A Possible Legal Argument Against Service-Time Manipulation
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.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.
I have very much enjoyed your contributions to the site. I hope many other readers appreciate your fresh approach and the addition of a legal perspective.
Indeed, it’s not something I necessarily thought I’d be interested in, but I’ve enjoyed these articles very much.
We’ve always had a legal writer on the site, but since Wendy Thurm departed in 2015 it was the Defense Against the Dark Arts of FanGraphs writer posts: everyone lasted perhaps a season or less before moving on. Hope that’s not the case this time!
Thank you for this!
Sheryl, these articles are a fantastic and interesting look at a different side of the game than is usually covered here. Great work!
Assuming a successful lawsuit, what kind of remediation would we be looking at? Some kind of labor-management committee to determine who needs to start the season in the bigs and who can be sent down to the minors?
yeah, that’s an issue here — very few cases are ronald acuna or kris bryant. you’re basically asking a judge to step into the role of front office evaluator, which they may be disinclined to do in all but the most egregious cases.
and as sheryl pointed out, it’s not 100% clear that this even IS an egregious case. FGDC has him as a bit short of a two-win full-time player right now. are we really going to claim it’s completely unreasonable to think a few more months in the minors would do him good? not just that we’d put him in the majors if it were up to us, but that it’s actually *bad faith* to claim to have a different opinion? ehhhhh
I would expect it would be case by case and the arbitrator could award the player earlier access to arbitration or free agency if the player won. A similar thing happened in football this year when AJ McCarron was made an unrestricted free agent based on a service time issue (where he would have been a restricted free agent otherwise). The facts are not similar, but the remedy is what I would expect you would see here: https://www.buffalorumblings.com/2018/2/15/17018322/aj-mccarron-wins-grievance-with-bengals-to-become-ufa
I don’t think an arbitrator could or would create some kind of forward-looking remedy that tries to prevent future cases
So basically, file a grievance, just like Bryant is doing now?
Yep. I’d expect something more holistic like you suggest (which would be a better long term solution, by the way) would probably have to be a result of a new CBA provision or a side agreement between MLBPA and MLB
Right. There is already a remedy for those rare, individual cases of “manipulation” of service time for no other plausible reason but team control.
The simplest solution is to base free agency on age as opposed to service time. Like, *every* player is a free agent following their age-27 season, whether they debuted as a 19-year old like Bryce Harper or a 24-year old like Aaron Judge.
Maguro, it wouldn’t be a lawsuit, it would be a grievance, and I would imagine that the range of possibilities would be various.
This strikes as more a reason argue something for the purpose of racking up legal fees rather than an actual justified reason to compel the Braves to break camp with Acuna on the roster.
Here’s why I feel that way:
1. Virtually every prospect not named Albert Pujols has something they need to work on before they can prove they are a viable contributor at the MLB level. (That’s why they are called “prospects”, right?) Sheryl briefly touched on this, but I think it’s a more critical factor than was given credit. A great example would be Victor Robles. One could argue that he’s more worthy of a 25-man spot since he has MLB experience and Acuna doesn’t. And there-in lies the rub: barring injury, it’s to Robles’ long-term benefit to play in AAA every day rather than sit on the bench in Washington since he arguably is not as ready for an everyday spot than Wash’s current healthy OF. So one argues that the team IS acting in the player’s long-term benefit by getting him necessary reps, at the expense of delayed start of service time.
2. The other possibly more pertinent argument is this: the Braves aren’t in position to win a championship this year. If Kessock argues that the player “helps the team compete for a championship”, well, Acuna is unlikely to single-handedly push the Braves to championship contention this year. So while he may have an argument, it seems like a very weak argument.
The teams current location on the competitive curve isn’t really relevant. The expectation remains the same, the team is expected to reasonably compete each year, otherwise explicit forfeit rules for rebuilding franchises would have been codified into the rulebook. The argument is that Acuña makes the Braves a better team and more capable of competing. Keeping Acuña in the minors for service time concerns still violates the good faith expectations of a team to reasonably compete regardless of the Braves likelihood of claiming a post-season spot.
Let’s accept your premise that teams must always have the 25 best players in the organization on the opening day roster to stay within the spirit of the CBA.
Who gets to decide who those 25 guys are, now that the decision is no longer solely with the club? I mean, who overrules the Braves when they say Acuna has some stuff to work on, we feel having Lane Adams start the year in LF gives us the best chance to win.
And you have just touched on why it is currently difficult, approaching impossible for a player to win such a grievance against his team. Absent a disgruntled employee releasing a “smoking gun” dossier where the front office evaluated a prospect and determined him to be a significant upgrade over their current Major League options but chose to hold him down for service time considerations, the Front Office will always be able to make some claim that they determined the player need to work on some aspect of his game.
The decision remains with the club, but they are obligated to make decisions in good faith. Using a pretext, which may have a semblance of credibility, is still using a pretext and in bad faith. You have to demonstrate the bad faith, which is admittedly likely difficult, but not impossible. Let’s say that there were email communications among the baseball ops folks in an organization lauding a player’s skills, how advanced he is, how he could help the team immediately, how they had an opening at his position, etc. But that player is held down until the day after the extra year accrues, and the team says, “Oh, we wanted him to work on his footwork on defense.” To me, there is a strong inference of bad faith, notwithstanding the proffer of a potentially credible explanation.
OK, but you didn’t answer the question. Who decides that the Braves are full of crap when they say having ______ start the year in LF instead of Acuna is a pure baseball decision?
If the answer is “file a grievance and let an arbitrator decide”, that’s exactly what Bryant is doing now. So what would this lawsuit approach that Ring is advocating actually change? That is what I’m trying to understand.
I’m actually advocating for filing a grievance, but using a different theory: that teams are keeping players out of the union for their own gain.
But that’s obviously not the reason why teams are “manipulating” service time, so that er, creative theory is going nowhere. Teams are constantly (every day of the season, and throughout expanded rosters and the playoffs) “keeping players out of the union” by not calling them up to the majors or declining to add them to 40-man rosters (for example, teams decline to call up players to manage roster size for Rule 5 and other purposes).
The theory adds nothing to the force of the argument on whether a team is keeping a player down solely for the purpose of gaining another year of team control or conversely, whether there is a developmental, or other roster-based basis to keep the player in the minors. And the MLBPA can already bring a grievance under the CBA to challenge a team’s actions in that regard.
Sheryl, interesting angle. Isn’t that the harder argument to make, though? Why is it the teams’ responsibility to manage a player’s entry into the MLBPA rather than the MLBPA itself to vote to expand membership?
Absent overwhelming evidence to the contrary, no one gets to tell the Braves they are full of crap. And that is the heart of my issue with the system as it is. There is no accountability for teams that choose to manipulate service time and violate good faith principles. It simply assumes the team is acting in good faith and places the full burden of proof on the player. That’s not really a fair or level playing field. That is why I would propose changing the service time rules so that Teams cannot hold down a prospect for 3 weeks to gain an extra year of control. As currently constructed, the system nearly demands to be abused.
When the player comes up a short time after the team control date has passed and immediately becomes one of the team’s best players, as universally expected, like Bryant, it’s strong circumstantial evidence of manipulation. Under some rules of law, the team would then have to demonstrate a genuine reason why Tommy LaStella or whoever started at third base while Bryant was playing seven games in the minors to work on something was reasonably a better choice at the start of the year, as well as give some explanation about what Bryant needed to work on and how he mastered that issue in those seven games. Then, if the club can show that, the player would have to prove that the club is basically lying, which he could do if he had something like emails or public statements.
Disagree, the team’s place on the competitive curve is at the heart of Kessock’s argument, as provided above. “Competing for a championship” and “being a better team and being competitive” as you suggest are very different.
A team can argue that they are “being competitive” by fielding a team that projects to win 82 games. Random variability inherent in baseball could swing that up to 85-87 wins and the team would be in the hunt for a Wild Card. At that point, the team is literally “competing for a championship”.
(BTW, my personal opinion is that Acuna should break camp in the majors and stay in MLB all year. It would be best for the game if that were to happen.)
I definitely think there would be difficulty arguing that there weren’t reasons to keep someone down, given that everyone has flaws. But if Acuna is better than at least one of the outfielders they roster (I don’t know the Braves well enough to really know), then flawed or not, he would still be the best option for the major league team.
The issue with claiming a player”still has things to work on” falls apart when they’re called up a day or two after the cutoff. If a player is in the minor for another 2-3 months after the cutoff, fine. That’s enough time to work on things. But if a player is only down for 2-3 days after the cutoff, what changed in those few days?
Baller,
“The issue with claiming a player”still has things to work on” falls apart when they’re called up a day or two after the cutoff. If a player is in the minor for another 2-3 months after the cutoff, fine. That’s enough time to work on things. But if a player is only down for 2-3 days after the cutoff, what changed in those few days?”
I agree with you. And who then determines if the necessary changes have been made? What is an “acceptable” period of time to determine if those adjustments have been made?
That’d be determined by the team, and it would vary from player to player. (If there was a clear-cut rule, we wouldn’t be having this discussion – we’d just point to the clear-cut rule.) But if it doesn’t pass the smell test then there’s grounds for filing a grievance.
IMO this is a key point.
Excellent article IMO- the promotions immediately after super 2 deadlines, coupled with past statements offering supposed performance related reasons, does probably constitute bad faith. Damages are fairly clear also.
It may be that, if the suit prevailed, teams that made excessive ‘not ready’ statements would be liable to damages. Saying a player is not ready, when internal records show that the player is, does disparage the player’s ability- even if the true purpose is just to manipulate playing time and not intended to be a knock on the players’ reputation. This does seem to be the type of bad faith that is actionable- intentional misinformation that works a detriment to the player.
Unfortunately, teams might be on very safe ground to simply admit the service time manipulation- which might not in itself be bad faith. Arguably teams simply haven’t done this because of PR, but it doesn’t seem like teams have any obligation to bring a player to the majors under any circumstances. IMO teams are free to leave a player in the minors, for as long as they want, for any reason apart from discrimination or retaliation. A team would likely be on very strong grounds to say, ‘a player’s best 7 years are 22-28, and those are the years we want from all players, even if they appear likely to be the best players in our organization at age 20.” There simply is no requirement for teams to win now as opposed to later, which makes sense given that winning/losing is zero sum and therefore it’s impossible that all teams can put forward a reasonably likely plan to win at the same time.
Interesting idea about the detriment being union exclusion, I think that is a legit detriment to the player notwithstanding that the union itself has also excluded the minor leaguers by choice.
Clubs that lie and publish false information, against their own internal assessment, that a player is not ready for MLB, just to manipulate service time, and acting in bad faith in such a way that hurts the player- the predictable call up ‘2 days after’ is likely solid evidence of bad faith.
You contradict yourself.
In point 1, you argue that if a prospect could be a starter, he should be in the majors. In point 2, you argue that the same prospect likely shouldn’t be in the majors if they aren’t playoff contenders. Which is it?
Beyond this, development at the major league level is superior, given it isn’t detrimental to psyche, to development at the minor league level. Acuna in the majors helps the Braves win a championship because, so long as he doesn’t go full Broxton on us, he will develop against competition he is expected to play against for a decade+.
On top of that, who’s to say the Braves aren’t in a position to win a championship? Steamer? Zips? PECOTA? Just because one view, albeit popular, suggests they aren’t ready doesn’t mean they aren’t. That’s a subjective view that would be thrown in the trash in any legal discussions.
Tb.25, how is it a contradiction? The two teams are in wildly differing places in terms of competitiveness. One is WS-caliber that has a full outfield of at veterans that at the very least capable, league average players, while the other is not WS-caliber and possibly has an opening in the starting OF.
In the former situation, the prospect would likely sit, thus benefitting from regular playing time in the minors, whereas the latter would be benefit from learning at the MLB level free from the pressures of a WS run. The players could start for either team, but only one has a possible job opening. I don’t see any contradiction.
As for which teams are positioned to be competitive, I suppose we can say that every team has the same record today and has the same chance to win, but to suggest that the Marlins are on par today with the Yankees, Dodgers, Indians, Astros and Nationals, surely you agree that is being disingenuous. Which means you surely agree that the Braves are unlikely to compete for a WS as those other teams mentioned.
For any good player, teams are far better off getting the extra year in ages 26-27-28 than they are getting that month and a half earlier debut in a rookie year- it’s roughly a $25m+ benefit. Manipulating service time for a handful of prospects can be worth hundreds of millions.
It’s a pretty legit bad faith issue IMO- but there is a certain unfortunate reality to it that teams are far better off manipulating service time than not. A team that trades 4 years of its best players at ages 26, 27 & 28 for 4 months of those same players in their rookie years- is a team that is acting anti-competitively.
The suppose benefits of immediately promoting a player when ready to start- such as the benefit of developing the majors, supposed impact to the psyche etc., is marginal and dubious.
Either way, great article and comments, this is much more progressive and pro-baseball idea than the ‘every team spend in FA’ series imo, much appreciated.
I’m really enjoying these posts from Sheryl detailing legal perspectives involving teams and/or players. At some point, I bet we’ll see a real game-changer. Hopefully the players’ union is taking notes and does a better job negotiating the next CBA.
The problem is that the MLBPA and other entities representing the players have never challenged this behavior. While allowing MLB clubs to manipulate service time virtually unopposed may not quite have created a legally explicit precedent, they have more then established an implicit one. However, it would appear that as the percentage of players who are directly affected by this style of service time manipulation tends to be less common, I don’t foresee anyone making significant changes to the rules any time soon.
Well, the MLBPA did challenge the behavior on behalf of Bryant, and the outcome of his grievance is still pending.
I agree that there won’t be significant (or any, really) changes to the rules. It’s basically a non-issue except in very rare circumstances. But in those rare circumstances, the MLBPA can bring a grievance on behalf of the player (like it did with Bryant), and if justified, the arbitrator (or panel) can craft a suitable remedy (like reducing the team’s control of the player by a single year).
What is the point of a grievance system if they aren’t going to bother resolving it before the Player in question is eligible for arbitration?
The issue is the extra year of team control at the end (i.e., do the Cubs control Bryant through 2020 or 2021), not arbitration eligibility. Bryant is arbitration-eligible for the first time next year regardless of how long the Cubs keep control of him.
Kris Bryant was arbitration eligible /this/ year.
It’s a tricky issue that could be loaded with unintensional consequences.
Consider if we take a clumsy approach and change the rules: for now on, teams get 6 years of control, but the relevant time computation is based off the actual calendar- if you debut May 4th, 2018, you hit FA May 4th 2024. Or to make it simpler, each season you appear in the majors counts as 1 season. These methods would manipulation but would likely price a lot of players out of their market early in their careers, and might have a large chilling effect on promotions generally.
If you had the ‘calendar year’ approach, then – apart from players becoming FAs mid-seasons- the problem would be that alot of fringe players who have markets as up-and-down fill-ins would no longer get promoted, or would become too expensive for their niche within a year or two. Players might get more chances and more 40-man roster shots if teams are free to take a gamble on a player without hitting a never-stopping price escalator.
If you had the ‘each season counts’ approach- teams would generally only promote players at the beginning of the season, which may be inefficient and leave players in the minors for longer than the current system.
It’s a hard issue but the current system includes a lot of misinformation, which does seem to be bad faith. If you have a ‘every day counts’ system, then teams could really ruin a players’ career by calling him up too early (or too late), and both club’s and players would have some funny incentives that don’t line up perfectly with efficiency. Would players hold out and refuse call ups- in fear that if called up at 20, they might get cut during arbitration years if not yet developed? If you have a ‘only time on the roster counts’ system where FA only accrues during the offseason, then clubs will always have an incentive to make sure that a good player’s debut season has at least 1 fewer days on the roster than a full year of service time. There seems no way around the pitfalls with these alternative choices.
Still, teams don’t need to lie about it in a way that speaks down to a players’ present ability, just for PR or whatever other reasons (CBA posturing, etc).
Keep the system as it is now, but allow players to buy extra service-time days at the prorated price of their fifth-year salary.
I think it would be a hard sell to just about any judge. For one thing, the section immediately following ARTICLE XXI—Credited Major League Service in the CBA is ARTICLE XXII—Management Rights, which provides:
“Nothing in this Agreement shall be construed to restrict the rights of
the Clubs to manage and direct their operations in any manner whatsoever
except as specifically limited by the terms of this Agreement.”
For another, there would be spirited debate about the “justified expectations.” Sure, MLBPA may have a justified expectation that teams want to compete for championships. But how the team attempts to achieve that goal is another matter – why would there be only one route, that includes calling up a MiLB player based on modeled projections of performance, etc.
Moreover, would MLBPA really be able to say that it does not have a justified expectation that teams are also operating to turn a profit? Indeed, reading the CBA in pari materia, wouldn’t the MLBPA’s express interest in the sharing of profit – as outlined in the revenue sharing section – indicate an understanding and acquiescence in teams’ intended purpose of making profit?
Interesting, to be sure, but I’m thinking the players’ best opportunity is still to clarify in the next CBA. It becomes incumbent on guys who were affected by the manipulation, like Bryant, to push the issue. For that matter, it’d be nice if the players did way more to protect the rights of MiLB players in general.
To expand on this a bit more: Kessock’s argument, that you quote, is “[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.”
Assuming that is a fair reading, the last part of that sentence is “and can help the team compete for a championship.” Under no realistic view can the Braves be said to be competing for a championship in 2018, with or without Acuna. So even if he has “reached full minor league development,” wouldn’t the team still be operating in good faith if they did not believe he could help them compete for a championship in 2018? Otherwise, the expectation is simply that “MLB clubs will assign players to the major league roster once club executives believe that players have reached full minor league development.” Without the latter part of the sentence, it devolves into some sort of expected altruism.
It is almost certainly not a reasonable expectation of MLBPA that MLB teams are designed to operate mainly out of concern for the player, his development, and earning potential.
As long as Acuna would move the needle, he would be helping them compete for a championship. It doesn’t matter how much he moves the needle, or where it was moved to or from – if he helps, he helps.
Also, the fact that the Braves field a team is evidence that they are trying to compete for a championship. If they’re not fielding a team to play baseball and win those baseball games, why are they fielding a team? Why not just forfeit?
Yep
[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.”
IMO that is a clearly losing argument with no chance at traction. Players continue to develop until 27 or so, and there is no evidence whatsoever that, once a good 24 year is ready for the bigs, that they somehow cannot develop further at AAA, in Korea, or wherever else. There is no such thing as ‘full minor league development’ except arguably when a player is post-peak.
There is no reasonable expectation that clubs will put all MLB-ready players on their roster- as most clubs only have ~15 regular roles. No one is doubting that clubs can keep a 2.0 WAR 21 year old at AAA if he wouldn’t start in the majors because he is blocked from starting by a similar 2.1 WAR player.
Further, the concept of ‘help…compete for championship’ is far too vague to act as some obligatory threshold. Teams around .500 have made the playoffs with some regularity, and pretty much all teams project within 2 SD of a .500 record. That means, essentially, all clubs would be obliged to have their top 40 players on the 40 man roster at all times, top 25 on top 25, etc.
I think the low hanging fruit here is that clubs are telling lies about players. If a club says ‘we think Jones still needs to work on pitch recognition,’ yet their scouting and data analysis departments both have written criteria for assessing pitch recognition and the player (1) shows good pitch recognition relative to teammates at his position by internal assessment, and (2) does not notable improve from the time of the statement through the time of promotion, then I think that might be a prima facie showing would shift the burden of proof onto the club to say, ‘ok it looks like you lied, show us what improvements you feel the player made on pitch recognition that prompted the promotion.’ Especially with players promoted right after the super2 deadline, I think clubs may be liable for the misinformation.
Ultimately, some players are likely due damages, but going forward it seems the best anyone could hold teams to is simply being honest about service time manipulation (which hopefully would help the union).
Thank you for the article. I have been dismayed by how flippantly fans talk about keeping players down to “buy” another year of control. I am leery of an argument tied to a player’s ability to help a team compete for a championship, rather than a more basic argument centered around teams being obligated to add players once they have, in good faith, determined that the player is able to compete at the MLB level. But I write regarding the Kris Bryant fiasco and its implications. I consider K. Bryant’s situation to be the most obvious and egregious example (at least recently) of service time manipulation (Bryant was the 2nd overall draft pick; demolished every level of MiLB; was 23 yrs old with no material flaws in his game; and was called up almost immediately after the extra year of control was obtained; and, incidentally, the Cubs were in fact competing for a championship that year). But, the MLBPA negotiated and executed a new CBA since then, and that CBA (as far as I know) did not alter service time rules or otherwise address service time manipulation. Does this undermine potential future arguments regarding service time manipulation? Although we do not know how negotiations went (and, for example, whether the MLBPA raised this issue and then gave it up for concessions elsewhere), if the MLPBA did not draw a line in the sand after K. Bryant, how can folks successfully argue against future service time manipulation by teams?
The test for whether a team is “obligated” to add a player to an MLB roster cannot be whether in good faith the team has determined that the player is able to compete at the MLB level. AAA (and AA, for that matter) is full of players that teams in “good faith” have determined are “able to compete” at the MLB level.
Yes, I think that is right; that formulation is incomplete. You could have an MLB-ready player, but have 25 other better players ahead of him. I think the test would be that the player in question is MLB-ready AND among the best ___ players within the organization at a given position. So for an OF, if you have an MLB-ready players who is among the best 2 OFs in the organization, the team should (or, in my view, is obligated to) call that player up.
I’m not sure how much I find this thinking to hold up…
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.
There’s nothing stopping the player from being on the team that additional year. The difference is the no-bid cost of the last year of arbitration vs. the cost of a one year contract, with 29 other bidders. And yes, that difference would come out to be a whole lot of money. But there’s nothing preventing it from happening.
If the implication is that the CBA covers teams to be able to pay players as little as possible because it will be “for the good of winning multiple championships” – and you assume that every team wants to win multiple championships – that seems like a hop, skip & jump from a coordinated wage suppression claim.
Found the 2nd/updated link on Kris Bryant’s grievance very interesting. (BTW, that link is almost a year old – a quick search shows that apparently the grievance is still not settled).
The link posits that perhaps Bryant hasn’t pushed forward with it and is using it as leverage. It’s worth noting that Bryant and the Cubs just agreed on a $10.85M deal which is a record for a 1st year arbitration eligible player.
MLBPA has put up with a lot of “violations”. They have done so primarily because at the end of the day, even with the service time manipulation they knew FA were going to get paid.
Thats no longer the case as teams use age as an excuse to not pay them. MLBPA has no choice but to go to war
The solution to this is rsther simple though. All players become FA after their age 28 season regardless of service (earlier FA still possible with 6 years service time). Maybe in return for that MLBPA agrees that contracts become non guaranteed after a players age 34 season (10% buyout)
Doesn’t the antitrust exemption allow MLB and its teams a way around this. Or does that antitrust exemption only apply to the product they’re selling and not to the factor markets as it relates to players? It seems that if it applies also to labor markets, MLB is in the clear here as long as they’re allowed this antitrust exemption.
This is an issue of collective bargaining, not antitrust.
Oddly enough, these players (Bryant, Acuna, amongst others) are either called up or will be called up far before their MLB team has exhausted their MiLB service time and options.
I really appreciate this. As someone who, for a long time now, has resented FanGraphs for consistently being way more team owner friendly than anyone but other team owners should be (I get it, that’s where the obvious and easiest mony is) it’s nice to see the fairly recent attempts to go the other way. Wouldn’t mind $/WAR (which has probably come down since it became a topic thanks to getting lowballed from the start) getting sent back to the garbage dump in hell it was found in.
The golden rule should be to never side with management. The long term reward for doing so is that you get to slightly delay when they bend you over. Well a better paycheck too…but still!
Yes, today is pretty boring so far.
Fangraphs has never been pro-owner. It used to be pro-smart front office (which used to be the same as pro small market clubs, as they were at first the only smart front offices) and still kind of is but, with it’s ESPN content partnership, has pivoted a bit towards bigger money talking points.
The ‘recent attempts’ you reference do the opposite of what you suppose- they pivot away from promoting small club/smart club interests and towards big money interests.
Currently the ESPN talking points on fangraphs promoting things like a salary floors, running out Tony Clark, and the need for everyone to spend big in FA are actually pro rich club owners: as those points are the main agenda of LAD, NYY, CHC, BOS, LAA, etc.
I share your sentiment on backing the little guys – as this article is genuinely pro labor- but most of the fake pro-labor talking points recently on fangraphs are the same corporate PR memes that ESPN are running for the big money interests.
I thought I might clear some things up because I see you commenting in a lot of threads about this. You appear to be misinformed about our relationship with ESPN.
We do have a content partnership with ESPN. Once a week, one of our writers works with ESPN editors to provide content to ESPN Insider. The content that appears on ESPN does not appear on FanGraphs. We used to cross-post the content provided to ESPN on FanGraphs+. We have not cross-posted content from ESPN since 2015.
Our content agreement with ESPN has been in place since 2010.
ESPN has never had any editorial input in any articles that are written for FanGraphs.
Interesting argument. You would need a sympathetic forum to make it work, but it would only have to work once to give teams at least some concern about manipulation in the future. I think the situation would better be addressed in the CBA, but given the fact that’s going to wait, perhaps someone with a strong case could bring it.
Anyway, a different perspective is welcome. Service time manipulation is so overt in some cases that it should be challenged.
Ooooof. I would not want to be the attorney making that bad-faith argument. I think “plausible” is a bit too generous…
Also, LOL at Gleyber Torres knocking down the door. Bryant had a like a full years’ worth of AA and AAA PAs more than Torres. There’s a possibility, though remote, that Torres doesn’t get called up until September if he underwhelms.
I disagree that it’s a hard argument.
A burden-shifting showing could be pretty simple:
(1) Team A says Player X will be kept in AAA for a few months to improve his change up;
(2) 4 days after the super two deadline passes, player X is promoted
(3) Player X’s changeup did not improve between time of statement and time of promotion.
That might be enough to make a showing that the club’s conduct was in bad faith. This may shift the burden to the club forcing them to prove that the changeup story was honest.
The bad faith component is really in the false reason given for the service time manipulation- not so much the manipulation. Clubs have really pushed the envelope with obvious lies about these decisions, and that is bad faith. Waiting until a player can only get 171 days of service time before his debut is not bad faith in and of itself- but lying about why that is done is, especially when those lies speak down the present abilities of a player.
This is true in any work context. Passing a better employee over in order to promote a lesser employee is (so long as not discriminatory or retaliatory) generally not bad faith conduct: but lying about the reason for the decision and and fabricating a flimsy critique of the better employee certainly is.
If clubs are forced to be honest about service time decisions, the CBA process can more appropriately and directly address the issue in negotiations.
Wasn’t arguing for a per se interpretation.
Courts generally are loathe to substitute their own judgment for that of a sophisticated party. I almost view this as the business judgment rule in corporate law – to show that a director or officer of a company breached their fiduciary duty, you would have to demonstrate (absent self-interest or lack of independence) that their decision was so far outside the realm of plausible business decision that no reasonable person could think the decision a proper exercise of judgment. The reason I think this comparison is apt is because a team knows best how to facilitate a player’s development, and how that player would contribute to the big league roster. The CBA acknowledges as much.
The problem with your burden-shifting is that it assumes that the team has made a falsifiable public commitment in explaining why the player isn’t on the roster. Even in Bryant’s case–which gave rise to the underlying L. Rev. note–there were reasons why Bryant could have plausibly been kept in AAA–he was still striking out more than a quarter of the time, it wasn’t clear that the competitive window was open yet, etc. If the club never said that it was to work on his walk rate, and just sent him back, then how would you make a bad faith argument without some smoking gun? A fortiori for Acuna, who could certainly plausibly be said to benefit from not being rushed / seeing more than 100 games in the high minors.
If you just walk into Court and say “Kris Bryant is really good, he should’ve been up from the get go, etc.”, I’d be worried about facing sanctions. You’re accusing the other party of bad faith based on your own self-interested perception of the parties’ interests? Yikes.
Great article but with respect to “expected members of the Union” could the counter argument simply be that automatically saying Player X (in this case Acuna) would make the MLB roster much less stick in the majors is fairly presumptuous. They would likely argue that “expected members” should be from the average age a player becomes a covered member of the Union then working from the players age v. length of CBA?
Hopefully I explained my thought correctly.
Aren’t players eligible to join the MLBPA if they’re on the 40 man roster but optioned to the minors? My understanding is that they are, such as per this FAQ at the MLBPA website – http://www.nmnathletics.com/ViewArticle.dbml?&DB_OEM_ID=34000&ATCLID=211044889#membership
That seems like a big problem for Ring’s legal argument, though not for Kessock’s argument.
Right.
And moreover, the problem with the legal argument is that it’s superfluous. The MLBPA can already challenge clubs through the grievance process for cases of blatant service time manipulation. It’s not like the MLBPA needs to come up with a creative legal argument to sustain a cause of action against this practice in federal court.
This is a good example of Betteridge’s law of (sub)headlines.
Well written piece and good insights. keep it up.
This piece implies that the narrow legal issue of denying prospects a place in the union is cured simply by adding them to the 40-man roster — which, in some cases, may already have been done. (It’s not clear that the author is aware that a player on the 40-man roster is already a MLBPA member, even at zero days of service time.)
In any case, surely a team would do that if that’s all it took to avoid the legal issue. The cost would be one 40-man roster space of flexibility for a few months, which isn’t nothing, but it’s also not substantial. Surely no team is worried about exhausting options on a Kris Bryant. On the other hand, is any court really going to rule that an issue so easily cured proves that there’s a problem in the first place?
Who knows, maybe September callups for elite prospects will make a comeback.
So if a player lies about his age or takes peds he breaks good faith and clubs can void his contract? Good faith would be a double edged sword.
Since we already have arbitration panels, I think a service time arbitrator would be an interesting addition. Assuming service time manipulation is a large enough problem to warrant change, giving a player the option to petition an arbitrator to determine MLB worthiness could make players happier. It would merit requirements that a player would meet such, just spit-balling, say 2 full years in the minors with at least 100 games played at Double or Triple A. In this hypothetical, Acuna would be eligible to petition for MLB status with the arbitrator forced to rule before the conclusion of Spring Training. It would probably be a system that would favor clubs so that really only the best and brightest prospects would likely prevail. Determining the rewards would be further complicated since clubs would not be comfortable with a player being forced onto their 25 man roster. Simply adding the player to the 40 probably wouldn’t be enough of an incentive for the players either. Forcing the player’s MLB service time to start would be interesting, and force clubs to put-up or shut-up in regards to minor league seasoning, though I suspect most would just graduate the prospect. Perhaps simply guaranteeing Super Two status would be enough of a reward with a guarantee of having their service time begin as late as the start of next year.
As a fan, I want to see the best players playing, but I also don’t want to see clubs forced to add players to their roster against their will. Personally, I’m not sure any change is truly needed. Perhaps an either/or qualifier attached to free agency would help further such as 6 years of service time or 4 years of service plus completion of an age 28 season for players drafted out of high school or signing internationally, and age 29 for players drafted our of college. It would give teams incentive to promote players just a little faster without discouraging them from drafting college prospects. There’s obviously pros and cons to any change, but it’s fun to speculate.
Good article.
> proving a prospect is being kept in the minor leagues solely for service time reasons is a tall order
Not if you file the grievance after the player has been called up and subsequently proves his worth — a worth in line with his pre-season projection.
I would be interested to know how restraint of trade could be applied to cases like Bryant and Acuna. If a team prevents a capable player from joining their MLB club AND also from joining other MLB clubs…that sounds like a legal problem.
Why don’t the Braves sign him to a contract that pays arb awards as a team option for each of years 3, 4, 5, 6 and 7 and a near minimum salary the first two years, plus a token signing bonus? In other words, pay him a small bonus for accepting a contract offering the same pay scale he would get if he were in AAA for two weeks.
Would such a contract offer, if it were rejected, be a “smoking gun” for a service time manipulation grievance?
Sheryl Ring is awesome, despite being a diehard NYY fan.