Challenging Kris Bryant’s Demotion by Nathaniel Grow April 1, 2015 Kris Bryant has been the talk of the baseball world this spring. Following Monday’s news that the Cubs had officially reassigned Bryant to the team’s minor league camp, speculation shifted from focusing on whether Bryant would make the Cubs’ opening day roster to whether Bryant or the Major League Baseball Players Association will challenge the demotion. For its part, the MLBPA helped fuel this speculation in an official statement released on Monday following Bryant’s demotion: Today is a bad day for baseball. We all know that if @KrisBryant_23 were a combination of the greatest Players to play our great game,(1/3) — MLBPA (@MLB_PLAYERS) March 30, 2015 and perhaps he will be before it’s all said and done, the @Cubs still would have made the decision they made today. (2/3) — MLBPA (@MLB_PLAYERS) March 30, 2015 This decision, and other similar decisions made by clubs will be addressed in litigation, bargaining or both. (End) — MLBPA (@MLB_PLAYERS) March 30, 2015 Although the MLBPA’s statement spoke of possible litigation, the first course of action that either the union or Bryant would take – should they decide to challenge the demotion – would almost certainly be to file a grievance against the Cubs under the terms of MLB’s collective bargaining agreement. Under Article XI of the CBA, with a few exceptions not applicable here, any dispute between the union and league – or a player and his club – must be resolved through grievance-based arbitration. The basic procedure is as follows: Within 45 days of the offending action (Bryant’s demotion, in this case), the player or union must send a written protest to the club. The team then has 10 days to review the complaint and notify the player of what, if anything, it will do to resolve the issue. If the player is not satisfied with his team’s response, he can then file an appeal to Major League Baseball’s Labor Relations Department (“LRD”) within 15 days of receiving the final notification from his team. The LRD then has 35 days to confer with union representatives in an attempt to settle the case. Assuming the case can’t be resolved at this stage, the player (or union) has 15 days to request that a neutral arbitrator decide the matter. That arbitration will then be scheduled sometime within the next year. A couple of takeaways can be gleaned from all of this. First, to the extent the union or Bryant do decide to take action, it will initially be through the grievance-based arbitration process, not litigation in a court of law. And second, this process will take some time. Importantly, then, this timetable means that if a grievance is filed over Bryant’s demotion, its goal will not be to force the Cubs to place Bryant on its opening day roster, as he will almost certainly have been promoted to the major leagues by the time any arbitration decision is issued. Instead, the grievance will ask an arbitrator to award Bryant any MLB service time lost due to the demotion, allowing Bryant to become a free agent after the 2020 season – as would have been the case had Bryant started the year in the major leagues – rather than in 2021. So what are the odds that an arbitrator would actually award Bryant his lost service time? The CBA is silent as to whether a team can demote a player to the minors due to service time considerations. In lieu of a specific rule to the contrary, many have assumed that the Cubs are thus acting fully within their rights, and that the union would have no chance of winning a grievance over Bryant’s demotion. But as Jason Wojciechowski has pointed out, just because something is not specifically prohibited in the CBA does not necessarily mean that it is permissible. In prior grievances under MLB’s CBA, arbitrators have generally ruled that teams must act in “good faith” when deciding whether to send a player to the minors. And while arbitrators will usually defer to a team’s decision to demote a player based on his perceived “skill or ability,” if a team is blatantly demoting an otherwise worthy player simply for contractual considerations alone then an arbitrator could decide that the decision was made in bad faith, and thus violated the CBA. This explains why teams never openly admit that they are demoting a top prospect to the minors for a few weeks due to service time issues. Even though there may not be any clear language in the CBA to the contrary, teams know they cannot simply demote a player for any reason at all. Instead, the clubs always say that the decision was made for baseball reasons, invariably citing the prospect’s need for further development. Along these lines, the Cubs have said all of the right things this spring about Bryant’s possible demotion. Theo Epstein has repeatedly insisted that Bryant’s status would be decided based on baseball, not business, reasons, while also noting that a top prospect had never made his team’s opening day roster in his nearly 13 years of running the Red Sox and Cubs. Indeed, for as great a prospect as Bryant is, questions do remain regarding both his defense and his ability to make contact at the plate. So even though we all know that service time concerns are the primary motivating factor behind the Cubs’ decision to demote Bryant, the team can credibly argue that the decision to send him to the minors was intended to allow him to further refine his skills. If the MLBPA or Bryant were to file a grievance, then, they would have to persuade an arbitrator that these alleged baseball-related concerns were a sham, and that the team’s decision to demote Bryant was really made in bad faith solely due to business considerations. This is obviously a difficult argument to win. But it’s not utterly inconceivable that an arbitrator would agree considering both Bryant’s track record and his complete demolition of the Cactus League this spring. Ultimately, though, Bryant or the MLBPA would be a decided underdog in any grievance filed against the Cubs. All of that having been said, there is an additional potential wrinkle in Bryant’s case. As explained above, under the CBA a neutral arbitrator will usually decide any grievance filed by a player or the union. But the CBA only applies to members of the MLBPA. Because Bryant is not yet on the Cubs’ 40-man roster, he is not technically an MLBPA member. So there is some question about whether Bryant’s hypothetical grievance would be subject to the normal procedure specified in the CBA. The MLBPA would likely argue that even though Bryant is not technically a member of the union, it nevertheless has the legal authority to represent him since he is a prospective future union member. This is why the MLBPA was – rightly or wrongly – able to negotiate away the rights of future draftees by agreeing to draft bonus pools in the last CBA, for instance. The MLBPA would likely also argue that because Bryant’s case implicates the CBA, the union (or Bryant) should have the right to pursue the grievance through the traditional procedure. Conversely, the Cubs could argue that because Bryant is not a union member, his case must be decided under the separate dispute resolution procedure set forth in Bryant’s Uniform Minor League Player Contract. That agreement specifies that any dispute between a player and his club will be resolved by the commissioner – rather than a neutral arbitrator – and that the commissioner’s decision on the matter will be final, with no opportunity for the player to appeal to a court of law. Moreover, the minor league contract also specifies that the player’s major league team has the right to “freely direct him to perform services for any Major League or Minor League Club.” Unlike the CBA, then, Bryant’s minor league contract – and in particular its use of the term “freely” – arguably gives the Cubs the right to reassign him to the minor leagues for any reason at all. So the Cubs could not only argue that Bryant’s grievance must be resolved by Commissioner Manfred – who is already on record as supporting the team on the matter – but also that the dispute must be decided under the more favorable language in the minor league player contract. If successful, this would almost certainly doom Bryant’s appeal. If the Cubs were to make this argument, though, the MLBPA would surely object. This dispute over the proper procedure for resolving Bryant’s case could then, in turn, form the basis of a separate grievance between the union and team. That fight would also likely require neutral arbitration to resolve, further delaying the resolution of Bryant’s grievance. Given all this, it is fair to ask why the MLBPA would ever consider pursuing a case on Bryant’s behalf. In fact, considering that any such grievance would have slim odds of success, it is entirely possible – and perhaps even likely – that the union will decide not to formally contest the matter. This would be consistent with how the MLBPA has responded to similar demotions in the past. For instance, even though the Astros were arguably more clearly acting in bad faith last spring by demoting George Springer after he had reportedly turned down a seven-year contract – an agreement that would have rendered any service time issues moot – the MLBPA never formally challenged the decision. Moreover, filing a grievance over Bryant’s demotion would put the MLBPA in the rather awkward position of contesting the decision to send a non-union member to the minors, when Bryant’s inclusion on the Cubs’ opening day roster would have resulted in a current union member being granted his release. So it’s quite possible that Monday’s statement will be the last we hear from the MLBPA on the matter (at least, perhaps, until collective bargaining talks begin in 2016). In fact, the union’s decision to release a statement at all on the matter is somewhat unusual, as the MLBPA typically does not publicly comment on potential action it may take on behalf of a player. (No such statement was released last year regarding the George Springer controversy, for example, nor has the MLBPA ever publicly acknowledged filing a grievance against Houston over its treatment of 2014 draft pick Jacob Nix.) This suggests that the MLBPA may have felt compelled to respond to Bryant’s demotion in some form, while not actually intending to formally pursue the matter. But what if the union does actually decide to challenge Bryant’s demotion? Even though the MLBPA would likely realize that its odds of winning the case are relatively slim, there are nevertheless several reasons why it could still move forward with a grievance anyway. For starters, by challenging Bryant’s demotion, the union would not only be able to request documents related to the Cubs’ decision-making process – a paper trail that could theoretically reveal a bad faith motive for the decision – but would also potentially be able to force several of the Cubs’ high-level executives (including Theo Epstein and Jed Hoyer) to appear for questioning at the arbitration hearing. Taken together, this might make the process uncomfortable enough for the Cubs that it gives other teams some pause when facing a similar decision in the future. At a minimum, an unsuccessful grievance would at least force the Cubs to incur some legal fees, a prospect that would make it incrementally more expensive for a team to similarly demote a top prospect in the future. It’s also possible, though, that the union could strategically decide to file a grievance in Bryant’s case as a negotiating ploy in anticipation of the 2016 collective bargaining talks. By taking a strong stand on Bryant’s demotion, the MLBPA would make it appear as if service time manipulation is a top priority for the union heading into 2016. The union would then be in a position to trade-off an apparent concession on the service time issue in exchange for a concession from MLB on an issue of greater importance to the union membership. This wouldn’t be unprecedented. Many believe that the NFL, for example, threatened to expand its regular season to 18 games in 2011 simply to gain other, more valuable concessions from the union in exchange for the league ultimately agreeing to keep the schedule at 16 games. Of course, MLB is represented by some pretty shrewd negotiators itself, so it is probably unlikely that the league would fall for such a ploy. But the union could reasonably conclude that the potential benefits of filing a grievance over Kris Bryant’s demotion outweigh the relatively minimal cost and slim odds of success. All in all, then, it is not terribly surprising that the MLBPA opted to voice its displeasure over the Cubs’ decision to demote Bryant. Time will tell if anyone actually decides to do anything about it, though.