.com/sports/baseball/ct-spt-mlb-cuba-defection- 20181219-story.html [https://perma.cc/972Z-JPDN]. (h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM 446 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 April 2019, the administration cancelled the deal.6 In response, the MLB and the Cuban government have taken steps to negotiate with President Trump in an attempt to revive the agreement with limited success. Now more than ever, as the issue of Cuban ballplayer smuggling enters a period of potential legal change, international legal measures will come to the forefront of addressing the issue. This Note addresses how Cuban ballplayer smuggling may interact with potential international and domestic solutions, particularly in the context of hardened diplomatic relations between the Cuban and American governments. Part I provides a modern history of ballplayer smuggling and reasons why Cuba might pursue a remedy unilaterally. Part II highlights previously discussed solutions to the issue and assesses why these other solutions, largely bilateral in nature, have little chance of success due to the reality of U.S.-Cuban relations. Part III analyzes the quasi-private bilateral contract between the MLB and FCB. It shows that, though the agreement has fallen prey to the same political hurdles that prevented implementation of the solutions described in Part II, acceptance would facilitate two possible international law-based legal responses, one purely international and one based on domestic U.S. law, that Cuba might take unilaterally regarding the smuggling issue. Additionally, Part III includes a discussion of the intellectual and theoretical underpinnings of these solutions as articulated by international legal scholars. Finally, Part IV engages in a normative analysis of both the novel Cuban responses proposed in Part III and the 2018 MLB deal. It argues that, on balance, all three of the proposed solutions raise serious moral and political concerns for the United States and the international community. The section concludes with policy arguments as to why, despite the solutions’ possible legality, the United States and the MLB should not support the Cuban government if it engages in any of these measures for its own political and financial gain. 6. See, e.g., Jared Diamond & Vivian Salama, Trump Administration Blocks Baseball Players from Cuba, WALL ST.