A Possible Legal Argument Against Service-Time Manipulation by Sheryl Ring March 2, 2018 Ronald Acuna is a very, very good prospect. As a 19-year-old last season, he played his way to Triple-A and recorded one of the top adjusted batting lines across the entire level. According to ZiPS, he currently projects as the fourth-best position player on the Atlanta Braves. By Steamer, he’s sixth best. Both systems regard him as the organization’s second-best outfielder. For all this, however, Ronald Acuna will probably not appear on the Braves’ Opening Day roster. If he doesn’t, it’s possible that Atlanta will provide a legitimate baseball reason. Given the scarcity of 20-year-olds in the majors, choosing not to roster one typically doesn’t require an elaborate explanation. There were no 20-year-old qualifiers last year, for example, or the year before that or the year before that. But Acuna is also pretty special and, as noted, already one of the best players on his own team. If Atlanta chooses to break camp without him, it’s likely due to another reason — namely, to manipulate his service time. Because 172 days represents one big-league season of service time, a team can leave a player in the minors until he’s capable of accruing only 170 days, thus buying the club an extra year of control. If they leave Acuna at Triple-A, the Braves will hardly be the first club to do so. The Cubs did it with Kris Bryant, the Yankees appear likely to do it with Gleyber Torres. None of this is new. What I’d like to consider here, though, is a legal argument that might compel clubs to include these players on their Opening Day rosters. A couple of years ago, Patrick Kessock wrote an excellent article for the Boston College Law Review in which he argued that service-time manipulation was probably a violation of the CBA. The basis of his argument was that, by keeping a player in the minor leagues for the purpose of gaining an extra year of control, the team was violating what is called the “implied covenant of good faith and fair dealing.” So: what is this covenant? And, more importantly, is Kessock right? The “implied covenant of good faith and fair dealing” is a legal doctrine governing contracts. In a case called United Steelworkers of America v. Warrior & Gulf Navigation Co., the United States Supreme Court held that a collective bargaining agreement is “more than a contract.” But we also know from a Tenth Circuit Court of Appeals case called United Steelworkers of America, etc. v. New Park Mining Co (yes, the Steelworkers have a lot of lawsuits) that “the covenant of good faith and fair dealings which must inhere in every collective bargaining contract if it is to serve its institutional purposes.” That’s just a fancy way of saying that the covenant of good faith and fair dealing is a part of CBAs, too. So having established that this doctrine applies, what does it mean? You’ll remember from a previous post that we talked about Restatements, books which explain the majority rules in certain areas of the law. If we look in Section 205 of the Restatement (Second) of Contracts, we find this: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” And each Restatement has what are called “comments,” which are really explanations and examples of what the rule means. The comments to Section 205 are pretty long, so I won’t reproduce them here, but they do provide a pretty useful definition, as follows: “Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving “bad faith” because they violate community standards of decency, fairness or reasonableness.” It’s the “justified expectations” language on which Kessock hangs his hat. Teams, after all, are supposed to compete for championships. Kessock argues that, therefore, “[t]he MLBPA can assert that its reasonable expectation is that MLB clubs will assign players to the major league roster once club executives believe that players have reached full minor league development and can help the team compete for a championship.” But that might not be not so clear-cut. After all, it’s also a justifiable expectation that teams are also supposed to try to win multiple championships. Therefore, gaining that extra year of control over a good player is reasonably geared more towards that goal. But I still think Kessock is on to something here, and there might be another way to argue this using the covenant of good faith and fair dealing. Remember that minor-league players aren’t members of the MLBPA until they get called up. And that means that, by keeping a player in the minor leagues, a team is deliberately postponing a player from becoming a member of the union for the club’s own benefit. And that (arguably) could be regarded as bad faith. It seems to me that a viable argument can be made that it is unfair to postpone a player’s entry into the union solely for a team’s pecuniary gain. Article II of the CBA states that “[t]he Clubs recognize the [MLBPA] as the sole and exclusive collective bargaining agent for all Major League Players, and individuals who may become Major League Players during the term of this Agreement, with regard to all terms and conditions of employment” (emphasis mine). I think the MLBPA could argue, based on Article II, that its justified expectations are that MLB won’t attempt to circumvent players’ pecuniary gain by keeping them out of the union, because future major leaguers were an anticipated part of the CBA. Now, there is an obvious counterargument: since future major leaguers were an anticipated part of the CBA, they should have reasonably expected MLB teams to do something which the CBA doesn’t expressly prohibit. And even if a player could make the argument work from a legal perspective, there are a whole host of practical problems to solve. After all, I’ve never seen a prospect without any flaws at all (especially pitchers), so proving a prospect is being kept in the minor leagues solely for service time reasons is a tall order. Even Ronald Acuna struck out in over 30% of his plate appearances in A-ball last year, providing a plausible path for the Braves to argue he needed more seasoning in the minors. Also, we’re talking here about the player filing a grievance, not a lawsuit. Grievances take a long time to resolve: Kris Bryant, who filed one in 2015 for service-time manipulation by the Cubs, was still waiting for a resolution two years later. But, with all that said, I do think that Kessock is right: there’s at least a plausible argument to be made that service-time manipulation violates the spirit of the CBA, if not its letter. And the spirit of the CBA is what the covenant of good faith and fair dealing is designed to protect.