(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

The Political Economy of Cuban Player Smuggling and Its Possible Impacts on International and Domestic Law

Cuban baseball players face a difficult journey if they decide to play for (MLB). Because of the MLB’s byzantine rules, ballplayers historically have had to defect from 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 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. J. (Apr. 8, 2019), https://www.wsj.com/articles/trump- administration-set-to-tighten-rules-for-baseball-players-from-cuba-11554747444 [https:// perma.cc/7XAG-NHRQ].

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 447

I. BACKGROUND

In recent years, high profile examples have shone renewed light on the issue of Cuban ballplayer smuggling and detailed the often-alarming personal stories of individual players’ journeys. Yet, the smuggling issue has existed for nearly three decades, firmly situated in the context of a United States-Cuba relationship that has existed at varying levels of hostility since Fidel Castro’s 1959 overthrow of Fulgencio Batista.7 Castro’s rebellion replaced an ostensibly pro-Western, United States-backed strongman8 with a Communist leader who formally allied with the Soviet Union.9 Batista’s overthrow occurred during “the height of the Cold War” between those two superpowers,10 and Castro’s overtures towards the U.S.S.R. forever changed the relationship between the United States and its island neighbor. Except for a short détente between Presidents Barack Obama and Raúl Castro, the United States and Cuba have existed in a state of “economic and diplomatic isolation” since the implementation of the U.S.-Cuba trade embargo in 1960.11 This international stalemate has manifested chiefly as a U.S.- instituted restrictive trade embargo on the island and severance of most formal diplomatic ties.12 Baseball is a defining feature of the history of this frayed diplomatic relationship.13

7. See Jethro Nededog, How Fidel Castro Rose to Become Cuba’s Controversial Leader for 5 Decades, BUS. INSIDER (Nov. 26. 2016), https://www.businessinsider.com/how- fidel-castro-rose-to-become-cubas-controversial-leader-2016-11 [https://perma.cc/5LJV- ZWKV]. 8. See Jorge I. Domínguez, The Batista Regime in Cuba, in SULTANISTIC REGIMES 113, 115 (H.E. Chehabi & Juan J. Linz eds., 1998). 9. For an assessment of Fidel Castro’s political ideology, see generally CUBAN COMMUNISM: 1959–2003 (Irving L. Horowitz & Jaime Suchlicki eds., 2003). 10. Anna Khomina, The Cold War Moves to the Kitchen: On This Day, 1959, GILDER LEHRMAN INST. AM. HIST. (July 24, 2017), https://www.gilderlehrman.org/content/cold-war- moves-kitchen-day-1959 [https://perma.cc/8NFW-GD29]. 11. Claire Felter & Danielle Renwick, U.S.-Cuba Relations, COUNCIL ON FOREIGN REL. (Jan. 19, 2018), https://www.cfr.org/backgrounder/us-cuba-relations [https://perma.cc/ H3QQ-RCKH]. 12. See generally MARIFELI PÉREZ-STABLE, THE UNITED STATES AND CUBA: INTIMATE ENEMIES (2011). 13. See generally Justin W.R. Turner, Baseball Diplomacy, Baseball Deployment: The National Pastime in U.S.-Cuba Relations (2012) (unpublished Ph.D. dissertation, University of Alabama) (on file with the University of Alabama Institutional Repository).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

448 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2

This section provides a modern history of the smuggling of Cuban ballplayers in the context of this tumultuous international milieu. It then provides an assessment of the various cultural, economic, and political reasons the Cuban government (and the Cuban people) find ballplayer smuggling an issue of high importance.

A. Ballplayer Smuggling Before 2016

While baseball is regarded as “America’s pastime,” it has long stood as a symbol connecting the United States and Cuba, and over time it has morphed into an important Cuban cultural touchstone in its own right.14 Despite this shared interest, Cuban baseball players have found acquiring lucrative Major League Baseball contracts to be exceedingly difficult when compared with players from other nations. Until January 2013, the Castro regime did not allow citizens to leave the country freely,15 and despite major relaxations of Cuban travel restrictions, baseball players seeking to come to the United States to play in the MLB still face extreme difficulty. First, because of the nature of the United States embargo against Cuba, the MLB cannot recruit players as free agents directly from Cuban professional leagues, requiring Cuban players to defect to the United States or a third country before attempting to enter Major League Baseball.16 Beginning with Cuban national team player René Arocha’s defection during a flight layover in Miami on July 10, 1991, a series of Cuban players attempted to defect to the United States and establish American residency before being selected in the MLB’s first year player draft.17

14. Id. 15. See Girish Gupta, Cubans Can Leave, But to Where and With What?, USA TODAY (Nov. 11, 2012), https://www.usatoday.com/story/news/world/2012/11/11/cuba-exit- visas/1694569/ [https://perma.cc/H89H-JTXB]. 16. See Looser Restrictions Allow Cuban MLB Players to Legally Earn in U.S., ASSOCIATED PRESS, Mar. 15, 2016, http://www.espn.com/mlb/story/_/id/14977450/looser- us-cuba-embargo-restrictions-allow-cuban-mlb-players-legally-earn-us-income [https:// perma.cc/55N6-Z5SZ]. 17. See Randal C. Archibold, This Cuban Defector Changed Baseball. Nobody Remembers., N.Y. TIMES (Mar. 18, 2016), https://www.nytimes.com/2016/03/20/ sports/baseball/before-wave-of-cuban-defectors-in-major-leagues-one-paved-their-way.html [https://perma.cc/967V-8TBF]. In the case of Arocha’s “unprecedented” defection, the

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 449

The first year player draft, referred to as the “Rule 4 Draft” in official MLB documents, allows the MLB’s 30 professional teams to draft amateur players who reside in the United States and Canada to rookie contracts.18 Despite years of professional experience, according to MLB Rule 3(a)(1)(A), Cuban players who declare residency in the United States or Canada “may be signed to a contract only after having been eligible for selection in the immediately preceding First-Year Player Draft.”19 In contrast, the current version of Rules 3(a)(1)(B) and 3(a)(1)(C) establish that non-residents of the United States and Canada may sign far more lucrative free agent contracts with any MLB team so long as they meet the requirements of a “foreign professional”—25 years of age at the time of signing and at least six seasons in a foreign professional league.20 Cuban players, however, have not historically been included in the purview of Rule 3(a)(ii) due to the United States trade embargo against Cuba. Despite the disparity in future earnings between rookies and foreign professional free-agents, many Cuban baseball players fled directly to the United States in the 1990s and 2000s for the same politically and economically motivated reasons that non-ballplayers defected. The journeys of defectors, who would later play in the MLB, were often harrowing. José Fernandez was the former star pitcher for the and one of the league’s most famous Cuban-American players before his untimely death in 2016. After serving prison time in Cuba for his first three failures, he successfully defected to the United States by boat on his fourth attempt, “escaping flying bullets from Cuban coast guard boats” and rescuing his mother from near-death after she was carried overboard by an ocean wave.21 Since Fernandez’s escape, Cuba has largely lifted its controls on travel to and from the island, including a restrictive exit visa that allowed the government complete discretion over citizens’

MLB established a special “ad hoc lottery” for his rookie contract, before allowing Cuban players to enter the Rule 4 Draft in later cases. See also Matthew J. Frankel, Note, Major League Problems: Baseball’s Broken System of Cuban Defection, 25 B.C. THIRD WORLD L.J. 383, 397 (2005). 18. See MAJOR LEAGUE BASEBALL, THE OFFICIAL RULES BOOK 47 (20th ed. 2019). 19. Id. at 20. 20. Id. at 20–21. 21. Jorge Ebro, Miami Marlins’ Jose Fernandez: From Cuba to Major League All- Star, MIAMI HERALD (July 7, 2013), https://www.miamiherald.com/sports/mlb/miami- marlins/article1953062.html [https://perma.cc/FU37-HKE4].

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

450 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 departures.22 Nevertheless, Cuban players have continued to take dangerous and difficult paths to defection. Travel remains cost- prohibitive for many Cuban ballplayers, who make somewhere “between $40 and $200 [monthly] for top athletes.”23 And, according to Paul Minoff, an attorney for Cuban defector Leonys Martín Tápanes, “it’s common knowledge that Cuba doesn’t just let its star baseball players leave the Communist island.”24 Thus, when Cuban ballplayers do choose to defect, they often hire smugglers to ferry them from the island in exchange for a share of their future earnings.25 Smugglers often take players to a third- party country and hold them there for a short time to establish the residency required to qualify for the foreign professional free agent contracts available under Rule 3(a)(1)(B).26 This faux-residency, which, as noted below, often includes the production of fraudulent travel documents, helps the players avoid the comparatively lesser- compensated contracts offered to players who go straight to the United States and enter the Rule 4 draft.27 The most common locations—Haiti, the , and Mexico—represent logical stopping points for human smugglers and their networks due to the countries’ close proximity to both the United States and Cuba.28 The difference in value for the players is substantial. While

22. See Damien Cave, Easing Path Out of Country, Cuba is Dropping Exit Visas, N.Y. TIMES (Oct. 16, 2012), https://www.nytimes.com/2012/10/17/world/americas/cuba-lifts- much-reviled-rule-the-exit-visa.html [https://perma.cc/6J9E-KVVB]. 23. Nelson Acosta, Cuban Athletes Get Pay Raise, Green Light to Work Abroad, REUTERS (Sept. 27, 2013), https://www.reuters.com/article/us-cuba-reform-sports/cuban- athletes-get-pay-raise-green-light-to-work-abroad-idUSBRE98Q0RM20130927 [https:// prerma.cc/8X4F-V4G3]. 24. Jose Pagliery & Ahiza Garcia, MLB Accused of Ignoring Cuban Baseball Player Smuggling, CNN (Dec. 15, 2016), https://money.cnn.com/2016/12/15/news/mlb-cuban- baseball-players-smuggled/index.html [https://perma.cc/ZXR4-ZL6J]. 25. See Jose Pagliery & Ahiza Garcia, The Cuban Baseball Smuggling Machine Behind MLB, CNN (Dec. 15, 2016), https://money.cnn.com/2016/12/15/news/mlb-cuban- baseball-main/index.html [https://perma.cc/H9XE-TGU6]. 26. See Alison Peck, Trump, Trade, José Abreu, and a Heineken Trafficking in Cuban Baseball Players, INT’L L. PROF. BLOG (Apr. 27, 2017), https://lawprofessors.typepad.com/ inttradelaw/2017/04/trump-trade-jos%C3%A9-abreu-and-a-heineken.html [https://perma.cc/ S75N-K7E3]. 27. See id. 28. See Jay Weaver, Agent, Trainer Smuggled Cuban Ballplayers into U.S. Now They’re Headed to Prison, MIAMI HERALD (Nov. 2, 2017), https:// www.miamiherald.com/news/local/article182319971.html [https://perma.cc/39FL-RAM2].

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 451 defector-draftee Jose Fernandez signed a three-year rookie contract, in 2011, for an average salary of $592,000 plus a $2,000,000 signing bonus,29 first baseman and “international free agent” Yasiel Puig, who had established residency in Mexico before entering the league, signed a seven-year, $42,000,000 contract with the in 2012.30 This “loophole,” first exploited in 1995 by Cuban-American agent Joe Cubas on behalf of two Cuban defectors, allows players the opportunity for exponential salary increases by establishing residency in a third country.31 Cubas’ model, in which he helped his clients “establish residency . . . in the Dominican Republic [for six months]” before attempting to sign a contract, “is now the model for Cuban baseball defectors and their agents.”32 The startling discrepancy in potential salaries has also led some players, such as Puig, to take drastic and dangerous measures to leave Cuba and establish residency in the aforementioned third-party countries. The players often pay human traffickers, who coordinate with drug cartels, other international criminal syndicates, and agents and operatives in the United States, to facilitate their successful journey to “foreign professional” free agency. As detailed in an infamous exposé written by the Los Angeles Magazine, Puig’s story details human rights violations, imprisonment, threats, and murder.33 Puig’s smugglers included

29. Salary average calculated by author using data from MLB Team Payroll Tracker, SPOTRAC, https://www.spotrac.com/mlb/payroll/. 30. See Dodgers Announce Yasiel Puig’s Deal, ESPN (June 29, 2012), http://www.espn.com/los-angeles/mlb/story/_/id/8112841/los-angeles-dodgers-announce- signing-yasiel-puig [https://perma.cc/2JLF-ATVL]. It should be noted that even a $2,000,000 rookie deal is far more than a player would make playing in Cuban leagues. Nevertheless, the incredible disparity between rookie contracts and free agent deals spurs players to take more difficult paths through third countries far more often than migrate directly to the United States. 31. See Frankel, supra note 17, at 398 (citing Murray Chass, New Route to Majors for Cuban Defectors, N.Y. TIMES (Dec. 7, 1995), https://www.nytimes.com/1995/12/07/sports/ baseball-new-route-to-majors-for-cuban-defectors.html [https://perma.cc/W7MT-RZH6]). 32. Frankel, supra note 17, at 399; see Walter T. Champion & Danyahel Norris, Why Not Row to the Bahamas Instead of Miami?: The Conundrum that Awaits Cuban Elite Baseball Players Who Seek Asylum and the Economic Nirvana of Free Agency, 9 VA. SPORTS & ENT. L.J. 219, 233 (2009). 33. See generally Jesse Katz, Escape from Cuba: Yasiel Puig’s Untold Journey to the Dodgers, L.A. MAG. (Apr. 14, 2014), http://www.lamag.com/features/escape-from-cuba- yasiel-puigs-untold-journey-to-the-dodgers/ [https://perma.cc/9YLX-WS9H].

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

452 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 fugitives and drug traffickers in the employ of Los Zetas, a Mexican cartel that uses “extreme tactics—including torturing, beheading, [and] sometimes mutilation of bodies.”34 As in similar cases, the cartel members worked in concert with an American benefactor who paid $250,000 in exchange for “20 percent of [Puig’s] future earnings to” the benefactor.35 Until the American wired the funds to the cartel, Puig, along with a fellow Cuban defector and amateur boxer, was held captive at gunpoint in a Mexican motel.36 One of the smugglers, who threatened the two athletes at gunpoint, was later found “shot to death in Cancun,” and at least two years after his successful defection, Puig continued to receive death threats from the smugglers for “unpaid smuggling debts.”37 Similarly, while not the victim of violence, Chicago White Sox first baseman José Abreu took the eastern route to the United States, arriving first in Haiti, where he established false residency with the help of local criminals, and then traveling to the Dominican Republic before flying to the United States.38 Later, at a federal trial to prosecute smugglers involved with his case, Abreu testified that he was forced to eat part of his false Haitian passport before entering the United States.39 Similarly, major league shortstop Adeiny Hechavarría testified to his fear throughout the smuggling process, stating: “If I had known what I was going to have to go through, I might not have come. A lot of difficult things took place along the way.”40

34. For a description of Puig’s smugglers, see id. For an analysis of Los Zetas’ tactics, see Lisa J. Campbell, Los Zetas: Operational Assessment, 21 SMALL WARS & INSURGENCIES 55, 65 (2010). 35. Katz, supra note 33. 36. Id. 37. Yasiel Puig Receiving Death Threats from Smugglers, USA TODAY (Apr. 17, 2014), https://www.usatoday.com/story/sports/mlb/2014/04/17/affidavit-smuggler-threats- follow-puig-from-cuba/7832677/ [https://perma.cc/D6HJ-J9KT]. 38. Paula McMahon, White Sox’s Jose Abreu to Jury: I Ate Fake Passport on Way to U.S., CHI. TRIB. (Mar. 1, 2017), http://www.chicagotribune.com/sports/baseball/whitesox/ct- jose-abreu-ate-passport-smuggling-trial-20170301-story.html [https://perma.cc/Q9YK- R59Z]. 39. Id. 40. Jorge L. Ortiz, Marlins’ Adeiny Hechavarria Recalls Harrowing Trip from Cuba, USA TODAY (May 14, 2015), https://www.usatoday.com/story/sports/mlb/2015/05/14/ marlins-adeiny-hechavarria-recalls-harrowing-trip-cuba/27345799/ [https://perma.cc/J4BA- WEB7].

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 453

Indeed, multiple high-profile federal trials in recent years have brought the issue of ballplayer smuggling to the forefront of public consciousness, but they have most often centered on the American agents who helped pay for the players’ journeys.41 Although agents are often required to forfeit their large percentage of contracts they negotiated as part of the facilitation, the defendants rarely receive long-term prison sentences due to the nuance of the cases.42 While working in concert with criminals, agents in the United States nonetheless aid baseball players who desire to leave behind the confines of an authoritarian regime and fulfill the American Dream. These players, far from feeling animosity towards the agents, often feel gratitude.43 More recently, the smugglers have found themselves the subjects of investigation and prosecution.44

B. Relaxations Under the Obama Administration

In the midst of what all parties hoped would be a lasting thaw in diplomatic relations between the United States and Cuba during the Obama administration, Major League Baseball promulgated new policies that removed additional restrictions on Cuban players entering the league. Before the rule change in 2015, players not only had to establish residency in a foreign nation, but also had to apply for and receive an “unblocking license” from the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC).45 After the

41. See, e.g., United States v. Hernandez, No. 1:16-CR-20091 (S.D. Fla. 2017); United States v. Estrada, No. 16-20091-CR-Williams (S.D. Fla. 2017); United States v. Lazo- Martinez, 460 Fed. App’x 879 (11th Cir. 2012); United States v. Dominguez, 661 F.3d 1051 (11th Cir. 2012). 42. See Weaver, supra note 28; see also Matt Wilhalme, Dodger’s Yasiel Puig Smuggler Sentenced to One-Month Prison Term, L.A. TIMES (Mar. 6, 2015), http://www.latimes.com/sports/dodgers/dodgersnow/la-sp-dn-yasiel-puig-smuggler- sentenced-prison-20150306-story.html [https://perma.cc./T2W9-DEQX]. 43. See, e.g., Marlins Shortstop Admits to Lying in Cuban Smuggling Probe, NBC SPORTS (Feb. 17, 2017), https://www.nbcsports.com/bayarea/giants/marlins-shortstop- admits-lying-cuban-smuggling-probe [https://perma.cc/7AG4-YSG5]. When asked by prosecutors how he felt, MLB shortstop Adeiny Hechavarría said he was “very happy” to see his mother again in the United States. Id. 44. See, e.g., Alleged Smuggler Accused of Sneaking Cuban Baseball Players into U.S. for Cash, S. FLA. SUN SENTINEL (Sept. 30, 2019), https://www.sun- sentinel.com/news/crime/fl-ne-yasiel-puig-raisel-iglesias-smuggler-facing-federal-charges- 20190930-4rmjpcpp3faflhe6aaqirlqq64-story.html [https://perma.cc/5CXV-Q2LA]. 45. MLB Eliminates Requirement Cuban Players Obtain U.S. License, USA TODAY

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

454 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 changes, players needed only to state affirmatively that they had taken up permanent residence outside of Cuba, along with certain disclaimers that they were not members of the Cuban Communist Party or Cuban government operatives.46 One year later, the MLB petitioned the Obama administration to allow them to recruit players directly from Cuba, without the need for residency in a third country.47 Shortly thereafter, as part of a larger plan to open trade and diplomatic ties with the island nation, the Obama administration directed amendments to OFAC’s Cuban Assets Control Regulations (CACR) “allow[ing] Cuban citizens to work in the United States and receive salaries from American companies” and making it “legal for franchises to sign contracts directly with Cuban ballplayers,” paving the way for an adoption of the MLB’s proposed Cuban free agent signing structure.48 This change allowed defecting Cubans to receive baseball salaries consistent with their free-agent status as Cubans, rather than as residents of some third-party country. Popular media and legal scholarship speculated that this policy shift could put an end to the issue of Cuban ballplayer smuggling.49 Without the need to declare residency in a third country

(Feb. 3, 2015), https://www.usatoday.com/story/sports/mlb/2015/02/03/mlb-eliminates- requirement-cuban-players-obtain-us-license/22819013/ [https://perma.cc/8DX4-9D4K]. 31 C.F.R. 515.505 (2012) states in relevant part that “[i]ndividual nationals of Cuba who have taken up permanent residence outside of Cuba may apply to the Office of Foreign Assets Control to be specifically licensed as unblocked nationals.” To acquire a license, players were required to submit multiple forms of residency documents or evidence that they had been a resident for at least two years in a third-party country. See Import/Export Attorney: OFAC, Cuba, and Baseball, ABADY L. FIRM P.C.: CUSTOMS & IMPORT/EXPORT ATT’Y BLOG, http://www.customsesq.com/ofac-cuba-and-baseball/ [https://perma.cc/HV2F-BNJ7]. 46. MLB Eliminates Requirement Cuban Players Obtain U.S. License, supra note 45. 47. See Ben Strauss, Major League Baseball Wants to Let Cuban Players Sign Directly with Teams, N.Y. TIMES (Mar. 2, 2016), https://www.nytimes.com/2016/03/03/ sports/baseball/major-leagues-have-proposal-to-ease-path-for-cuban-players.html [https://perma.cc/TPX6-Z9F8]. 48. See Cuban Assets Control Regulations, 81 Fed. Reg. 13,989 (proposed Mar. 16, 2016) (to be codified at 31 C.F.R. pt. 515). The regulations authorized “the receipt of salary or other compensation be a national of Cuba consistent with the individual’s non-immigrant status or non-immigrant travel authorization, provided that national to Cuba is not subject to any special tax assessments by the Cuban government in connection with the receipt of the salary or other compensation.” Id. at 13,993; see also Ben Strauss, New Work Rules Reshape M.L.B.’s Relationship with Cuban Prospects, N.Y. TIMES (Mar. 15, 2016), https://www.nytimes.com/2016/03/16/sports/baseball/major-league-baseball-cuba-obama- signings.html [https://perma.cc/MEC3-DWQD]. 49. See, e.g., Nicole Zaworska, Striking Out the Cuban Trade Embargo: A Contractual

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 455 to achieve the status of “foreign professionals,” there would be no need to leave the island in the first place, and thus no need for players to place themselves at the mercy of the cartels and their agents (assuming Cuba on its end allowed players to join Major League Baseball).50 Indeed, first baseman Yuli Gurriel, who had already defected before President Obama’s declaration but who had not established residency in any third country at the time, was the first major player signed under the new rules; the MLB declared him a free agent in May 2016, and he signed a five-year, $47,500,000 contract in June of that year.51

C. Cuban Ballplayer Migration Under the Trump Administration

After the 2016 U.S. presidential election, President Donald Trump fulfilled a campaign promise to repeal President Obama’s Cuba policy directives, limiting the opportunity for the MLB to act on its earlier desire to sign Cuban players directly as free agents.52 The 2017 amended CACR codified the National Security Presidential Memorandum (NSPM), Strengthening the Policy of the United States Toward Cuba, signed by the President on June 16, 2017.53 Notably, while the 2017 NSPM sought to encourage policies that pressured Cuba to allow its citizens to travel freely, the memorandum did not “reinstate the ‘Wet Foot, Dry Foot’ policy, which encouraged untold thousands of Cuban nationals to risk their lives by traveling unlawfully to the United States.”54 This provision highlighted an

Approach to the Transfer of Cuban Baseball Players to the Big Leagues, 24 SPORTS, L.J. 135, 136–139 (2017); see also Strauss, supra note 47 (“Under the new rules, players like Yuliesky Gourriel and his brother Lourdes Jr., top Cuban players who defected in February, could be eligible to sign with a major league team as soon as Wednesday and play for an American team immediately afterward.”). 50. See supra note 49. 51. See Astros Sign Cuban Free Agent Yulieski Gurriel to 5-Year Deal, ESPN (July 16, 2016), http://www.espn.com/mlb/story/_/id/17089767/houston-astros-sign-cuban-free-agent- yulieski-gurriel-5-year-deal [https://perma.cc/T9EJ-AVKD]. 52. See Cuban Assets Control Regulations, 82 Fed. Reg. 51,998 (proposed Nov. 9, 2017) (to be codified at 31 C.F.R. pt. 515). 53. Id.; see Strengthening the Policy of the United States Toward Cuba, 82 Fed. Reg. 48,875 (U.S. Dep’t of State Oct. 20, 2017). The document “supersedes and replaces . . . Presidential Policy Directive 43 of October 14, 2016, United States-Cuba Normalization,” closing off the lax visa restrictions promulgated by the Obama administration. Strengthening the Policy of the United States Toward Cuba, supra, at 48,877. 54. See id. at 48,876.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

456 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 executive intention to prevent any illegal travel to the United States from Cuba, including the sort of defection exemplified by Gurriel. Thus, the prospects of Cuban baseball players have reverted to their position before the implementation of the Obama-era regulations, now that those regulations have been directly repealed. Generally, the Trump administration has taken a hardline stance toward the Cuban government, even after the accession of the new president, Miguel Díaz-Canel.55 Consequently, since 2018, major Cuban free agents continue to follow the “Joe Cubas model,” traveling first to a third country, declaring residency in that country, and then coming to the United States to pursue free agency. The MLB, however, has not reverted to its policy of requiring OFAC unblocking licenses, so such players need only declare they do not intend to Cuba. The Mesa brothers’ case is the clearest example of the implementation of this model since the 2017 NSPM. Victor Victor Mesa and Victor Mesa, Jr., the sons of acclaimed Cuban baseball star Victor Mesa, are two of the highest-ranked baseball players to come from the island in years. They first had to “establish residency outside of Cuba and the United States and then petition for free agency” in order to qualify as foreign professionals.56 After declaring residency in the Dominican Republic, the two players followed the Cubas model and qualified as free agents,57 signing with the Miami Marlins.58 In December 2018, Major League Baseball, “seeking to end the practice of players being smuggled off the island on speedboats,” reached a deal with the Cuban Baseball Federation allowing players to sign with American teams without defecting, maintaining

55. See Alan Gomez, Trump’s Cuba Rollback Leaves U.S. Out in the Cold on Island’s Future, USA TODAY (Apr. 17, 2018), https://www.usatoday.com/story/news/world/2018/ 04/17/trump-cuba-rollback-leaves-united-states-out/453857002/ [https://perma.cc/94VA- BKVZ]. 56. Jesse Sanchez, The Latest on Cuban Phenom Victor Victor Mesa, MLB.COM (July 26, 2018), https://www.mlb.com/news/update-on-cuban-phenom-victor-victor-mesa/c- 287472096 [https://perma.cc/UPK4-L78P]. 57. See Mike Axisa, Baseball’s Next Star Cuban Prospects are Now Reportedly Able to Sign with MLB Teams, CBS SPORTS (Sept. 14, 2018), https://www.cbssports.com/ mlb/news/baseballs-next-star-cuban-prospects-are-now-reportedly-eligible-to-sign-with- mlb-teams/ [https://perma.cc/B8EJ-8RJ3]. 58. Clark Spencer, Marlins Make It Official, Welcome Mesa Brothers, Victor Victor and Victor Jr., to Miami, MIAMI HERALD (Oct. 22, 2018), https://www.miamiherald.com/ sports/mlb/miami-marlins/article220373645.html [https://perma.cc/3RG6-FYS9].

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 457 residency in Cuba and playing in the U.S. during the MLB season.59 While the legality of this agreement under the 2017 CACR will be discussed in Part III, the deal met immediate political resistance from both the Trump administration and Republican legislators.60 Former Cuban President and Communist Party leader Raúl Castro, in his address on the 60th anniversary of the Cuban revolution, criticized Trump for “taking on the path of confrontation with Cuba,” highlighting the increased tensions between the two countries since the 2016 U.S. presidential election.61 Unless the executive branch reverses course and approves the deal, the fate of Cuban ballplayers remains in purgatory.62 The status of the deal, and of the current smuggling regime, may also be affected by an ongoing Department of Justice Foreign Corrupt Practices Act (FCPA) investigation into Major League Baseball and multiple individual teams regarding their participation in player smuggling.63

59. Daniel Trotta & Sarah Marsh, Cuban Deal with MLB Allows Players to Sign without Defecting, REUTERS (Dec. 19, 2018), https://www.reuters.com/article/us-usa-cuba- baseball/cuban-deal-with-mlb-allows-players-to-sign-without-defecting-idUSKCN1OI2L5 [https://perma.cc/D8Z3-HZTV]. 60. See Franco Ordoñez, Trump Administration Aims to Stop Professional Baseball Deal with Cuba, MIAMI HERALD (Dec. 29, 2018), https://www.miamiherald.com/news/ nation-world/world/americas/cuba/article223695430.html [https://perma.cc/E5EJ-3JW9]. 61. Sarah Harvard, Raul Castro Attacks Trump Administration for ‘Taking Path of Confrontation with Cuba’, U.K. INDEP. (Jan. 2, 2019), https://www.independent.co.uk/news/ world/americas/us-politics/raul-castro-cuba-trump-anniversary-communist-revolution-us- a8708221.html [https://perma.cc/Q2Z8-Y72R]. 62. See Sheinin & DeYoung, supra note 5. Due to the President’s ability to augment the CACR largely via executive fiat, courts will tend to grant significant deference to the executive branch in interpreting whether the 2018 MLB-Cuba deal is acceptable under the U.S. trade embargo. 63. See Jon Wertheim & Carl Prine, Exclusive: The Evidence that Persuaded U.S. Department of Justice to Investigate MLB Recruitment of Foreign Players, SPORTS ILLUS. (Oct. 2, 2018), https://www.si.com/mlb/2018/10/02/fbi-investigation-mlb-atlanta-braves-los- angeles-dodgers [https://perma.cc/JXU6-R2MG]. The investigative report into the DOJ case particularly mentions egregious practices by the Los Angeles Dodgers, the team for which, coincidentally, Yasiel Puig found himself playing after his horrifying journey to the United States. Internal emails show how MLB teams worked with Caribbean smugglers to ensure their legitimate third-party residency under Rule 3(a)(ii). The authors point out the Dodgers’ actions are notable because the team “went so far as to develop . . . [a] document to detail the ‘level of egregious behavior’ displayed by their own employees in Latin America . . . . [F]our of their own employees ranked . . . ‘criminal; [one who] oversees the operation of people and money.’” Id. At the very least, the report calls into question the motivations for the MLB to engage in its pending deal with the Cuban Baseball Federation—pointing to monetary rather than humanitarian aims that may have swayed the Trump administration to

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

458 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2

D. Baseball’s Importance to the Cuban Government and People & Why the Cuban Government Seeks to Curtail Smuggling

Baseball in Cuba is “more overtly political than the American sport . . . [and has been] linked with the causes of national independence and revolution since the days of José Martí.”64 Yet, the immense cultural and national importance placed on Cuba’s baseball players comes with an economic tradeoff. Unlike their revenue-producing counterparts in Major League Baseball, Cuban players make “one half of one percent of the average New York Yankee’s salary” and “every baseball game in Cuba is free.”65 Cuba, thus, places unique value on its ballplayers, who operate at the nexus of the country’s national heritage, political relationship with the United States, and socialist state ideology. Consequently, the Cuban government has ample reasons to prevent the outflux of talent from its shores, or, at the least, receive what they would determine to be “just” compensation for the loss of national icons who are the products of Cuba’s homegrown system of scouting and talent development. This is particularly true in the context of Cuba’s unique communist ideology, in which the state not only makes great economic investments in players from a young age to cultivate talent, but also in which athletes, as the product of the Cuban state, must remain “uncorrupted by capitalism” to ensure their evolution into a “new Communist man.”66 Additionally, these goals overlay the obvious concerns regarding mistreatment and extortion of Cuban ballplayers during their journeys to the United States, discussed above, that Cuba would have its own reasons for wanting to curtail. Perhaps the most obvious of Cuba’s desires to stop the exodus of baseball players is the indirect toll these departures take on the country by converting the resources invested by the government into benefits never seen by the Cuban people. While the Cuban state does

classify the deal as a prohibited financial transaction under the CACR. See also Lawrence E. Ritchie & Malcolm Aboud, DOJ Launches FCPA Investigation into Major League Baseball, LEXOLOGY (Oct. 12, 2018), https://www.lexology.com/library/detail.aspx?g= fd2d6ebc-a9ec-44c3-922b-194e85a8efdb [https://perma.cc/G2YD-7P3R]. 64. Bruce Brown, Cuban Baseball, ATLANTIC MONTHLY (June 1984), https://www.theatlantic.com/past/docs/issues/84jun/8406brown.htm [https://perma.cc/3NGG-2EVS]. 65. Id. 66. Geralyn Pye, The Ideology of Cuban Sport, 13 J. SPORTS HIST. 119, 122 (1986).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 459 not receive any direct economic benefits from these players’ successful careers, Cuba makes heavy investments in players from a young age. The government selects, “culls[,] and grooms young athletes . . . funneling them into Schools for Sports Initiation . . . then on to High Schools of Athletic Perfection.”67 Selection procedures include recommendations, competitive results, and “test[s] of biotype, which determine[] stamina, coordination, speed, sports skills, and general health.”68 This selection process allows athletes to serve not only as athletic champions, but also as champions of state ideology. Fidel Castro argued: “[C]hampions become symbols for the youth and children. Champions represent the extent of the social and cultural development of our revolution and our people. Champions become a measure of the character, will, and dignity of our people. And champions bring joy, honor, glory, and prestige for our country.”69 When players leave to play in the MLB, this intangible national benefit turns into highly lucrative monetary contracts, placing a clear price tag on Cuba’s loss of investment as well as dealing a secondary ideological blow to the Cuban regime by “corrupting” the country’s paragons of Castroism with “poisonous” capitalist influence. Since defecting, the twenty-seven free agent Cuban players currently in the MLB will have collectively earned over $506 million by the expiration of their current contracts or via rookie signing bonuses.70 This number is startling in terms of both its sheer magnitude and as a reflection of the players’ worth to the U.S. professional leagues. While Cuba would not have acquired that monetary value had the players stayed on the island, the number reflects two positions the Cuban government would likely take when assessing the exodus of players from the island. First, this sum could not have been achieved without the heavy educational and training investments Cuba made during the players’ youth. Second, when used as a rough proxy for the players’ inherent value to the Cuban

67. Katz, supra note 33. 68. PAULA J. PETTAVINO & GERALYN PYE, SPORT IN CUBA: THE DIAMOND IN THE ROUGH 131 (1994). 69. Id. at 129 (quoting Fidel Castro). 70. Current player salaries aggregated from Spotrac.com and rookie signing bonuses gathered from ESPN. Notably, this calculation only considers the economic value of current player contracts and rookie signing bonuses. The actual amount of money a player will generate over the course of his career can be far more. Of the twenty-seven, the vast majority of these players chose to defect rather than sign as rookies in the Rule 4 Draft.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

460 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 government and people, the Cuban government likely would want to prevent the loss of such value or, in the alternative, to receive a portion of the players’ monetary earnings. To really understand ballplayers’ place in Cuban society, one must first understand baseball’s unique place in Cuban history. The sport was a fixture of national culture one hundred years before Castro’s revolution.71 In the colonial era, baseball existed as a symbol of modernity in contrast to Spanish bullfighting and as “a means by which Cubans disaffected from Spain could give one more expression to their discontent.”72 Importantly, as Cubans used baseball to resist Spanish colonial rule, they turned toward the United States as a cultural ally. In fact, the first baseball game recorded in Cuba occurred in 1866, when “a ship from the United States docked . . . in Matanzas . . . [t]he ship’s men invited the Cuban cargo handlers to join them in an exhibition game of baseball.”73 As Cuban and American baseball teams began to compete against each other in the late-19th and early-20th centuries, baseball became an allegory for healthy and positive Cuban-American diplomatic relations as a whole.74 After Castro’s 1959 coup, baseball’s role in Cuba changed, particularly in terms of the nation’s relationship to the United States. Rather than serving as a symbol of Cuban-American unity and shared values, baseball served as a tool for the Castro regime to emphasize the dichotomy between Castroist socialism and Western capitalism. Castro co-opted baseball’s historical importance on the island and used it for his own ends. He argued that “sport . . . became entertainment and business for the rich in pre-revolutionary Cuba” with “athletes . . . [as] pieces of merchandise . . . .”75 In contrast, Cuban athletes under the Castro regime “had to present themselves as revolutionaries.”76 That is, like many aspects of the post- revolutionary society, ballplayers in Cuba were representatives not only of their sport and national society, but also of communism’s triumph over the West. The litany of Cuban defections to the United States post-revolution thus stands as a notable crack in the positive

71. See Brown, supra note 64. 72. Louis A. Perez, Jr., Between Baseball and Bullfighting: The Quest for Nationality in Cuba, 1868–1898, 81 J. AM. HIST. 493, 505 (1994). 73. Eric A. Wagner, Baseball in Cuba, 18 J. POP. CULTURE 113, 115 (1984). 74. See generally Perez, supra note 72. 75. Pye, supra note 66, at 125. 76. Id.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 461 image the Castro regime had sought to portray over the past sixty years.

II. OVERVIEW OF EXISTING PROPOSED SOLUTIONS AND THEIR SHORTCOMINGS

As discussed above, myriad journalistic accounts of Cuban ballplayer smuggling exist that detail the practice’s history, current status, and position in the context of Cuban-American politics. Somewhat surprisingly, legal and academic scholarship on the subject is more limited, with legal literature mostly limited to student notes. Similarly, within the realm of policy analysis, scholarship has been mostly confined to manuscripts, dissertations, and theses.77 Furthermore, many discussions of ballplayer smuggling, regardless of the level of depth, substantively interact with the issue in terms of either a) its possible effects on so-called “baseball diplomacy” between the two nations,78 or b) solutions that require bilateral measures between the two nations or unilateral measures on the part of the United States or Major League Baseball. Until the December 2018 agreement between the MLB and the Cuban professional league, conventional wisdom dictated that these sorts of solutions were pipe dreams at best, as they would have to overcome the longstanding enmity between the two governments. This section briefly discusses the various solutions proposed to this issue in the past and will differentiate this paper’s approach when compared to earlier suggested remedies.

77. For examples of such non-legal policy analyses of the ballplayer smuggling situation, see Thomas F. Carter, Family Networks, State Interventions and the Experience of Cuban Transnational Sport Migration, 42 INT’L REV. SOC. SPORT 371 (2007); Daniel Añorve Añorve, The Role of Baseball in the Normalization of Cuba-US Relations (Jan. 2016) (unpublished manuscript), http://web.isanet.org/Web/Conferences/CEEISA-ISA-LBJ2016/ Archive/9b56a43f-1d99-41dc-aaac-aeca4621bd62.pdf [https://perma.cc/U25C-EH9W]; Zack Kopecki, Cuban Exceptionalism: The Inconsistency of U.S. Immigration Policy for Latino Baseball Players (2016) (unpublished M.A. thesis, California State University, Stanislaus) (on file with the California State University ScholarWorks Repository); Turner, supra note 13. 78. This formulation recalls similar policy discussions relating to “ping-pong” diplomacy between the United States and Communist China. See Stuart Murray, Moving Beyond the Ping-Pong Table: Sports Diplomacy in the Modern Diplomatic Environment, PUB. DIPL. MAG., Winter 2013, at 11.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

462 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2

A. Possible Unilateral or Bilateral Legal and Policy-Based Solutions

Legal and academic commentators have suggested a variety of possible solutions to the Cuban smuggling quandary, from contractual approaches between the MLB and Cuba, to MLB regulatory changes, to bilateral treaties and major foreign policy shifts in the U.S.–Cuba relationship. Without exception, every one of these solutions would require either a) overtures and/or payments to the Cuban government or affiliated groups, or b) disincentives for Cuban players to leave the island in the first place. One example is a four-part, comprehensive plan proposed by Matthew Greller.79 First, Cuba would have to “remove the 1960 ban on Cubans competing in ,” while the United States would have to enact “precise modifications of portions of the [Cuban] embargo.”80 Only after this policy détente, the MLB would take unilateral action to amend its draft rules (discussed above) to specifically include Cubans as eligible for the MLB amateur draft in the same manner as Canadian, American, and US-territorial residents.81 Greller then calls for a 2.5% “contract tax” for Cuban players throughout their careers that would be diverted to baseball infrastructure in Cuba.82 While Greller’s plan would have the MLB maintain control of the funds rather than the Cuban government, he nonetheless concedes that such money could be “redirect[ed]” to more general Cuban policy goals such as “alleviating the rampant conditions of poverty that plague the Cuban people.”83 Finally, Greller proposes a major change to United States visa laws that would reduce the need for Cuban defections and spur increased diplomacy between the two countries, although he admits that “preventing the Castro government from seizing the salaries of these

79. See Matthew N. Greller, Note, Give Me Your Tired, Your Poor, Your Fastball Pitchers Yearning for Strike Three: How Baseball Diplomacy Can Revitalize Major League Baseball and United States-Cuba Relations, 14 AM. U. INT’L L. REV. 1647, 1700–11 (1999). 80. Id. at 1700–01. Notably, Greller’s baseline policy framework seemed to come to fruition as early as 2014. As the United States began to make diplomatic overtures to the Cuban government, Cuba began allowing players to play professionally in Japan. See Daniel Trotta & Junko Fujita, Cuba Opens Pipeline of Baseball Talent to Japan, U.S. Left Out, REUTERS (July 3, 2014), https://www.reuters.com/article/us-cuba-baseball- idUSKBN0F902V20140704 [https://perma.cc/F76P-38V3]. 81. See Greller, supra note 79, at 1704. 82. Id. at 1705–06. 83. Id. at 1707.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 463 players may prove difficult.”84 Others have argued for a “worldwide” or global draft in which “amateur players, no matter what nationality, would have to participate in an amateur draft” like those players residing in the United States, Canada, and U.S. territories under current MLB rules.85 As one critic points out, however, even the framework necessary to create such a global draft would indirectly aid the Cuban government in maintaining its grip over attempted defectors.86 Thus, while a worldwide draft would not include the danger of funneling money to the Cuban regime, it could nevertheless “have the unfortunate effect of trapping more young ballplayers” in Cuba.87 Some solutions directly reference the prospect of increased legal maneuverability due to relaxing diplomatic relations during the Obama administration.88 One proposed solution, suggested by Rachel Solomon, acknowledges the critical perspective that a solution based on changing MLB policy would be “only a symbolic gesture . . . before the embargo is substantively altered to accommodate Cuban ballplayers.”89 Nevertheless, Solomon argues that, in the context of the Obama-era diplomatic thaw, the commissioner of the MLB (then Bud Selig, now Rob Manfred) could act with more than symbolism and choose to revoke the so-called “Kuhn Directive” blocking MLB scouts from communicating with

84. Id. at 1709–10. 85. Scott M. Cwiertny, Comment, The Need for a Worldwide Draft: Major League Baseball and Its Relationship with the Cuban Embargo and United States Foreign Policy, 20 LOY. L.A. ENT. L. REV. 391, 426 (2000). 86. See Frankel, supra note 17, at 420 (“Together, stricter agent regulation and reduced-value contracts will almost certainly deter agents from helping players to defect.”) (citations omitted). Even if the moral and political obstacles for a worldwide draft vanished, the draft would still have many practical issues regarding creation and implementation. The draft likely would not apply to South Korea, Japan, or Taiwan due to existing posting agreements with the United States and de facto would target Venezuela and the Dominican Republic—two countries that “will want to protect a system that, in the words of one official, has given them ‘a big financial stake’ in the status quo.” Jayson Stark, International MLB Draft: Inevitable or Impossible? ESPN (June 11, 2015), http://www.espn.com/ mlb/story/_/id/13054711/biggest-obstacles-international-major-league-baseball-draft [https://perma.cc/RUE6-34XV]. 87. See supra note 86. 88. See Rachel D. Solomon, Note, Cuban Baseball Players, the Unlucky Ones: United States-Cuban Professional Baseball Relations Should Be an Integral Part of the United States-Cuba Relationship, 10 J. INT’L BUS. & L. 173–78 (2011). 89. Id. at 186 (citing Frankel, supra note 17, at 422).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

464 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2

Cuban ballplayers during the time they reside on the island.90 Rescinding this MLB policy would pave the way for the adoption of an agreement with the Cuban government regarding the international scouting of Cuban players.91 Solomon goes on to mention a posting agreement system, similar to that reached between the MLB and Japanese professional baseball, as a possible option, but does not elaborate on what the details of such an agreement would look like.92 Theoretically, such an agreement would encourage broadening relaxations of the Cuban embargo in other commercial areas and a cascade of increased diplomacy between the two countries.93 This line of thought continued among commentators into President Obama’s second term as the Administration made increasingly friendly gestures towards the Castro regime. Wide- ranging solutions based on either the prospect of a forthcoming relaxation of the embargo or the possibility of capitalizing on ongoing negotiations in the diplomatic thaw were suggested by scholars from 2012 to 2018 based on what many foresaw as the “new normal” in U.S.-Cuba relations. These included a resurrection of the 1995 Baseball Diplomacy Act, a bill which would “give a special work visa to Cuban baseball players” that coincided with their desires to return to Cuba and the requirements of the Castro government.94 Another solution would have the MLB and Cuba agree to a “player-

90. Id. at 186. 91. Id. 92. Id. n.306 (citing Lewiz Kurlantzick, The Tampering Prohibition and Agreements Between American and Foreign Sports Leagues, 32 COLUM. J.L. & ARTS 271, 299–300 (2009)). These ideas parallel the framework of the deal reached between the MLB and the Cuban professional baseball league seven years after the publication of Solomon’s Note. A more detailed analysis of the proposed deal between the MLB and the Cuban league can be found below. 93. Gregory Korte, Obama Administration Loosens Cuba Rules in Advance of Historic Visit, USA TODAY (Mar. 15, 2016), https://www.usatoday.com/story/news/politics/ 2016/03/15/obama-administration-loosens-cuba-rules-advance-historic-visit/81801506/ [https://perma.cc/3ZPT-Q6VQ] (noting that the Obama-era moves occurred in the context of “relaxation of shipping to Cuba, imports of Cuban software, and consumption of Cuban goods”). 94. Ryan M. Schur, The Effect of Major League Baseball on United States-Cuba Relations 30 (2012) (unpublished manuscript), http://ryanschurlaw.com/wp-content/ uploads/2012/10/THE-EFFECT-OF-MAJOR-LEAGUE-BASEBALL-ON-UNITED- STATES-CUBA-RELATIONS.pdf [https://perma.cc/67ZG-QZV3] (citing Solomon, supra note 88, at 179; Cwiertny, supra note 85, at 422). The Baseball Diplomacy Act, H.R. 213, 116th Cong. (2019), though introduced multiple times by Rep. Jose Serrano, has failed to pass into law.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 465 rental” system in which the league would coordinate the payment by teams of “compensation fees” to the Cuban government in exchange for “renting” the talents of newly-drafted Cuban players.95 Such a player-rental system overtly recognizes the idea that governments, such as Cuba’s, have an “interest in its player’s talent,” for which they can negotiate, independent of that player’s feelings toward the government in question.96 Yet another suggestion comes from Anne Kaminsky, who argues the MLB should enact policy changes in conjunction with lobbying efforts to change congressional legislation regarding Cuban ballplayers.97 The policy changes would consist either of a) a worldwide draft as discussed above, or b) the MLB unilaterally changing its policies to allow Cuban refugees to the United States to register as free agents rather than submit themselves to the amateur draft.98 Additionally, the MLB would support strategic legislation via lobbying efforts in states such as Florida, while simultaneously using “money” to sway Cuban leaders.99 Similar to the ideas discussed above, Kaminsky’s proposal would have the United States or the MLB financially compensate the Cuban government to solve the problem, allowing Cuba to “essentially sell their star players” to the United States.100 Still another possible solution, again resting on the Obama administration’s eased relations with Cuba, comes from Aaron Klein and Jake Marcus, who argue for the creation of a multilateral “baseball coalition committee” to conduct context-specific negotiations regarding solutions to the smuggling issue in the hope of fostering further diplomatic ties between the two countries.101 The

95. See Emily B. Ottenson, Note, The Social Cost of Baseball: Addressing the Effects of Major League Baseball Recruitment in Latin America and the Caribbean, 13 WASH. U. GLOBAL STUD. L. REV. 767, 772 (2014) (“[T]his Note proposes . . . a Coase Theorem-based compensation system, in which MLB teams cooperate with Latin American and Caribbean countries to support the fair and responsible development of baseball players.”). 96. Id. at 773. 97. See Anne Kaminsky, Note, A Major Smuggle Struggle: It’s Time for Major League Baseball to Step Up to the Plate and Alleviate Its Cuban Smuggling Problem, 24 CARDOZO J. INT’L & COMP. L. 193 (2015). 98. Id. at 223. 99. See id. at 224–26. The emergent case against the MLB for FCPA violations seems to call the wisdom of using money to sway Cuban leaders into question. 100. Id. at 226. 101. See Aaron Klein & Jake Markus, United States-Cuba Normalized Relations and the

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

466 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 committee: Will consist of representatives from: 1) United States government; 2) Cuban government; 3) Sports agents; 4) Major League Baseball; 5) Serie Nacional de Béisbol [FCB]; and 6) Liaisons on all ends to mediate the process, ideally from the United Nations Charter. The representatives would be able to negotiate arrangements and provisions of the movement of players from Cuba to other countries to ensure the legitimate concerns for individuals who seek to flee the island, while keeping the committee’s respective interests in mind to align the goals of all groups involved. The liaisons will ensure good faith negotiations to maintain order in line with the United Nations Charter.102 Notably, such a committee would have to find a solution in which Cuba as well as the MLB and United States government did not feel “slighted” by whatever agreement came to pass.103 While Klein and Marcus include their own survey of relevant scholarly literature to this point,104 multiple articles were published since their work. Drew Goorabian provides his own survey of possible solutions.105 Goorabian reiterates many of the approaches discussed above, but one novel policy option includes the establishment of MLB “academies” in Cuba.106 These MLB-funded schools would invest heavily in “baseball infrastructure” on the island and provide an “educational component” to Cuban players.107 Goorabian also shows support for Solomon’s “” idea, arguing that the MLB could model an agreement with Cuba’s professional league on its existing agreement with the Japanese and Korean baseball leagues, in which the league pays fees to the target

MLB Influence: The Baseball Coalition Committee, 47 U. MIAMI INTER-AM. L. REV. 258, 305 (2016). 102. Id. 103. Id. at 311. 104. See id. at 293–300. 105. See generally Drew M. Goorabian, Comment, Baseball’s Cuban Missile Crisis: How the United States and Major League Baseball Can End Cuban Ballplayer Trafficking, 20 UCLA J. INT’L L. & FOREIGN AFF. 425 (2016). 106. See id. at 457. 107. Id.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 467 governments as compensation for the transfer of talent to the majors.108 While touching upon previously discussed solutions such as the Baseball Diplomacy Act and worldwide draft options,109 Evan Brewster likewise supports a posting system between Cuba and the MLB, noting that “the Cuban government receives nothing in return for the players that leave the island for [the] MLB.”110 The idea of a posting agreement was further elaborated by Nicole Zaworska, who likewise shaped her policy assumptions based on Obama-era diplomatic projections.111 Zaworska outlines a multistep posting regime for Cuban baseball players that parallels the agreement between the MLB and Nippon Professional Baseball of Japan.112 This system would have a high-level Cuban baseball executive such as the “president [or] . . . vice president” of the Cuban Baseball Federation serve as the “commissioner.”113 Eligible players would submit a “posting” request to the commissioner, who would then calculate an appropriate “release fee.”114 The calculation of such a fee would include factors such as: (1) The Cuban Baseball Federation’s damage from losing a player, (2) any investments made in training the player, and (3) potential use of the player within the Cuban Baseball Federation. Similar to the NPB Posting System, the agreement with the Cuban Baseball Federation could put a cap on release fees to avoid Cuba’s extortion and abuse of the requested

108. See id. at 458. 109. See Evan Brewster, Note, Cuban Baseball Players in America: Changing the Difficult Route to Chasing the Dream, 5 MISS. SPORTS L. REV. 215, 239–42 (2016). 110. Id. at 241. 111. See Zaworska, supra note 49, at 151–55. Zaworska goes so far as to posit a manner in which President Obama could lift the Cuban embargo via executive measures after pressuring Congress to repeal the Helms-Burton Act. This policy stance reflects the high level of optimism regarding possible legal measures in the finals years of Obama’s second term. The publication date of Zaworska’s note, in early 2017, itself articulates the rapidly shifting legal ecosystem surrounding the issue of Cuban player smuggling. Just as President Trump’s executive actions have rendered Zaworska’s conclusions regarding liberalizing legal restraints between the US and Cuba somewhat obsolete, Trump’s actions regarding the 2018 deal between the MLB and Cuban Baseball Federation may close the door on many new legal options before they can be implemented. 112. See id. at 159. 113. Id. at 159–60. 114. Id. at 160.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

468 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2

release fee. The cap could be $20 million, like the NPB Posting System, or it could start much lower and increase depending in Cuba’s willingness to participate.115 Zaworska proposes additional provisions that would give Cuba greater control over its players, such as a “restriction on the time the Cuban baseball player is permitted to play in MLB” or a mechanism for the player to “pay Cuba for his unconditional release.”116 Though the posting system ultimately became the MLB’s chosen mechanism for its interactions with Cuba, by 2018, scholarship shifted to other measures, each of which rested on a quasi-public/private partnership between the MLB and Cuban government.117 One such measure would “requir[e] all players to enter into an amateur draft” rather than just those who are residents of the United States, its territories, and Canada.118 Theoretically, this would “alleviate some of the pressure that incentivizes so many to defect” by taking away the players’ monetary compensation as non-

115. Id. This particular formulation is noteworthy for multiple reasons. First, like the vaguer proposal suggested by Solomon, many of these provisions exist in one form or another in the 2018 agreement between the MLB and FCB, discussed further below. Second, the factors included in the posting fee calculation recall the contemporary criticisms of the 2018 deal as exploiting players’ skills. See, e.g., Louis Casiano, Marco Rubio Calls MLB Deal with Cuba “A Farce” that Needs To Be “Overruled”, FOX NEWS (Dec. 30, 2018), https://www.foxnews.com/politics/sen-marco-rubio-vows-to-stop-deal-allowing- cuban-players-to-sign-with-mlb [perma.cc/V2ZP-5P8Z]. Third, the inclusion of the “investments made in the player” as part of the calculation brings to mind ideas of intangible cultural property discussed infra and is used as a basis for multiple other international law claims Cuba could make unilaterally to attempt to recoup money from player contracts. Fourth, the posting system articulated by Zaworska occurs in conjunction with the removal of the Cuban embargo, not in spite of it—a major difference with the 2018 deal discussed infra. 116. Id. Zaworska concedes that these provisions “do not directly comply with the ideals of the Declaration of Human Rights.” Id. Indeed, such provisions bring to the forefront the authoritarian conditions Cuban players attempt to escape when they embark on their dangerous journeys to the United States and third-party countries. This mechanism has provided the basis for much of the criticism of the 2018 deal between the MLB and the FCB and highlights a chief political hurdle to such a scheme that has reasserted itself in the Trump era, discussed infra. 117. Alyson St. Pierre, America’s Past-Time and the Art of Diplomacy, 25 IND. J. GLOBAL LEGAL STUD. 797, 813 (2018). 118. Id.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 469 amateurs.119 Greller’s idea of a “contract tax . . . paid by MLB teams to a central revenue fund, which the league could use to support the Cuban baseball system” reappears as well.120 Like a posting system, loan regime, or all-amateur draft, one goal of a contract tax would be to either allow retention of the “players’ talent” by Cuba or a “proportionate” compensation thereof.121

B. Likely Failure of Previously Proposed Solutions Under President Trump’s Administration

The above solutions share one common factor necessary to achieve success: as the authors readily admit, for full implementation of any of these schemes, the United States must make major changes to its trade embargo against Cuba. Many of these schemes explicitly rely on a perceived near-future relaxation of the embargo based on the 2016 guidelines promulgated by President Obama.122 In the present, however, any of the above solutions would need to overcome both legislative and executive challenges. First, the intent of President Trump’s 2017 CACR is clear. The President’s memorandum, which the CACR codify, seeks to “support the economic embargo of Cuba described in section 4(7) of the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996.”123 This

119. Id. 120. Id. (citations omitted). 121. Id. (citing Ottenson, supra note 95, at 789). 122. See, e.g., Klein & Marcus, supra note 101, at 304 (“Now that the countries have an operative agreement in place through the goal of normalizing relations, there is an opportunity for the ongoing difficulties associated with Cuban players to improve relations between the two countries and eliminate the unsafe procedures in line with the issue.”); see also Kaminsky, supra note 97, at 225 (“[N]ow that the embargo is officially fading, the MLB should proactively engage in direct talks with Cuban baseball leaders to figure out how to proceed in the future with regard to sharing players.”). 123. See Strengthening the Policy of the United States Toward Cuba, supra note 53, at 48,876. The Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, also known as the Helms-Burton Act, is the most recent and most restrictive version of the United States embargo against Cuba. See Klein & Markus, supra note 101, at 268–69. Section 4(7) defines the provisions of the embargo: Economic embargo of Cuba – the term “economic embargo of Cuba” refers to—(A) the economic embargo (including all restrictions on trade or transactions with, and travel to or from, Cuba, and all restrictions on transactions in property in which Cuba or nationals of Cuba have an interest) that was imposed against Cuba pursuant to section 620(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2370(a)), section 5(b) of the Trading with the Enemy Act (50 U.S.C. App. 5(b)), the Cuban Democracy Act of 1992 (22

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

470 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 position leaves little room for maneuverability regarding the embargo itself. It is not simply a “passive measure”—rather, the memorandum promulgates a requirement to “[oppose] measures that call for an end to the embargo at the United Nations and other international forums and . . . [report] on whether the conditions of a transition government exist in Cuba.”124 Furthermore, President Trump’s April 2018 replacement of senior cabinet members and administration officials has consolidated this hardline approach. Secretary of State Mike Pompeo “was highly critical of Obama’s visit to the island in 2016 and defended retaining the U.S. detention facility at Guantanamo Bay.”125 The president himself has ramped up his rhetoric. While he originally described “normalization [as] ‘fine,’” he has since referred to Cuban communism as a “depraved ideology.”126 Thus, policy solutions which even attempt to move toward a lifting of the embargo through administrative measures will more than likely wither under administration scrutiny. Consequently, any proposal that involves interaction directly with the Cuban government will be unavailable during the Trump administration, which precludes public-private partnerships between Cuba and Major League Baseball—themselves impermissible under the CACR save for some type of legislative action. Representative Jose Serrano, the originator of the Baseball Diplomacy Act, remains in Congress. He once again introduced the bill as H.R. 213 as recently as January 2019.127 This bill, however, is poised once again to die before it reaches the President’s desk. As of 2016, it had never moved out of subcommittee,128 and even if the newly elected Democratic majority of the 116th Congress voted for the bill, it would surely be blocked by the Senate or President.

U.S.C. 6001 and following), or any other provision of law; and (B) the restrictions imposed by section 902(c) of the Food Security Act of 1985. Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 22 U.S.C. §§ 6021–6091 (2012). 124. See Strengthening the Policy of the United States Toward Cuba, supra note 53, at 48,876. 125. Ted Piccone, U.S.-Cuban Relations are About to Get Worse, BROOKINGS INST. (Apr. 16, 2018), https://www.brookings.edu/blog/order-from-chaos/2018/04/16/u-s-cuban- relations-are-about-to-get-worse/ [https://perma.cc/83JV-BL5Z]. 126. Michael J. Bustamante, Trump’s Rollback on Cuba, FOREIGN AFF. (June 19, 2017), https://www.foreignaffairs.com/articles/cuba/2017-06-19/trumps-rollback-cuba [https:// perma.cc/M3YA-FYMN]. 127. Baseball Diplomacy Act, H.R. 213, 116th Cong. (2019). 128. See Klein & Markus, supra note 101, at 291.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 471

As formulated by Zaworska, even a posting agreement would have the MLB pay so-called release fees “to the Cuban Government.”129 Furthermore, Zaworska recognizes that for such an agreement between the Cuban government and the MLB to exist, the United States must lift the embargo.130

IIA. THE 2018 CUBAN POSTING AGREEMENT

In December 2018, the MLB and Cuban Baseball Federation reached a deal similar in many respects to Zaworska’s posting agreement.131 The deal establishes that FCB players who otherwise meet the requirements of Rule 3(a)(ii) may now receive the MLB’s “Foreign Professional” designation and sign for lucrative international free agent contracts.132 Although the FCB “must release” such foreign professionals (and “may release” any amateur players) under the terms of the deal, any MLB team wishing to sign such players must pay the FCB a “corresponding Release Fee.”133 Such a fee for professionals would equal “20 percent [of the contract] for the first $25 million, 17.5% for the next $25 million and 15 percent for any amount over $50 million.”134 Such a fee would not be taken from the offered player contract. Rather, an interested team would pay the Release Fee in addition to their contractual payment to the players.135 Regardless, the 2018 deal would result in tens of

129. See Zaworska, supra note 49, at 161 (“The Posting System could require the MLB team signing a player to pay a release fee to the Cuban government, rather than the player directly paying the Cuban government.”). This form of posting system would directly contravene the financial transaction restrictions in the 2017 CACR and Libertad Act. 130. See, e.g., id. at 159 (“If the Cuban embargo is lifted, MLB and the Cuban Baseball Federation should enter into a contractual agreement. . . .”) (emphasis added). 131. MLB, MLBPA Reach Deal with Cuban Federation, MLB.COM (Dec. 19, 2018), https://www.mlb.com/news/mlb-announces-deal-with-cuban-federation/c-302036110 [https://perma.cc/LPL9-5QVA]. 132. See id. 133. Id. 134. See Trotta & Marsh, supra note 59. 135. See MLB, MLBPA Reach Deal with Cuban Federation, supra note 131. The deal additionally includes scouting, travel, representation, and international arbitration provisions. As noted by the MLB, “[r]eleased FCB players will be scouted and signed in Cuba . . . and will travel to the United States or Canada . . . pursuant to a standard work visa. A former FCB player . . . may return to Cuba during the off-season.” In addition to the financial transaction provisions of the CACR discussed below, the deal’s travel allowances may

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

472 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 millions of dollars funneled to the Cuban Baseball Federation. Unlike Zaworska’s proposed posting agreement, the 2018 deal between the MLB and Cuban Baseball Federation attempts to dodge the embargo via a liberal interpretation of the embargo’s terminology. While Zaworska recognized the Cuban Baseball Federation as within the purview of the embargo, the MLB has operated under the assumption that the Cuban Baseball Federation is not covered under the embargo’s list of financial transaction restrictions.136 Michael McCann, the Dean of the University of New Hampshire School of Law who moonlights as a legal analyst for Sports Illustrated, has noted, however, that while the Treasury Department has indicated that this Obama-era interpretation was still valid on paper, many administration officials have cast doubt on the agreement’s ability to skirt the embargo’s prohibitions on financial transfers to the Cuban government. He argues “that the MLB’s deal ‘would institutionalize a system by which a Cuban body garnishes the wages of hard-working athletes who simply seek to live and compete in a free society.’”137 McCann argues that, to quash the deal, the Trump administration could determine that “even if the FCB is not part of the Cuban government, it might be regarded as too closely tied to the Cuban government . . . in violation of the embargo,”138 a forecast that would later be proven correct.139

violate the 2017 CACR, which requires that all “travel-related transactions authorized pursuant to this section must be for the purpose of engaging, while in Cuba, in a full-time schedule of activities that enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities.” Cuban Assets Control Regulations, 82 Fed. Reg. 51,998, 51,999 (proposed Nov. 9, 2017) (to be codified at 31 C.F.R. pt. 515). 136. See Sheinin & DeYoung, supra note 5 (“In 2016, under the Obama administration, MLB obtained a license from the Office of Foreign Assets Control . . . to enter into a business arrangement with the FCB. . . . League officials . . . confirmed with OFAC that the license was still valid.”). 137. Michael McCann, How the MLB-FCB Deal Could Face Legal Hurdles, Political Resistance, SPORTS ILLUS. (Dec. 22, 2018), https://www.si.com/mlb/2018/12/22/legal- breakdown-mlb-cuba-fcb-deal [https://perma.cc/W6JS-QA3R]. 138. Id. 139. David Waldstein & Michael Tackett, Trump Ends Deal Between M.L.B. and Cuban Baseball Federation, N.Y. TIMES (Apr. 8, 2019), https://www.nytimes.com/2019/ 04/08/sports/mlb-cuba-donald-trump.html [https://perma.cc/W7PH-8UB4] (“The Trump administration said that the deal constituted a violation of trade laws because the Cuban federation was part of the government in Havana – a departure from the previous administration’s stance.”).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 473

Indeed, the 2017 CACR prohibit any financial transactions between any “person subject to U.S. jurisdiction” and provide a list of shell companies and organizations “that are under the control of, or act for or on behalf of, the Cuban military, intelligence, or security service or personnel,”140 particularly if those financial transactions would “disproportionately benefit such services or personnel at the expense of the Cuban people or private enterprise in Cuba.”141 The State Department’s list of organizations includes 205 banned organizations, including those in sectors not traditionally associated with military or intelligence operations such as real estate, rum production, hospitality, fashion, advertising, and telecommunications.142 While the Cuban Baseball Federation is not included on the State Department list,143 commentators have pointed out that multiple large holding companies included on the list may encompass the FCB.144 In 2018, Alison Peck of West Virginia University College of Law predicted that “with such an extended web of ownership . . . OFAC is highly unlikely to entertain MLB’s proposal.”145 Nor are the connections between Cuban baseball, the Cuban military, and the Communist Party simply the fruits of speculative political imaginations in the Trump administration. Since “the initial years of the revolution, the [Cuban] armed forces played an important role in organizing physical culture activities.”146 As late as the 1980s, the Cuban military established “military sports clubs” that were interconnected with “Cuban youth groups” in the world of sports.147 Far from being an artifact of the Reagan administration, scholars note that “should Cuba be threatened again . . . it seems

140. Cuban Assets Control Regulations, 82 Fed. Reg., at 51,999. 141. Id. 142. See U.S. Dep’t of State, Bureau of Econ. & Bus. Aff., List of Restricted Entities and Subentities Associated with Cuba as of July 26, 2019 (July 26, 2018), https://www.state.gov/cuba-sanctions/cuba-restricted-list/list-of-restricted-entities-and- subentities-associated-with-cuba-as-of-july-26-2019/ [https://perma.cc/N7HQ-W9TN]. 143. Id. 144. Bustamante, supra note 126 (noting that “military- conglomerates like GAESA control 50–60 percent of the island’s economy”). 145. Alison Peck, What Does Trump’s Cuba Policy Mean for Baseball?, INT’L TRADE L. PROF. BLOG (June 21, 2017), https://lawprofessors.typepad.com/inttradelaw/2017/06/what- does-trumps-cuba-policy-mean-for-baseball.html [https://perma.cc/L5N6-GV2G]. 146. See PETTAVINO & PYE, supra note 68, at 85. 147. Id. at 86.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

474 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 probable that the use of physical culture for military preparedness will be maintained, if not increased.”148 Based on this history, it is no surprise that, as predicted, the Trump administration blocked the deal in early April of 2019.149 The administration articulated their position on the same grounds as predicted by McCann and Peck, stating that “a payment to the Cuban Baseball Federation is a payment to the Cuban government.”150 Based on Cuban baseball’s historical connection to the Cuban military and intelligence apparatus, it seems unlikely that the administration would face major legal obstacles to this reclassification. Whether the executive branch will include an official designation by the State Department of the FCB as a “prohibited entity” under the CACR rules or simply a reclassification of the FCB as part of the Cuban government itself remains to be seen. Nevertheless, the nullification of the agreement comes in the midst of a more aggressive policy toward the Cuban government. Just weeks after the announcement, the U.S. government began placing a series of increasingly stringent general restrictions on non-family travel to Cuba151 and announced it would “allow U.S. citizens to sue foreign businesses using property seized during the 1959 Cuban revolution, reversing two decades of policy.”152 Despite these latest steps, the 2018 deal may not be completely dead. In response to the Trump administration’s blocking actions, the MLB has taken steps to negotiate with President Trump by hiring a lobbyist previously allied with his administration and

148. Id. at 232. 149. See Jared Diamond & Vivian Salama, Trump Administration Blocks Baseball Players from Cuba, WALL STREET J. (Apr. 8, 2019), https://www.wsj.com/articles/trump- administration-set-to-tighten-rules-for-baseball-players-from-cuba-11554747444 [https://perma.cc/HXP2-TFLC]. 150. See id. 151. See Niraj Chokshi & Frances Robles, Trump Administration Announces New Restrictions on Dealing with Cuba, N.Y. TIMES (Apr. 17, 2017), https://www.nytimes.com/ 2019/04/17/world/americas/cuba-trump-travel-lawsuits.html [https://perma.cc/2GKY- UY43]; see also Conor Finnegan, Trump Administration Restricts US Travel to Cuba by Banning Group Tours, Cruise Ship Port Calls, ABC (June 4, 2019), https://abcnews.go.com/ Politics/trump-admin-restricts-us-travel-cuba-banning-group/story?id=63478154 [https:// perma.cc/UA3Q-QHGG]. 152. Jordan Fabian, Trump Reverses Policy, Allows Lawsuits Against Business in Cuba, THE HILL (Apr. 17, 2019), https://thehill.com/homenews/administration/439280-trump- reverses-policy-allows-lawsuits-against-businesses-in-cuba [https://perma.cc/87R7-8XUJ].

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 475

2016 campaign.153 Commissioner Manfred has also enlisted legendary Yankees pitcher Mariano Rivera to personally speak with President Trump regarding the deal.154 Additionally, the administration has indicated its willingness to help renegotiate the 2018 deal so long as the MLB aids the U.S. government regarding its policy toward the ongoing humanitarian crisis in Venezuela.155 In response, the league barred all active players from participating in the Venezuelan winter league during the 2019–2020 offseason.156 Meanwhile, defections under the “Joe Cubas” model have continued unabated.157

III. THE POSSIBLE EMERGENCE OF UNILATERAL CUBAN LEGAL ACTION

While the 2018 MLB-FCB agreement is the most recent casualty of the United States’ policy towards Cuba, it nonetheless has raised important questions about whether the United States ought to recognize, as a matter of law, Cuba’s financial stake in its players’ careers. Now that the MLB has publicized its agreement with the FCB, these questions exist regardless of whether the Trump

153. Brian Schwartz, MLB Hires Trump-Allied Lobbying for Guidance on “Trafficking” of Cuban Baseball Players, CNBC (May 13, 2019), https://www.cnbc.com/2019/05/13/mlb- hires-trump-allied-lobbying-firm-over-cuban-baseball.html [https://perma.cc/S62M-AZW6]. 154. See Bill Madden, Cooperstown Confidential: Mariano Rivera Helps MLB Lobby President Trump on Deal with Cuban Baseball Federation, N.Y. DAILY NEWS (Jul. 21, 2019), https://www.nydailynews.com/sports/baseball/yankees/ny-mariano-rivera-hall-of- fame-ceremony-20190721-5ofsdubn6naxnjzp4ws7cfnxcy-story.html [https://perma.cc/ QU7C-682R]. 155. Franco Ordoñez, Trump Will Play Ball with MLB on Cuban Players if League Helps with Venezuela, NPR (June 12, 2019), https://www.npr.org/2019/06/12/731966442/ trump-will-play-ball-with-mlb-on-cuban-players-if-league-helps-with-venezuela [https:// perma.cc/6TKA-753Z]. 156. Jeff Passan, MLB Bans Playing in Venezuela Amid Trump Order, ESPN (Aug. 22, 2019), https://www.espn.com/mlb/story/_/id/27442220/mlb-bans-playing-venezuela-amid- trump-order [https://perma.cc/Z3EC-DQ4K]; see MLB Bans Players from Venezuelan Winter League After Donald Trump’s Embargo, SPORTS ILLUS. (Aug. 23, 2019), https://www.si.com/mlb/2019/08/23/mlb-ban-venezuelan-winter-league-donald-trump- embargo [https://perma.cc/QNX9-YNVP]. 157. See James O’Connell, Yoelkis Cespedes, Yoenis’ Half-Brother, Defects from Cuban National Team, N.Y. DAILY NEWS (June 26, 2019), https://www.nydailynews.com/ sports/baseball/ny-yoelkis-cespedes-yoenis-brother-cuba-defect-mlb-prospect-20190626- umwef3run5erfbvz4eagpwqnae-story.html [https://perma.cc/CA99-DRYZ].

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

476 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 administration eventually approves this deal or a similar one. If the agreement clears OFAC regulatory hurdles, then the United States will have tacitly agreed to a status quo in which an arm of the Cuban government, or at least a state-sanctioned organ of that government, has a legitimate legal interest in its players’ movements and salaries. This is because, notably, while the MLB-FCB deal minimizes the monetary advantages of Cuban players defecting to another country and then seeking admission into the U.S. as per the model practiced by Yasiel Puig,158 even players who choose to defect rather than participate would fall under the purview of the deal.159 Thus, under the deal, Cuba has a sort of ownership claim over its players that exists separately from its legal jurisdiction over them. Even if this particular deal is quashed, its acceptance by the MLB as legitimate represents the enactment of an idea that has persisted throughout the possible solutions discussed in Part II, namely, the Cuban government’s pseudo-ownership of Cuban-born baseball players.160 This section discusses the idea of the state’s quasi-ownership of its citizenry and highlights two unilateral legal actions Cuba could take in the future if it the MLB legitimizes such a worldview. The first is Cuba’s possible use of international treaties to impose legal

158. See McCann, supra note 137. McCann notes that such players “would prefer that option . . . for personal or political reasons . . . [or] they might also believe they would net a more lucrative contract.” Id. 159. Id. 160. See, e.g., Ottenson, supra note 95, at 772–73 (arguing for a system that “will in effect allow MLB teams to purchase a country’s interest in its player’s talent”); Kaminsky, supra note 97, at 226 (emphasizing that the Cubans view their baseball players as “prideful assets” that the government may not be willing to “give up”); Klein & Markus, supra note 101, at 310 (ostensibly arguing for the use of Cuban ballplayers as bargaining chips in a committee balancing “the economic and social goals of each country”); Zaworska, supra note 49, at 162 (giving Cuba “sole discretion” in the valuation of its players and arguing a posting fee would constitute “necessary consideration” to the Cuban government “for the release of its most talented players”); Goorabian, supra note 105, at 459 (noting that a posting system would allow the Cuban government to “make money for itself” and “sell its players directly to the MLB”); Brewster, supra note 109, at 241 (lamenting that “the Cuban government receives nothing in return for the players that leave the island,” and that a posting system “could serve the Cuban government well”); Solomon, supra note 88, at 181 (pointing out that “it is unclear whether Raul Castro would be willing to hand over his baseball players to MLB”) (emphasis added); St. Pierre, supra note 117, at 815 (arguing that the way to “work with Cuba” is by “paying homage to the role Cuba played in the development of the players’ talent”). Notably, this was not always the case. See Greller, supra note 79, at 1705 n.236 (arguing that because a contract tax “would be solely controlled by MLB and not used to assist the Cuban government, the humanitarian waiver will not denigrate the ultimate intent of the law to promote democratization”).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 477 obligations on the third-party “stopover” countries that defectors gain residency in before moving on to the United States. The second is Cuba’s use of the American legal system to attempt to gain access to funds paid to human smugglers during the course of defections.

A. The Legal Regime of Cultural Property

The idea that the Cuban government has a controlling interest in its citizens is not a novel concept. Rather, it represents the culmination of a legal tradition in which valuable cultural artifacts belong to the citizenry of a state.161 Critics have argued that, in formulating a people’s property rights to cultural heritage and prohibiting “illicit transfers” of such cultural artifacts, “the Convention implies the existence of ‘licit’ transfers beyond UNESCO’s grasp.”162 John Merryman argues that a perception of cultural property as “part of a national cultural heritage” grants the overseeing nation certain controlling rights such as “national export controls and demands for . . . ‘repatriation.’”163 Thus, regardless of its geographic location, a cultural artifact is “not only subject to physical property based regimes but also intangible heritage regimes . . . cultural artifacts have ‘penumbras’—e.g. they incarnate or contain certain information or values.”164 In other words, ownership of a cultural object does not rest wholly with the physical

161. See Lyndel V. Prott & Patrick J. O’Keefe, ‘Cultural Heritage’ or ‘Cultural Property’?, 1 INT’L J. CULTURAL PROP. 307, 308 (1992) (highlighting examples of cultural property as including “ritual and ceremonial sites . . . whether or not they have been redesigned,” “natural sites held . . . to be of special meaning,” “artworks of every kind,” “objects of historic importance such as those related to important historical figures[,] objects of archeological importance,” “objects of scientific importance,” and “ideas on which new skills, techniques and knowledge are built . . . (e.g. samurai sword making in Japan)” and ritual or performative arts). Notably, Lyndel and Prott argue for a movement away from a property-based conception of cultural heritage, but their description nonetheless covers the sorts of things generally considered to be “cultural property.” 162. John Moustakas, Note, Group Rights in Cultural Property: Justifying Strict Inalienability, 6 CORNELL L. REV. 1179, 1184 (1989) (referring to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231). 163. John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT’L L. 831, 832 (1986). 164. Cortelyou C. Kenney, Addendum to Reframing Indigenous Cultural Artifacts Disputes: An Intellectual Property-Based Approach, 28 CARD. ARTS & ENT. L.J. 501, 532 (2011).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

478 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 possessor; rather, the society connected with the object has a competing ownership claim independent of physical control. This conception of cultural property parallels financial stake expressed in the 2018 MLB-FCB agreement. As discussed above, the 2018 deal requires interested major league teams to pay a required Release Fee to the Cuban Baseball Federation even if a player has already defected to a third-party country or to the United States.165 That is, regardless of the players’ physical or citizenship status, the deal considers them intangibly tied to Cuba.166 Thus, as one critic has argued, “the deal rewards and perpetuates Cuba’s Communist-style system in which players are the property of the state, not free individuals who can sell their talents on the open market.”167 The National Security Council took a similar position in its official decision, positing that the deal designated players as

165. See McCann, supra note 137. 166. This is in direct contrast to posting agreements with the Japanese NPB and South Korean KBO, in which those leagues receive posting fee payments for players currently signed with a local team. These agreements reflect more commonly understood contractual agreements in professional sports. See MLB, Korean Posting System, http://m.mlb.com/ glossary/transactions/korean-posting-system [https://perma.cc/5GC6-J925]; MLB, Japanese Posting System, http://m.mlb.com/glossary/transactions/japanese-posting-system [https:// perma.cc/UR7E-ZSBH]. 167. Elliott Abrams, Trump Should Veto MLB’s Foul Deal with Cuba, NAT’L REV. (Dec. 27, 2018), https://www.nationalreview.com/2018/12/mlb-cuba-deal-payoff-to-communist- regime/ [https://perma.cc/Q2EE-U5CF]. Abrams also points out that “the vice president of the FCB has for years been none other than Fidel Castro’s son Antonio Castro Soto.” Id.; see McCann, supra note 137 (citing Paul Martin, Castro’s Son, the Big Hitter for Cuban Baseball, EVENING STANDARD (Mar. 22, 2016), https://www.standard.co.uk/ news/world/castro-s-son-the-big-hitter-for-cuban-baseball-a3208991.html [https://perma.cc/ 8CFX-BV6B]) (acknowledging that “the White House is surely aware that Fidel Castro’s son, Antonio Castro-Soto, has served as vice president of the FCB”). Castro-Soto arguably falls directly under the umbrella of the embargo. The CACR includes a list of “Prohibited Officials” in addition to the State Department list of banned entities. These include: Ministers and Vice-Ministers; members of the Council of State, and the Council of Ministers; members and employees of the National Assembly of People’s Power; members of any provincial assembly; local sector chiefs of the Committee for the Defense of the Revolution; Director Generals and sub- Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors, and deputy editors of Cuban state-run media organizations and programs, including newspapers, television, and radio; and members and employees of the Supreme Court (Tribuno Supremo Nacional) (emphasis added). Cuban Assets Control Regulations, 82 Fed. Reg. 51,998, 51,999−52,000 (proposed Nov. 9, 2017) (to be codified at 31 C.F.R. pt. 515).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 479

“property of the Cuban state.”168 The cultural property idea also represents the trend in the scholarly literature, which almost universally considers Cuba as deserving compensation (whether through funds or services) in exchange for authorizing the free movement of its ballplayers.169 Given baseball’s symbolic and historical significance to the Cuban people,170 one intellectual tradition claims that the Cuban government and citizenry have a certain stake in those players based on their historical investment and stock placed in them throughout their development. While the idea of humans as cultural “property” per se does not commonly appear in the relevant academic literature, certain states, notably Japan and Korea, have granted a designation of high cultural value to “living national treasures.”171 UNESCO has sought in the past to expand this type of classification system globally.172 In the alternative, the agreement at the very least classifies the intangible work product of the Cuban ballplayers as not wholly belonging to the players (or, during their employment, to their employing MLB team), but rather being shared by the players and the Cuban government.173 In this sense, the Cuban Baseball Federation doesn’t have a stake in the players as individuals, but rather in the players’ baseball prowess. Under this conception, each swing of the

168. Michael Weissenstein, Trump Administration Ends MLB/Cuba Baseball Deal, ASSOCIATED PRESS (Apr. 8, 2019), https://www.apnews.com/c42e1215334c4251b4ddbdd06 dc3e9b5 [https://perma.cc/4AKW-AMZQ]. 169. For a list of remarks in the scholarly literature, see supra note 160. 170. See, e.g., Brown, supra note 64. 171. See, e.g., Noriko Aikawa-Faure, Excellence and Authenticity: ‘Living National (Human) Treasures’ in Japan and Korea, 9 INT’L J. INTANG. CULTURAL PROP. 37 (2014). While the assertion of cultural property rights over individuals could theoretically violate multiple international agreements, including the International Covenant on Civil and Political Rights, art. 9, adopted Dec. 16, 1966, 999, U.N.T.S. 171, this avenue has largely been left unexplored. 172. See UNESCO, GUIDELINES FOR THE ESTABLISHMENT OF NATIONAL “LIVING HUMAN TREASURES” SYSTEMS (2002). 173. The idea of intangible work product of individuals as cultural property is far more mainstream than the conception of individuals themselves as cultural property. This makes sense, considering cultural property already protects artistic creations and other endeavors first crafted by individuals. See Prott & O’Keefe, supra note 161, at 308 (including ideas such as “samurai sword making in Japan[,] beadwork in Sarawak[,] mat weaving in the Maldives” as well as “music and dance” within the realm of cultural property); see also Geoffrey R. Scott, A Comparative View of Copyright as Cultural Property in Japan and the United States, 20 TEMPLE INT’L & COMP. L.J. 283 (2006).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

480 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 bat, diving catch, and stolen base is as symbolically valuable to the Cuban people as works of art or historical sites. As an authoritarian communist state rated as “Not Free” by international watchdog groups,174 any ownership stake of the Cuban people in the work- product of its former ballplayers, or of the players themselves, is likewise controlled by the Cuban government and ruling Communist party. This fact makes the idea of players’ work product as intangible cultural property uniquely troubling, as there are no democratic checks to determine who such cultural property would be used. Thus, the 2018 MLB-FCB deal expands the cultural property worldview to the limits of an authoritarian country, and it legitimates a legal regime in which the Cuban government can assert property claims over its citizens as a means of enriching the government.175

B. Use of International Treaties Against Third-Party Countries

By codifying the Cuban government’s partial ownership claims over the value of its native players, the MLB has in essence lent legitimacy to Cuba’s ability to take other legal action to retain or exercise such a claim, even if players attempt to defect from the country. Through the historical actions of UNESCO, the United Nations has already indicated a general sympathy toward international recognition of “living national treasures.”176 One international treaty, discussed below, may allow them to exercise

174. FREEDOM HOUSE, FREEDOM IN THE WORLD 2018, Cuba (2018), https:// freedomhouse.org/report/freedom-world/2018/cuba [https://perma.cc/2LJB-7AZ7]. The Freedom House profile of Cuba describes the nation as a “one-party communist state that outlaws political pluralism, suppresses dissent and . . . continues to monopolize most economic activity in state enterprises.” Id. 175. While one could argue that the intangible cultural property regime had already been legitimated by the MLB posting agreements with Japan and Korea, these two countries are relatively free and do not place authoritarian restrictions on the rights and freedom of movement of their citizenry. Japan is described as “a multiparty parliamentary democracy” in which “political rights and civil liberties are generally well respected.” FREEDOM HOUSE, FREEDOM IN THE WORLD 2018, Japan (2018) https://freedomhouse.org/report/freedom- world/2018/japan [https://perma.cc/5K2S-4DAU]. Likewise, South Korea is listed as a “democratic system featur[ing] regular rotations of power and robust political pluralism” in which “personal freedoms are generally respected.” FREEDOM HOUSE, FREEDOM IN THE WORLD 2018, South Korea (2018) https://freedomhouse.org/report/freedom- world/2018/south-korea [https://perma.cc/HPB6-AMML]. Furthermore, as discussed above, the posting agreements with Japan and Korea apply largely to players currently signed with teams in those countries’ highest professional leagues. See MLB, supra note 166. 176. See UNESCO, supra note 172.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 481 legal claims against the third-party countries in which defectors achieve residency on their path to the United States. Cuban players seeking to defect most often seek residency in one of three third-party states before completing their travel to the United States: Mexico, Haiti, and the Dominican Republic.177 Cuba has a functioning extradition treaty with Mexico178 that it can use to exert claims over criminals. That treaty, however, only applies to individuals who have committed an action considered a crime in both countries,179 meaning defectors likely would not fall under its purview. However, Cuba could take legal action directly against the three third-party states mentioned here for not adhering to their international obligations under the United Nations Convention Against Transnational Organized Crime.180 The Convention and its supplementing Protocol grant certain rights to signatories and impose a series of obligations on states in which human smuggling occurs. That supplement, known as the Palermo Protocol Against the Smuggling of Migrants by Land, Sea and Air, applies the Convention’s provisions to “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.”181 Cuba could theoretically exercise claims under these provisions to not only pressure Mexico, Haiti, and the Dominican Republic to increase

177. See Weaver, supra note 28. 178. Norma Gutierrez, Cuba; Mexico: Relationship Re-Launched, Agreements Signed, L. LIBR. CONG. GLOB. L. MONITOR (Nov. 8, 2013), http://www.loc.gov/law/foreign- news/article/cuba-mexico-relationship-re-launched-agreements-signed/ [https://perma.cc/9ZMB-Z78D]. 179. See Inicia Tratado de Extradición México-Cuba, EL ECONOMISTA (Apr. 29, 2015), https://www.eleconomista.com.mx/politica/Inicia-tratado-de-extradicion-Mexico-Cuba- 20150429-0197.html [https://perma.cc/74D6-KJ62]. 180. G.A. Res. 55/25, annex, United Nations Convention Against Transnational Organized Crime (Nov. 15, 2000). The Convention seeks to “promote cooperation to prevent and combat transnational organized crime more effectively.” Id. art. 1. Cuba, Mexico, Haiti, and the Dominican Republic are all signatories. United Nations Convention Against Transnational Organized Crime, UNITED NATIONS TREATY COLLECTION: STATUS OF TREATIES, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII- 12&chapter=18&clang=_en [https://perma.cc/LV9L-AA2W] (last visited Jan. 26, 2020). 181. G.A. Res. 55/25, annex III, Protocol Against the Smuggling of Migrants by Land, Sea and Air, arts. 2, 3(a) (Nov. 15, 2000) [hereinafter Land, Sea and Air Protocol]. The Protocol points out that, “unless otherwise provided,” all of the Convention’s legal rights and obligations “shall apply, mutatis mutandis,” to migrant smuggling. Id. art. 1(2).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

482 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 restraints on human smugglers, but also to gain financial compensation via seized smuggling funds. First, under the Protocol, Cuba can dispute whether Mexico, Haiti, and the Dominican Republic are sufficiently adhering to their obligations to fully prosecute and prevent the smuggling of Cuban refugees. As detailed above, defectors often enlist the help of transnational criminal enterprises comprised of human smugglers, drug traffickers, and other syndicates. Both the supplementary Protocol to the Convention and the main body of the Convention itself impose requirements that states take certain steps to prosecute transnational crime and cooperate with claimant states.182 Particularly, because Mexico, Haiti, and the Dominican Republic are all “located on routes along which migrants are smuggled,”183 the Protocol requires them to share “consistent with their respective domestic legal and administrative systems, relevant information” on applicable law enforcement methods and procedures.184 Additionally, the Convention notes that signatories “shall cooperate closely with one another, consistent with their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offences covered by this Convention.”185 In particular, these cooperative measures include “exchang[ing] information and coordinat[ing] administrative and other measures taken as appropriate for the purpose of early identification of the offences covered by this Convention.”186 The Cuban government can request cooperation from Haiti, Mexico, and the Dominican Republic under these provisions, and theoretically could bring a non-frivolous claim against these third-party governments for not fulfilling their obligations completely. The evidence of compliance failure rests in the defectors’ stories themselves. As detailed above, famous defectors such as Yasiel Puig

182. Land, Sea and Air Protocol, supra note 181, art. 7 (“States Parties shall cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea, in accordance with the international law of the sea.”). The Protocol goes on to note multiple measures states may take in order to “cooperate to the fullest extent possible.” See id. art. 8; see also Convention Against Transnational Organized Crime, supra note 180, art. 27(1) (“States Parties shall cooperate closely with one another, consistent with their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offenses covered by this Convention.”). 183. Land, Sea and Air Protocol, supra note 181, art. 10(1). 184. Id. art. 10(1)(a)-(f). 185. Convention Against Transnational Organized Crime, supra note 180, art. 27. 186. Id. art. 27(f).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 483 and Jose Abreu spent months in their third-party countries working with criminal syndicates to fabricate residency papers. The sheer number of defectors that successfully make it to the United States gives Cuba evidence that these third-party governments are derelict in their responsibilities under the Convention.187 The Convention also provides provisions for the confiscation and seizure of funds and illegal gains associated with transnational crime.188 In conjunction with the Protocol, these provisions extend to illegal gains obtained by criminals in the course of illegal migrant smuggling. There are two methods through which Cuba could stake a claim under the Convention for the disbursal of seized smugglers’ funds. First, the Cuban Baseball Federation could assert its rights as “bona fide third party”189 so as to gain access to the funds prior to seizure by the third-party government.190 The MLB-FCB deal, along with its underpinning cultural property legal regime, grants the FCB legitimate status as a third party because of its new “ownership right” over players. A more likely scenario is for the Cuban government to assert a claim over seized funds via Article 14(2) of the Convention, given the Convention’s grant of “priority consideration” to state actors in returning confiscated funds.191 This provision would allow Cuba to claim seized funds for “compensation to the victims of the crime or return such proceeds of crime to their legitimate owners.”192

187. Notably, article 18 of the Protocol requires the “return of smuggled migrants” to their country of origin. Land, Sea and Air Protocol, supra note 181, art 18(1). This is a fascinating wrinkle to Cuba’s choice of using the Protocol to impose requirements on third- party nations. Cuba did not allow defectors to return until 2012, and maintains discretion to block the return of any defectors “for reasons of defense and national security.” See Juan O. Tamayo, Cuba to Welcome Back Many Who Left, CHRISTIAN SCI. MONITOR (Oct. 26, 2012), https://www.csmonitor.com/World/Americas/2012/1026/Cuba-to-welcome-back-many-who- left [https://perma.cc/T5PU-7LUV]. Yet, under the Protocol, if third-party nations do crack down on migrants, Cuba has a reciprocal obligation of accepting the return of any “nationals.” See Land, Sea and Air Protocol, supra note 181, art. 18(1). 188. See Convention Against Transnational Organized Crime, supra note 180, art. 12. 189. Id. art. 12(8). 190. See id. art. 12(1)(a)-(b). 191. Id. art. 14(2) (“[W]hen acting on the request made by another State Party in accordance with article 13 of this Convention, States Parties shall, to the extent permitted by domestic law and if so requested, give priority consideration to returning the confiscated proceeds of crime or property to the requesting State Party so that it can give compensation to the victims of the crime or return such proceeds of crime or property to their legitimate owners.”). 192. Id.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

484 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2

Under the cultural property conception, however, the entire Cuban people, represented by the Cuban government, are the “victims” of the smuggling of the country’s prized baseball players because of those players’ value to Cuban society. Cuba thus has a plausible claim for seized funds by third-party countries as long as it pledges to use the funds for aiding its citizenry. As noted above, the supplementary Palermo Protocol extends the Convention’s obligation directly into the realm of migrant smuggling. The Protocol additionally grants a mechanism for Cuba to level all these legal claims via international arbitration, with subsequent referral to the International Court of Justice. Article 20 of the Protocol indicates that “any dispute between two or more States Parties . . . that cannot be settled through negotiation . . . shall, at the request of one of those State Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States parties may refer the dispute to the International Court of Justice.” While Cuba does not consider itself bound by the arbitration measures of the Convention or Protocol, Mexico, Haiti, and the Dominican Republic have no such reservations, meaning they may fall subject to these provisions.193 Such an arbitral tribunal would provide Cuba with a neutral venue, rather than a domestic court in a third-party country, in which to level its claims.

C. Cuban Claims in Criminal Forfeiture Cases in U.S. Courts

If the Trump administration were to approve the deal, it would also grant an executive imprimatur to the idea of a cultural property-based approach to the domestic legal sphere. When compared to the ICJ or arbitration panels, the American courts would be far less sympathetic to cultural property claims by the Cuban government or FCB. Nevertheless, Cuba could launch a third-party claim for funds seized by the American government during the course of criminal prosecution of the smugglers.194 Cuba would launch the claim under 21 U.S.C. § 853(n)(2), which states that “any

193. Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime, UNITED NATIONS TREATY COLLECTION: STATUS OF TREATIES, https://treaties.un.org/Pages/ViewDetails.aspx ?src=TREATY&mtdsg_no=XVIII-12-b&chapter=18&clang=_en [https://perma.cc/LY8K- E4DH] (last visited Mar. 10, 2020). 194. 21 U.S.C. § 853(n)(1).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 485 person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may, within thirty days of the notice or his receipt of notice under paragraph (1) . . . petition the court for a hearing to adjudicate the validity of his alleged interest in the property.”195 Federal prosecutors have, in the past several years, engaged in several high-profile prosecutions of the American-based baseball agents working with international smugglers. The players themselves have detailed the high sums of money they have paid to American-based criminal syndicates to facilitate their entry into the United States.196 American smugglers, as detailed at trial, received thirty percent of the players’ contract value, and accomplice agents netted five percent.197 Such a sum is even higher than the Release Fee scheme outlined in the 2018 MLB-FCB agreement, and the Cuban government’s agreement to the 2018 deal leaves no doubt that the country would desire access to the seized funds of smugglers. Notably, the ongoing FCPA investigation into the MLB and multiple individual teams would expose large sums of money to third-party

195. Id. Furthermore, regarding a remedy, payment of the disbursed smugglers’ funds to Cuba would fall under the purview of § 853(n)(6)(A) if Cuba could prove either that it had a right to the funds “superior to any right, title, or interest of the defendant at the time of the commission of the acts.” 196. Cuban Baseball Players Like Jose Abreu and Leonys Martin Paid $15 Million to Smugglers for Help Defecting, N.Y. DAILY NEWS (Apr. 26, 2016), https:// www.nydailynews.com/sports/baseball/cuban-baseball-players-paid-15-million-smugglers- article-1.2615560 [https://perma.cc/L2AD-L7V3] (detailing the statements of federal prosecutors who claim the players paid a $15 million sum to a “South Florida-based smuggling ring” for services such as “phony documents, false identities and surreptitious boat voyages to Mexico, Haiti and the Dominican Republic”). 197. Prosecutors: Florida Men Smuggled Cuban Players to Get Rich, USA TODAY (Mar. 14, 2017), https://www.usatoday.com/story/sports/mlb/2017/03/14/closing- arguments-set-for-cuban-baseball-smuggling-trial/99154848/ [https://perma.cc/9BX9- VZ5W]. Interestingly, the payment of alarmingly high percentages of professional athletic contracts is not constrained to the world of federal prosecutions. See, e.g., Peter Keating & Brin-Jonathan Butler, This Way Out, ESPN (Feb. 7, 2014), http://www.espn.com/ boxing/story/_/id/10392313/the-high-priced-underground-economy-smuggling-champion- cuban-boxers-espn-magazine [https://perma.cc/5MUE-Z975] (detailing how Cuban defector and boxer Guillermo Rigondeaux paid twenty-five percent of his earnings to his manager Gary Hyde). If the Cuban government asked for similar percentages for forfeited funds in its § 853(n) proceedings as it receives in the MLB-FCB deal, the commonality of players willingly paying such large sums to agents and promoters would grant a higher level of credence to Cuba’s claim.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

486 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 claims if convictions lead to related criminal forfeitures.198 Notably, in order to petition for a third-party forfeiture hearing, Cuba need only demonstrate it has a greater claim to the seized funds than the defendant, not the victim of the crime.199 Nevertheless, even if the Cuban Baseball Federation were deemed exempt from the 2017 CACR, it is unrealistic to assume American courts would entertain such a claim from Cuba given the practical reality of the embargo. While U.S. courts may favor FCB claims over claims made directly by the Cuban government, the FCB’s current designation under the most recent CACR likely means neither claim is likely to succeed. While precedent does not exist regarding use of criminal forfeiture law by agents of foreign states, the statute’s indication of “any person” has been read broadly to include foreign nationals and corporate claimants. Thus, the deal could open the door for exploration of such a path.

IV. NORMATIVE ANALYSIS

The MLB-FCB posting agreement, like any policy regarding Cuban ballplayers, must balance concerns over the welfare of the ballplayers themselves with the danger of supporting the policy aims of their country of origin. On the one hand, Part I described the dangerous journeys defectors had to make in order to gain the highest compensation for their baseball talents. Now that the Trump administration has quashed this iteration of the deal, this system, in which the players place themselves at the mercy of vicious criminal gangs and extortionist agents, will remain the status quo. On the other hand, Part II explained how the deal effectively enacts a policy that legitimatizes Cuba’s ownership stake in either a) its citizens’ work product; or b) the citizens themselves. This seems morally troubling when combined with the historical tactics of Cuba’s ruling Communist Party, a practical concern that does not exist regarding similar posting agreements with Japan and South Korea. While Major League Baseball has determined that it has struck a balance between these two considerations, the league likely has not considered the possible long-term legal ramifications from setting this precedent, one in which the league has given its blessing to the

198. See Wertheim & Prine, supra note 63. 199. 21 U.S.C. § 853(n)(6)(A).

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 487 idea of “people as property of the state.”200 This is not merely a political criticism from the anti-Castro lobby. The commissioner of Cuban baseball has indicated that he subscribes to a similar worldview.201 Secondarily, the idea of Cuba establishing legal claims via the international instruments described in Part III would allow Cuba to effectively rob funds from smuggled players.202 The MLB-FCB posting agreement also falls prey to criticism from a wide array of literature emphasizing the negative consequences of giving certain types of foreign aid to authoritarian regimes that would grant such regimes continued ability to survive.203 These concerns extend across the ideological spectrum.204 Thus, the long-term consequences of such a deal may contribute to the continued consolidation of power by the Communist Party regime, contrary to the long-term policy goal of the United States of liberalization and political freedom on the island. Furthermore, the deal also serves as a domestic propaganda boon for the island’s government. Cuban state-run propaganda media has celebrated the deal.205 The Cuban government’s domestic approval will no doubt

200. Weissenstein, supra note 168. 201. See Frankel, supra note 17, at 427. 202. See, e.g., G.A. Res. 217 (III) A, Universal Declaration of Human Rights art. 17(1) (Dec. 10, 1948) (“Everyone has the right to own property alone as well as in association with others.”); International Covenant on Civil and Political Rights, supra note 171, art. 1(1) (“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development”) (emphasis added). 203. See Daniel Yuichi Kono & Gabriella R. Montinola, Does Foreign Aid Support Autocrats, Democrats, or Both?, 71 J. POL. 1, 2 (“[F]oreign aid indeed promotes political survival. . . . In the long run, autocratic leaders can stockpile aid as ‘slack resources.’”) (citations omitted). 204. See, e.g., William Easterly, Stop Sending Aid to Dictators, TIME (Mar. 13, 2014), http://time.com/23075/william-easterly-stop-sending-aid-to-dictators/ [https://perma.cc/ 6KCE-R4BY]; Doug Bandow, U.S. Foreign Aid Hinders More than It Helps, CATO INST. (Mar. 7, 2011), https://www.cato.org/publications/commentary/us-foreign-aid-hinders-more- it-helps [https://perma.cc/9MXA-8DPE]; David Francis, Foreign Aid Dilemma: Dictators on Our Dollar, BUS. INSIDER (Mar. 16, 2011), https://www.businessinsider.com/foreign-aid- dilemma-dictators-on-our-dole-2011-3 [https://perma.cc/737F-TN7X]; Misplaced Charity, ECONOMIST (June 11, 2016), https://www.economist.com/international/2016/06/11/ misplaced-charity [https://perma.cc/L3CV-AJSV]. 205. See Sigfredo Barros Segrera & Oscar Sanchez Serra, Cuban Baseball Federation and MLB Reach Historic Agreement, GRANMA (Dec. 20, 2018), http://en.granma.cu/ deportes/2018-12-20/cuban-baseball-federation-and-mlb-reach-historic-agreement [https://

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

488 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [58:2 increase the closer it moves from a world of dwindling athletic talent to one in which it receives high levels of compensation for their players’ departures. And, because of baseball’s historic value to the Cuban people, any policy viewed as a “victory” in this space will particularly resonate, amplifying the deal’s legitimizing effects for the Cuban government.

CONCLUSION

The 2018 posting agreement between Major League Baseball and the Cuban Baseball Federation is the culmination of a nearly two decade-long line of scholarly legal literature seeking to find a solution to the issue of Cuban ballplayer smuggling. While the agreement seeks to alleviate the dangerous journeys defecting Cuban players must make in order to reach the major leagues, its success in the Trump administration—like the scholarly solutions before it—is questionable at best. Nevertheless, the deal brings with it another legal tradition, one also evident in the scholarly literature surrounding Cuban ballplayers, that indicates the Cuban government has a sort of ownership claim over its ballplayers and citizens writ large. This ownership claim brings to mind ideas of intangible cultural property, and its acceptance via the 2018 deal may provide support for Cuba to exercise international legal measures to profit off of the misfortune of its defecting players. This conception of state ownership is morally dubious, and it provides a new wrinkle in how scholars and policymakers should analyze the 2018 posting agreement between the FCB and MLB. Jeffrey A. Greenberg*

perma.cc/8PVT-6S5U] (quoting the president of the Cuban Baseball Federation, Higinio Velez Carrion, who stated, “Today is a happy day for Cuban baseball, for the world, the people of Cuba and the United States”). * Juris Doctor Candidate, 2020, Columbia Law School. The author wishes to thank Thomas H. Lee, Leitner Family Professor of International Law at Fordham Law School and visiting professor at Columbia Law School, for overseeing this Note, as well as the staff of the Columbia Journal of Transnational Law for their contributions to the editing process.

(h) Greenberg (58-2) (Do Not Delete) 5/1/2020 5:24 PM

2020] CUBAN BASEBALL PLAYER SMUGGLING 489

Finally, the author wishes to thank the 2003 Florida Marlins, who instilled in him a lifelong love of baseball that helped to make this Note possible.