Bolsinger is still pitching! After a recent dismissal for lack of jurisdiction in California, former Major League Baseball pitcher Michael Bolsinger refiled claims against the Houston Astros in state court in Houston, Texas on May 13, 2021.  While asserting similar factual allegations as his original California complaint, the former Toronto Blue Jays pitcher has abandoned his previous unfair business practice causes of action in favor of claims for trade secret misappropriation under the Texas Uniform Trade Secrets Act and for conversion. Bolsinger claims that the pitching signs he used during his August 4, 2017 game against the Astros were trade secrets.

Baseball fans will recall the Astros defeating the Los Angeles Dodgers in the 2017 World Series. It was an exciting time for the Astros and fans, as the team was credited with bringing technological innovation and data-driven approaches to baseball. But the Astros’ victory was tainted with scandal after reporters disclosed that the Astros stole other teams’ pitching signs during the 2017 and 2018 seasons. Using a camera uniquely placed in center field during live games, Astros’ personnel would decode their opponents’ pitching signs and relay to the batter what kind of ball was coming. Bolsinger claims that this conduct by the Astros ended his MLB career because the sign stealing allegedly caused him to give up four runs to the Astros and to be sent back to the minor leagues for the rest of his career.

Bolsinger’s new complaint, however, raises a few novel issues – (1) are pitching signs trade secrets?; and (2) if so, do those signs belong to Bolsinger (and not the Blue Jays)? The court could easily dispense with this litigation if Bolsinger has no standing to bring a trade secrets claim. But the more difficult and nuanced question is whether the pitching signs are trade secrets, which will require Bolsinger to show among other things, that he took “reasonable measures under the circumstances to keep the information secret.” He may be able to establish that the signs were secret, judging superficially by the effort the Astros had to undergo to both capture and decode the signs.  Pitching signs are silent communication between the pitcher and the catcher; they are kept close to the body to keep them from being visible to the opponent; and the sequencing of the signs are often changed to prevent the opponent from decoding them.

But at the same time, the signs are actually visible to the public. The Astros used a center-field camera that merely captured what was happening openly and in real time.  Bolsinger will likely be fighting an uphill battle for these claims to survive dispositive motions.

As was made clear following the 2017 World Series, pitching signs are a key aspect of the baseball game. Well-executed and protected signs make for good wins. Poorly executed and known signs lead to losses. But the things that make America’s Pastime exciting and successful are not necessarily elements that will sway a court on trade secret issues.  This will certainly be an interesting case to watch.  While the score is currently Bolsinger – 0 Astros – 1, the second game in the series is only just beginning.

The case is Michael Bolsinger v. Houston Astros, LLC, 2021-28763/Court: 061, District Court of Harris County, Texas.