In an action that could lead to changes in the way Cuban baseball players are treated by Major League Baseball, recent defector Rolando Viera has threatened to take legal action against the commissioner's office unless he is declared a free agent.
The commissioner's office was served Tuesday with a copy of an impending lawsuit by Viera, ESPN.com learned. Viera's attorney, Alan Gura, said the request for a temporary restraining order against MLB placing Viera in the June 5-6 draft will be filed on Thursday in federal court in Tampa, Fla.
Viera, a 27-year-old, left-handed pitcher who left Cuba a month ago, is working out in Tampa in preparation for a showcase for scouts.
Major League Baseball regards Cuban defectors differently than other foreign players, forcing them into the draft unless they acquire residency in a third country. Viera argues that the policy violates federal civil rights laws that prevent employers from discriminating based on national origin.
Gura, who was hired by Viera's agent, Joe Kehoskie, said Viera is asking to be treated the same as players from the Dominican Republic, Mexico and other foreign countries where prospects are automatically regarded as free agents.
"Cubans are the only ones that baseball requires the commissioner's office to sign off on" as free agents, Gura said. The only other prospects forced into the draft are players from the U.S., Puerto Rico and Canada, where the amateur system, labor laws and access to scouts are considered similar.
Lou Melendez, baseball's vice president of international operations, denied that baseball discriminates against Cubans. Even if a player is a Cuban citizen and has not yet acquired his U.S. resident card with the Immigration and Naturalization Service -- a process that takes a minimum of one year -- baseball regards a Cuban player as a U.S. resident if he is now making his home in the U.S.
"If you're a resident of the U.S., you go into the draft," Melendez said. "The word 'resident' means one thing to the INS. But for Major League Baseball purposes, it means he's living here, receives mail here and has no intention to return."
Melendez declined to say how baseball would respond to Viera's request for free agent status.
In most cases, Cuban defectors have gotten around baseball's policy by seeking residence in a Caribbean, Central or South American country where players are not subject to baseball's draft. The arrangement has led to some odd pairings between player and nation, as well as charges of immigration abuse.
For instance, Viera's former teammate on Havana Industriales, Orlando "El Duque" Hernandez, defected in 1997 when he hopped into a fishing boat that was picked up off the Cuban coast by Bahamian officials. After Hernandez rejected an offer for a U.S. visa, he flew from the Bahamas to Costa Rica, where he quickly completed pre-arranged immigration paperwork and signed a $6.6 million offer with the New York Yankees as a free agent.
Some Costa Ricans contend its government showed improper favoritism to a baseball player. The Costa Rican government later investigated whether Hernandez's residency paperwork was properly granted. The outcome of the investigation is uncertain, but player agents say it has become more difficult for players to get residency in the country since then.
Baseball's policy on Cubans has never been tested legally. A former Department of Justice attorney familiar with baseball's policy said baseball is likely to lose the challenge because civil rights laws apply not just to U.S. citizens but non-citizens living in the U.S.
"My sense is that the major leagues will have a hard time giving a reason that allows them to discriminate," said Roger Clegg, an assistant deputy attorney general in the Office of Civil Rights from 1987-91. He is now general counsel for the Center for Equal Opportunity, a conservative think tank in Washington, D.C.
In the past, Major League Baseball officials have suggested that the U.S. embargo against Cuba allows them to treat Cuban players differently. But Clegg said the prohibition against U.S. companies doing business with the Cuban government bears no relation to the way an exile athlete can be treated.
"True, there's an embargo, but so what?" Clegg said. "That's a political fact that has nothing to do with how well a player can do the job" for a U.S. team.
Viera left Cuba on April 24 on a U.S. visa. He had been effectively suspended from his Industriales team a year ago after Cuban baseball officials suspected him of wanting to defect. He had been a member of the powerhouse Industriales team since 1993, but only broke into the starting rotation in his final three seasons.
Regarded as a control pitcher with a decent fastball for a left-hander, Viera was 8-6 with a 3.16 ERA in 2000, his final season. He was 10-4 with a 3.08 ERA in 1999, and 3-3 with a 1.66 ERA in '98. He was not selected to play internationally for any of Cuba's national teams.
The temporary restraining order seeks immediate relief for Viera, pending a preliminary injunction hearing that would likely occur sometime in June.
Kehoskie said he is hopeful a victory in court eventually could lead to the end of the series of strange journeys for Cuban players in which they often risk their careers and lives to get to the U.S. -- only to then depart for another country where they can be treated as free agents.
"These guys escape from socialism only to have it re-imposed on them once they get here," Kehoskie said. "Major League Baseball has this policy in place strictly for monetary purposes, as a mechanism to restrain signing bonuses and force Cubans to play for teams they didn't choose, whether it be small-market or cold-weather clubs. To use the embargo against these guys is laughable and wrong."
Melendez denies that baseball's policy is an attempt to prevent the wealthiest teams from acquiring the best Cubans. He said the high-revenue clubs already dominate the market, citing the Cleveland Indians' signing of pitcher Danys Baez to a $14.6 million contract in 1999 and the Yankees' signing of third baseman Andy Morales to a $4.5 deal in March.
About 50 Cuban baseball players have defected in the past decade, though most of them never made it to the majors. Viera was the fourth member of the Industriales team to leave since January 2000, when current Triple AAA Yankees pitcher Adrian "El Duquecito" Hernandez defected to Guatemala. Hernandez was followed in December by pitcher Mayque Quintero and infielder Evel Bastida, whose boat washed up near Key West, Fla.
Tom Farrey is a Senior Writer for ESPN.com. He can be reached at tom.farrey@espn.com
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