Rose v. Giamatti

MEMORANDUM AND ORDER

I. INTRODUCTION

This action by Peter Edward Rose against A. Bartlett Giamatti and others, initially filed in the Court of Common Pleas of Hamilton County, Ohio at Cincinnati, and removed to the United States District Court for the Southern District of Ohio on July 3, 1989, was transferred forthwith to the Eastern Division of this Court by an order issued by Judge Carl B. Rubin and Judge Herman J. Weber, Judges of this Court sitting in the Western Division at Cincinnati. In that transfer order, Judges Rubin and Weber stated:

Plaintiff is not just another litigant. He is instead a baseball figure of national reputation closely identified with the Cincinnati Reds and the City of Cincinnati. Under such circumstances, it would appear advisable that [this case] be transferred to a city of the Southern District of Ohio other than Cincinnati.

Although in that same order Judges Rubin and Weber expressed doubt whether this action is removable to federal court, that doubt was expressed, of course, without the benefit of the extensive briefs, voluminous exhibits and oral argument presented to the undersigned judge subsequent to removal. Within the expedited time schedule set by the Court and the parties, I have resolved those issues based upon the record now before me.

The Court emphasizes that the issues decided by this Memorandum and Order are solely questions of law concerning the jurisdiction of a United States district court when a case is removed from a state court based upon diversity of citizenship of the parties to the controversy. The essential facts relative to these jurisdictional issues are not in dispute, and the merits of the controversy between plaintiff Rose and defendant Giamatti are not before the Court at this time. The fact that a judge of the Court of Common Pleas of Hamilton County, Ohio, where this action was commenced, issued a temporary restraining order *909 against the defendants, while a relevant factor among all the circumstances, is clearly not dispositive of any of the jurisdictional issues confronting this Court. The sole question raised by the notice of removal and the motion to remand is whether, under applicable law, the federal court has jurisdiction over the subject matter of this action. For the reasons stated hereafter, I conclude that the action was properly removed to this Court, and that this Court does have jurisdiction over the action which I have a duty to recognize and to enforce.

II. PROCEDURAL HISTORY

Plaintiff, Peter Edward Rose, is the Field Manager of the Cincinnati Reds baseball team. In February of this year, then Commissioner of Baseball Peter V. Ueberroth and then Commissioner of Baseball-elect A. Bartlett Giamatti initiated an investigation regarding allegations that Rose wagered on major league baseball games. On February 23, 1989 Giamatti retained John M. Dowd as Special Counsel for the purpose of conducting the investigation. On May 9, 1989 Dowd submitted a report to Giamatti summarizing the evidence obtained during the investigation. Commissioner Giamatti ultimately scheduled a hearing concerning the allegations for June 26, 1989.

In an effort to prevent Commissioner Giamatti from conducting the June 26 hearing, Rose filed an action in the Court of Common Pleas of Hamilton County, Ohio, on June 19, 1989, seeking a temporary restraining order and preliminary injunction against the pending disciplinary proceedings. Named as defendants in that action were A. Bartlett Giamatti, Major League Baseball, and the Cincinnati Reds. The crux of the complaint 1 is Rose’s contention that he is being denied the right to a fair hearing on the gambling allegations by an unbiased decisionmaker. The complaint requests permanent injunctive relief, which, if granted, would prevent Commissioner Giamatti from ever conducting a hearing to determine whether Rose has engaged in gambling activities in violation of the Rules of Major League Baseball. Rose asks that the Court of Common Pleas of Hamilton County, Ohio determine whether he has wagered on major league baseball games, including those of the Cincinnati Reds.

Subsequent to a two-day evidentiary hearing, Common Pleas Court Judge Norbert Nadel issued a temporary restraining order on June 25, 1989. The order enjoined all defendants (1) from any involvement in deciding whether Rose should be disciplined or suspended from participation in baseball and (2) from terminating Rose’s employment as Field Manager of the Cincinnati Reds, or interfering with his employment in response to any action taken by Giamatti, or in retaliation for Rose having filed the action. Judge Nadel set July 6, 1989 as the date for a hearing on plaintiff Rose’s motion for a preliminary injunction. Commissioner Giamatti and Major League Baseball unsuccessfully sought review of the temporary restraining order in the Ohio Court of Appeals, First Judicial District, in Hamilton County, Ohio; the Court of Appeals held on June 28, 1989 that the temporary restraining order was not an appealable order.

On July 3, 1989, defendant Giamatti filed a notice of removal of the action from the state court to the United States District Court for the Southern District of Ohio, Western Division at Cincinnati, contending that the federal court has diversity jurisdiction over this action. Defendants Cincinnati Reds and Major League Baseball consented to the removal of the action. As previously noted, when the notice of removal was filed Judges Rubin and Weber issued an order transferring the case from the Western Division of this District to the Eastern Division for a random draw among the resident judges. The case was randomly drawn and assigned to the undersigned judge.

On July 5, 1989, Rose filed a motion to remand this action to the Court of Common *910 Pleas of Hamilton County, Ohio, asserting that there is a lack of complete diversity of citizenship between himself and the defendants, and that even if complete diversity exists, defendant Giamatti waived his right of removal by participating in the above-described proceedings in the state courts. At a conference of counsel held on July 5, 1989, the parties agreed and stipulated that the defendants would take no action against Rose until three days after the determination of the pending motion to remand. On July 10, 1989 the Cincinnati Reds filed a memorandum regarding the motion to remand, stating that the Reds take no position concerning the propriety of removal and have assumed an “entirely neutral” position in the litigation. The Commissioner filed a memorandum opposing the motion to remand on July 12, 1989, and Rose filed a reply memorandum on July 17, 1989. Oral argument was heard on July 20, 1989, and the Court, in order to decide the jurisdictional questions promptly, agreed to render its decision on July 31, 1989.

III. DIVERSITY JURISDICTION

The United States district courts are courts of limited jurisdiction, and the federal statute permitting removal of cases filed in state court restricts the types of cases which may be removed from state court to federal court. The removal statute provides in pertinent part that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). The statute also provides that except for a civil action founded on a claim arising under federal law, “[a]ny other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b).

Defendant Giamatti contends in his notice of removal that the district court has original jurisdiction of this action by virtue of 28 U.S.C. § 1332(a), which grants original jurisdiction to the district courts in civil actions where the amount in controversy exceeds $50,000 and the action is between citizens of different states. This jurisdiction of federal courts is commonly known as “diversity” jurisdiction. The reason for granting diversity jurisdiction to federal courts was stated many years ago by Chief Justice Marshall:

However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true that the Constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different States.

Bank of the United States v. Deveaux, 5 Cranch 61, 87, 3 L.Ed. 38 (1809). 2 The diversity statute has historically been interpreted to require complete diversity of citizenship: “... diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978) (emphasis in original). If diversity of citizenship is found to exist among the parties to this action and none of the defendants in interest properly joined and served is a citizen of Ohio, then the action is properly removable from the state court. If the required diversity of citizenship does not exist, then the action is not properly removable and must be remanded to the state court.

*911 With regard to the citizenship of the parties to this controversy, the complaint contains the following allegations concerning their identity and citizenship. Rose is alleged to be a resident of Hamilton County, Ohio. Commissioner Giamatti’s residence is not stated in the complaint; in the notice of removal, however, he is alleged to be a citizen of the State of New York. Defendant Major League Baseball is alleged in the complaint to be an unincorporated association headquartered in New York and consisting of the two principal professional baseball leagues (National and American) and their twenty-six professional baseball clubs. The Cincinnati Reds, dba the Cincinnati Reds Baseball Club, is identified in the complaint as an Ohio limited partnership (hereinafter referred to in the singular as the “Cincinnati Reds”).

The Court will accept as true for purposes of ruling on the motion to remand that plaintiff Rose is a citizen of the State of Ohio, that defendant Giamatti is a citizen of the State of New York, that defendant Cincinnati Reds is a citizen of the State of Ohio, 3 and that defendant Major League Baseball, assuming it exists as a legal entity, is comprised of the two major professional baseball leagues and their constituent twenty-six major league baseball clubs, at least one of which, the Cincinnati Reds, is a citizen of the State of Ohio.

In the present case, it appears from the allegations of the complaint that defendant Cincinnati Reds and defendant Major League Baseball are citizens of the same state as plaintiff Rose. 4 Recognizing that diversity jurisdiction is not demonstrated on the face of the complaint, defendant Giamatti includes in his notice of removal a number of allegations in support of his contention that this Court has diversity jurisdiction over this action such that it is properly removable. First, with respect to the defendant identified as Major League Baseball, the notice asserts that defendant Major League Baseball is not a “juridical entity,” but is only a trade name utilized by the professional baseball clubs of the American and National Leagues and thus has no citizenship for diversity purposes. Notice of Removal, ¶ 7. Second, the notice asserts that any citizenship ascribed to Major League Baseball should be disregarded for purposes of removal, “since Major League Baseball is not a proper party to this action and is at most a nominal party against which no claim or cause of action has been asserted.” Id. Finally, the notice asserts that Major League Baseball was “fraudulently joined” as a defendant for the purpose of attempting to defeat the removal jurisdiction of this Court. In a similar vein, the notice asserts that the defendant Cincinnati Reds is not a proper party to this action, is only a nominal party, and was fraudulently joined for the same purpose of defeating this Court’s removal jurisdiction. Id., at 11 8.

The issues framed by the notice of removal, the motion to remand, and the briefs of the parties are, accordingly, as follows:

1. Is the named defendant, Major League Baseball, a legal entity which has a state of citizenship for diversity purposes?

2. Can the citizenship of either Major League Baseball or the Cincinnati Reds be disregarded for diversity purposes?

3. If diversity of citizenship among the parties properly joined in this action is found to exist, has defendant Giamatti nevertheless waived his right to remove this action to federal court?

The Court will address each of these issues in turn.

A. THE CITIZENSHIP OF DEFENDANT MAJOR LEAGUE BASEBALL

Rose asserts that Major League Baseball is an unincorporated association created by *912 virtue of the execution of the “Major League Agreement,” 5 an agreement entered into by and between the National League of Professional Baseball Clubs and each of its twelve constituent member clubs, and the American League of Professional Baseball Clubs and each of its fourteen constituent member clubs. Rose argues that the Major League Agreement creates an unincorporated association which operates under the name Major League Baseball. He contends that the association has officers, has previously described itself as an unincorporated association, and has acted in this case and in other cases as an unincorporated association capable of bringing suit and subject to being sued. Commissioner Giamatti contends that Major League Baseball is merely a trade name and registered service mark under which the twenty-six major league professional baseball clubs do business with respect to certain commercial activities.

Although the parties have debated the nature of the unique organization created by the Major League Agreement, Rose asserts that in the final analysis it is of no consequence whether Major League Baseball is an entity created by the Major League Agreement or simply a collective name for the twenty-six major league professional baseball clubs acting in concert. 6 The Commissioner agrees that the critical issue to be resolved by this Court is not a determination of the nature of the association formed by the twenty-six major league professional baseball clubs, but rather whether those clubs are proper parties to this action for the purpose of determining the jurisdiction of this Court. 7

The Court agrees that, for the purpose of ruling on Rose’s motion to remand, the central issue is not whether Major League Baseball is the formal name of an unincorporated association created by the Major League Agreement or a trade name and service mark used by the major league baseball clubs in certain commercial activities. The critical issue is whether the presence of the two major leagues and their twenty-six clubs, if before the Court as defendants in the form of an unincorporated association, would destroy the necessary diversity of citizenship. Inasmuch as under the Court’s analysis which follows, the joinder as a defendant of the leagues and clubs as an unincorporated association doing business under the name Major League Baseball would not defeat the required diversity of citizenship, the Court, for purposes of this motion, will accept Rose’s contention that the twenty-six major league professional baseball clubs joined together in the Major League Agreement to form an unincorporated association known as Major League Baseball, and that the unincorporated association known as Major League Baseball is before this Court as a properly served defendant in this case.

It is undisputed that, for purposes of determining the citizenship of an unincorporated association, an unincorporated association has no citizenship of its own, but is a citizen of every state in which each of its constituent members is a citizen. United Steelworkers of America, AFL-CIO v. R.H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965); Brocki v. American Express Co., 279 F.2d 785, 787 (6th Cir.), cert. denied, 364 U.S. 871, 81 *913 S.Ct. 113, 5 L.Ed.2d 92 (1960). As the Court of Appeals for the Sixth Circuit stated in Sweeney v. Hiltebrant, 373 F.2d 491, 492 (6th Cir.1967), affirming dismissal of the case for lack of jurisdiction:

The district court found that no jurisdiction existed on the basis of diversity of citizenship since plaintiffs are citizens of Ohio, and the [defendant], a voluntary unincorporated association with Ohio members, must also be regarded as an Ohio citizen for diversity purposes. The court was correct in so holding.

See also Bundy v. Penn Central Co., 455 F.2d 277, 279 (6th Cir.1972); Grant County Deposit Bank v. McCampbell, 194 F.2d 469, 471 (6th Cir.1952); Salerno v. American League of Professional Baseball Clubs, 310 F.Supp. 729, 730 (S.D.N.Y.1969), aff'd, 429 F.2d 1003 (2d Cir.1970), ce rt. denied sub nom., Salerno v. Kuhn, 400 U.S. 1001, 91 S.Ct. 462, 27 L.Ed.2d 452 (1971).

The Cincinnati Reds Baseball Club, a citizen of Ohio, is one of the twenty-six major league baseball clubs which are members of the association doing business as Major League Baseball. Therefore, Major League Baseball is deemed to be a citizen of Ohio for diversity purposes. Because plaintiff Rose and the defendants Major League Baseball and the Cincinnati Reds are all citizens of Ohio, if either Major League Baseball or the Cincinnati Reds is a party properly joined in this action and whose citizenship, for diversity purposes, cannot be ignored, the lack of diversity of citizenship between plaintiff and all defendants would require the Court to conclude that the removal of the ease to this Court was improper. Consequently, the Court must determine whether, as the Commissioner contends, the citizenship of these defendants should be ignored for the purpose of determining whether the removal of this case to this Court was proper.

B. DETERMINATION OF PROPER PARTIES TO THIS ACTION FROM “THE PRINCIPAL PURPOSE OF THE SUIT’’

It is fundamental law that a plaintiff cannot confer jurisdiction upon the federal court, nor prevent a defendant from removing a case to the federal court on diversity grounds, by plaintiff’s own determination as to who are proper plaintiffs and defendants to the action. As Justice Frankfurter said:

Litigation is the pursuit of practical ends, not a game of chess. Whether the necessary ‘collision of interests,’ Dawson v. Columbia Trust Co., supra [197 U.S. 178], at 181 [25 S.Ct. 420, at 421, 49 L.Ed. 713 (1905) ], exists, is therefore not to be determined by mechanical rules. It must be ascertained from the ‘principal purpose of the suit,’ East Tennessee, V. & G.R. v. Grayson, 119 U.S. 240, 244 [7 S.Ct. 190, 192, 30 L.Ed. 382 (1886) ], and the ‘primary and controlling matter in dispute,’ Merchants’ Cotton Press Co. v. Insurance Co., 151 U.S. 368, 385 [14 S.Ct. 367, 373, 38 L.Ed. 195 (1894)].

Indianapolis v. Chase National Bank, 314 U.S. 63, 69-70, 62 S.Ct. 15, 16-17, 86 L.Ed. 47 (1941).

In considering whether diversity of citizenship exists with respect to the “principal purpose of the suit,” certain doctrines are well established. First, a plaintiff cannot defeat a defendant’s right of removal on the basis of diversity of citizenship by the “fraudulent joinder” of a non-diverse defendant against whom the plaintiff has no real cause of action. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921); Allied Programs Corp. v. Puritan Ins. Co., 592 F.Supp. 1274, 1276 (S.D.N.Y.1984).

The joinder of a resident defendant against whom no cause of action is stated is a patent sham, Parks v. New York Times Co., 5 Cir. [1962], 308 F.2d 474, and though a cause of action be stated, the joinder is similarly fraudulent if in fact no cause of action exists, Lobato v. Pay Less Drug Stores, Inc., 10 Cir. [1958], 261 F.2d 406.

Dodd v. Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir.1964); Roe v. General American Life Ins. Co., 712 F.2d 450, 452 (10th Cir.1983). With respect to this doctrine, the Sixth Circuit has stated:

*914 In fraudulent joinder cases the underlying reason for removal is that there is no factual basis upon which it can be claimed that the resident defendant is jointly liable or where there is such liability there is no purpose to prosecute the action against the resident defendant in good faith. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144. In such cases the assertion of the cause of action against the resident defendant is treated as a sham.

Brady v. Indemnity Ins. Co. of North America, 68 F.2d 302, 303 (6th Cir.1933). Other courts have held that the party opposing remand has the burden of establishing either that there is no possibility that the plaintiff can establish a valid cause of action under state law against the non-diverse defendant, or that there has been an outright fraud in the plaintiffs pleading of jurisdictional facts. E.g., B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A 1981).

In many cases, removability may be determined from the original pleadings, and normally an allegation of a cause of action against the resident defendant will be sufficient to prevent removal. But when a defendant alleges that there has been fraudulent joinder, the court “may pierce the pleadings, consider the entire record, and determine the basis of joinder by any means available.” Dodd v. Fawcett Publications, Inc., 329 F.2d at 85 (citations omitted).

Used in this sense, the term “fraudulent joinder” is a term of art and is not intended to impugn the integrity of a plaintiff or plaintiff’s counsel. Nobers v. Crucible, Inc., 602 F.Supp. 703, 706 (W.D.Pa.1985). Although the doctrine of fraudulent joinder applies to situations in which there has been actual fraud committed in the plaintiffs pleading of jurisdictional facts for the purpose of defeating federal court jurisdiction, the Court emphasizes that there is no allegation of any fraud and no evidence of any fraud on the part of plaintiff or plaintiffs counsel in this case. To the contrary, plaintiffs counsel are highly distinguished attorneys of great integrity who have sincerely and vigorously argued that both the Cincinnati Reds and Major League Baseball are properly joined as defendants and whose citizenship cannot be ignored under any applicable rule of law.

Second, it is also a long-established doctrine that a federal court, in its determination of whether there is diversity of citizenship between the parties, must disregard nominal or formal parties to the action and determine jurisdiction based only upon the citizenship of the real parties to the controversy. Navarro Savings Ass’n v. Lee, 446 U.S. 458, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980).

Early in its history, [the Supreme Court] established that the ‘citizens’ upon whose diversity a plaintiff grounds jurisdiction must be real and substantial parties to the controversy. McNutt v. Bland, 2 How. 9, 15 [11 L.Ed. 159] (1844); see Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 328-329 [14 L.Ed. 953] (1854); Coal Co. v. Blatchford, 11 Wall. 172, 177 [20 L.Ed. 179] (1871). Thus a federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy. E.g., McNutt v. Bland, supra [2 How], at 14; see 6 C. Wright & A. Miller, Federal Practice & Procedure § 1556, pp. 710-711 (1971).

Id. at 460-61, 100 S.Ct. at 1781-82; Salem Trust Co. v. Manufacturers’ Finance Co., 264 U.S. 182, 190, 44 S.Ct. 266, 267, 68 L.Ed. 628 (1924). A real party in interest defendant is one who, by the substantive law, has the duty sought to be enforced or enjoined. Sun Oil Co. of Pennsylvania v. Pennsylvania Dept. of Labor & Industry, 365 F.Supp. 1403, 1406 (E.D.Pa.1973). In contrast to a “real party in interest,” a formal or nominal party is one who, in a genuine legal sense, has no interest in the result of the suit, Grant County Deposit Bank v. McCampbell, 194 F.2d 469, 472 (6th Cir.1952); Bedell v. H.R.C. Ltd., 522 F.Supp. 732, 736 (E.D.Ky.1981), or no actual interest or control over the subject matter of the litigation. Stonybrook Tenants *915 Ass’n, Inc. v. Alpert, 194 F.Supp. 552, 556 (D.Conn.1961).

While these related governing principles of federal court jurisdiction are clear and not in dispute, the parties strongly disagree as to their application in the present case. But, as Justice Frankfurter stated in the Chase National Bank case:

As is true of many problems in the law, the answer is to be found not in legal learning but in the realities of the record.

Indianapolis v. Chase National Bank, 314 U.S. at 69, 62 S.Ct. at 16-17. The Court turns, then, to the realities of the record in this case to determine the real parties to this controversy.

1. Defendant Giamatti

It is apparent from the complaint that the actual controversy in this case is between Rose and Commissioner Giamatti. The complaint is replete with allegations of wrongdoing on the part of Giamatti. For example, Rose asserts that Giamatti and investigators hired by him attempted to bolster the credibility of witnesses against Rose, prejudged the truthfulness of certain testimony given as a part of the investigation, acted unreasonably in demanding information from Rose, improperly threatened him with refusing to cooperate in the investigation, requested that Rose step aside as the Reds’ Field Manager without revealing to him the evidence which had been compiled concerning his alleged gambling activities, and otherwise acted improperly in violation of Giamatti’s alleged duty to provide Rose with a fair and impartial hearing with respect to the allegations against him. The ultimate purpose of the action is to prevent Giamatti from conducting any hearing because of his alleged improper conduct and bias against Rose. The crux of the controversy is contained in K 61 of the complaint:

In light of Giamatti’s actual displayed bias and outrageous conduct in this cause, his service as an investigator, a prosecutor and a prospective judge, his written prejudgment on the case before even hearing from Pete Rose and all of the evidence to be offered, and his denial of the procedural rights guaranteed to Pete Rose under the Rules of Procedure and the various contracts herein involved, Pete Rose will suffer irreparable injury if Giamatti is allowed to conduct the hearing. To submit to such a fatally flawed process would guarantee that Pete Rose would not receive a fair hearing, and he would be irrevocably tainted by Giamatti’s continuing to pursue his various roles in this proceeding and his prejudging of the case.

The critical question now before the Court is whether, in this controversy between Rose and Giamatti, there is “the necessary collision of interests” between Rose on the one hand and the Cincinnati Reds and Major League Baseball on the other hand so that the citizenship of these defendants may not be disregarded by the Court. If the necessary collision of interests exists, then the action was improvidently removed and must be remanded to the state court. If, however, the Cincinnati Reds and Major League Baseball were fraudulently joined as parties or are only nominal parties in the controversy, then diversity of citizenship is not defeated and Rose’s motion to remand this case to the Court of Common Pleas of Hamilton County, Ohio must be denied.

2. The Cincinnati Reds

Just as it is clear that the crux of the present controversy is between Rose and Giamatti, it is equally clear that, in reality, there is no controversy between Rose and the Cincinnati Reds. The complaint explicitly asserts that Rose “alleges no wrongful conduct on the part of the Reds.” Complaint at ¶ 4. Despite this explicit assertion, Rose contends that “all defendants herein owe Pete Rose the contractual duty to ensure that the Commissioner adheres to the Major League Agreement and discharges his duties in accordance with the Rules of Procedure_” 8 Com *916 plaint at ¶ 57. In essence, Rose asserts that the Commissioner’s rules of procedure concerning fair disciplinary hearings are incorporated as a part of his employment contract with the Cincinnati Reds, and that any action by Commissioner Giamatti in violation of his own rules of procedure would constitute a breach of Rose’s contract with the Cincinnati Reds. It is Rose’s position that the Cincinnati Reds owes him a contractual duty to see that the procedural rules are not violated, and that if Giam-atti violates these rules by holding an unfair hearing and, as a result, sanctions Rose, the Reds will have failed in its duty and will have breached his contract. Rose’s claim against the Cincinnati Reds, involving no present wrongful conduct on the part of the Reds, is for “anticipatory breach” of his contract.

The Major League Agreement, which unquestionably is incorporated as a part of Rose’s contract with the Cincinnati Reds, creates the office of Commissioner of Baseball and vests extraordinary power in the Commissioner. The Commissioner has unlimited authority to investigate any act, transaction or practice that is even suspected to be “not in the best interests” of baseball. In connection with this authority, the Commissioner may (1) summon persons and order the production of documents, and, in case of refusal to appear or produce, impose penalties; (2) determine after investigation what preventative, remedial or punitive action is appropriate, and (3) take such action against the leagues, the clubs or individuals. Major League Agreement, Art. 1, Sec. 2. The Commissioner is given virtually unlimited authority to formulate his own rules of procedure for conducting those investigations, the only limitations being that whatever rules he adopts must recognize the right of any party in interest to appear before him and be heard, and the right of the presidents of the two major leagues to appear and be heard on any matter affecting the interests of the leagues. Id. at Sec. 2(e). These rules of procedure are not rules adopted by the members of Major League Baseball; they are rules promulgated solely by the Commissioner of Baseball.

In contrast to the Commissioner’s own rules of procedure, the members of Major League Baseball have formally adopted extensive rules governing relations between clubs and their employees, misconduct of players and other persons, and many other matters. These rules are known as the “Major League Rules.” 9 These detailed rules governing major league professional baseball have been accepted by the twenty-six major league professional baseball clubs and are recognized as binding upon them.

Rose’s contract with the Cincinnati Reds provides in relevant part:

The National League Constitution, Regulations and/or Rules and the Major League and Professional Baseball Agreements and Rules, and all amendments thereto hereafter adopted, are hereby made a part of this contract.

Notice of Removal, Exhibit 2, Exhibit Q to Complaint at 115(a) (emphasis added).

Considering the Major League Agreement, with its provisions vesting in the Commissioner the authority to promulgate his own procedural rules governing his investigation of matters not in the best interests of baseball, and its provisions for the adoption of Major League Rules binding upon every league, club, and player in major league professional baseball, it is apparent that “the Major League ... Rules” which are expressly incorporated into Rose’s contract with the Cincinnati Reds are the extensive rules of conduct formally adopted by the members of Major League Baseball and not the procedural rules independently promulgated by the Commissioner which govern only his own proceedings. Furthermore, and of greater importance, there is nothing in the Major League Agreement, the Major League Rules, or in Rose’s contract with the Cincinnati Reds which gives the Reds any right to prevent the Commissioner from holding a disciplinary hearing or to interfere with proceedings within the jurisdiction of the Commis *917 <