Challenging Kris Bryant’s Demotion

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:

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.

Nathaniel Grow is an Associate Professor of Business Law and Ethics and the Yormark Family Director of the Sports Industry Workshop at Indiana University's Kelley School of Business. He is the author of Baseball on Trial: The Origin of Baseball's Antitrust Exemption, as well as a number of sports-related law review articles. You can follow him on Twitter @NathanielGrow. The views expressed are solely those of the author and do not express the views or opinions of Indiana University.

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8 years ago

This would open too big a can of worms for the MLBPA is they were to contest Bryant’s demotion. As stated, Bryant is not a union member; this would set a precedent for the union fighting for non-union members, i.e. minor leaguers. Specifically, this line:

“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 line could apply, theoretically, to any minor league player. I’m not sure the union has the resources or the desire to fight for minor leaguers’ rights, given their history of doing so (they don’t).

8 years ago
Reply to  Phillies113

Yup. If the establish this as a precedent, it’s only a matter of time before an impatient bonus-baby MiLB player who wants to be in the show NOW ends up suing the MLBPA if they don’t file a similar grievance on his behalf.

8 years ago
Reply to  Phillies113

Even if Bryant were a union (say he was on the 40-man roster but was optioned) this whole grievance is absurd.

1) The rules explicitly allow the team to keep him in the minors.
2) There are no rules that require a team to ever call a player up from the minors.
3) There is no requirement that a team field a 25-man roster of the best players.
4) Even if such a rule existed, you cannot legally prove that Bryant (a player without a single MLB appearance) is better than other players on the roster.
5) There is no rule that prohibits a team from acting in its financial best interests rather than in the interests of winning.
6) No one is arguing that the Cubs are doing this out of spite or to punish Bryant.

The entire argument here is that the Cubs are acting in their own long-term interests rather than their short-term interests. And under the CBA and the law, there’s nothing wrong with that. That’s not bad faith.

8 years ago
Reply to  Yirmiyahu

I think your bottom line is probably right, but if you are suggesting that there are no implied limitations on the ability of teams to keep a player in the minors, or not field their best roster, or to put finances above winning, I disagree.

Also, your point #4 is clearly wrong. I don’t know what you mean by “legally prove” but Bryant is clearly better than a number of Cubs major leaguers and virtually anyone on this site could show that.

8 years ago
Reply to  Yirmiyahu

The grievance is unwinnable, but not really absurd. I find it much more absurd that the rules make it advantageous to not field your best team. Does any fan actually think it is a good thing that Bryant isn’t starting the season in the majors? Is it really absurd to believe that if you are clearly one of the best 25 players you should be on the major league team?

I hope the MLBPA and league come to an agreement so in the future this kind of thing doesn’t happen (and it really is a widespread problem, this is just an particularly glaring example).

8 years ago
Reply to  TKDC

If I were a Cubs fan, I’d agree with the Cubs’ decision here. It’s in the best long-term interest of the team. Sacrifice ~0.1 WAR in 2015 for ~4+ WAR in 2012? Who wouldn’t do that?

I agree that the service time rules are a mess, and I oppose pretty much any limit on players’ ability to earn their free market value. But I don’t see the controversy here.

But teams place other considerations over short-term wins all the time, and I don’t see the problem with that. On opening day, they go with the guy with no options rather than the slightly-better player with options. They trade veterans for prospects. Rebuilding teams play cheap young guys over expensive veterans (and we laud them for doing so), even though they know they’ll win fewer games. When teams are out of the playoff race, they play their prospects in September. They keep prospects in the minors rather than have them as a bench player because the player needs everyday at-bats… This is the same thing as any of that.

8 years ago
Reply to  TKDC

I’m not disagreeing with the Cubs logic given the situation, I think you know that.

Your other examples are weak comparisons. Nobody cares whether the 25th or 26th best player makes the team. Nobody cares about young guys getting playing time over aging, useless veterans (useful veterans don’t ride the bench). People do care about a guy who is projected to be an all-star level player. They want to see him play. These things are not the same. This is abundantly clear.

8 years ago
Reply to  TKDC

You must not follow any team blogs if you think nobody cares whether the 25th or 26th best player makes the team.

8 years ago
Reply to  TKDC

Typo above: meant 2021, not 2012.

And TKDC, you’re kind of making my point. Teams make decisions about other players all the time that involve choosing finances/contracts over winning, and (most) people don’t care. This is only an issue because it’s high profile, not because there’s any kind of labor violation here.

EVERY spring, there are multiple players who get optioned to the minors simply because they have options, and there are other (lesser) players who get picked for the 25-man roster ahead of them because the team would lose control of those players if they didn’t get placed on the 25-man (i.e., out-of-option players, or guys with minor league deals with an opt-out). Those guys being optioned to the minors for reasons unrelated to performance/winning are your rank-and-file union members, and there are a lot of them. If the union thought this was a real issue, they would’ve made a fuss about that situation a long time ago.

8 years ago
Reply to  Yirmiyahu

I think the other thing to remember is that it’s all relative, and when Bryant is an active member of the club, he’s going to want the club making decisions that are best for the team over the course of his career there… if that means manipulating service time rules to have more money to aquire a top flight arm in his 5th year with the team, I’m sure he’ll have no issue with them doing what they can to strengthen the organization.

8 years ago
Reply to  Mike

Not when the manipulation was him. No manipulation during Bryant’s 5th year will help him win. By the time that manipulation pays dividends, he’ll likely be gone. Also, I’m glad you’ve provided this insight into 2019 Kris Bryant and his level of selfishness and “we all went through it”ness. I’d say plenty of players care about fair treatment. Maybe not above their own pay checks, but above the “team.”