MLB’s Brewing Fight Over Smokeless Tobacco by Nathaniel Grow April 4, 2016 Although the potential health risks of using smokeless tobacco are by now well established, countless Major League Baseball players nevertheless continue to use these products both on and off the playing field, much to the chagrin of MLB. And despite these dangers, the league has, to date, been largely unable to convince the Major League Baseball Players Association to agree to prohibit players from using tobacco products in MLB stadiums. Recently, however, MLB’s efforts to curtail its players’ use of smokeless tobacco products gained new momentum from a rather unlikely source: local municipal governments. In recent months, three major-league cities – Boston, Los Angeles, and San Francisco – have each passed new laws formally banning the use of smokeless tobacco in public facilities, including MLB ballparks. Meanwhile, with a similar tobacco ban set to take effect throughout the entire state of California in 2017, along with comparable legislation currently making its way through the city governments of Chicago, New York, Toronto, and Washington D.C., smokeless tobacco use could soon be legally prohibited in more than one-third of MLB’s 30 ballparks. When these local ordinances were initially enacted, many were skeptical that the laws would actually deter MLB players from using tobacco products, since any player intent on ignoring the new prohibitions would easily be able to afford to pay a relatively modest monetary fine in exchange for breaking the law. However, while the threat of punishment under these local laws alone may not be enough to change players’ behavior, these ordinances have created a new avenue for MLB to attack the problem, one that could potentially let the league punish players for their tobacco use. Under MLB’s current CBA, the only restrictions imposed on players’ use of smokeless tobacco appears in Attachment 28, which sets forth a policy stating that players, managers, and coaches are not permitted to use any smokeless tobacco product while appearing in a televised interview, and furthermore must conceal any such products (including tobacco tins or packages) at all times when fans are permitted in the ballpark. Even though players are thus generally allowed to use smokeless tobacco during games under the CBA, MLB nevertheless announced last week that it is prepared to punish any player who violates one of the new local ordinances under a different section of the CBA, the agreement’s “just cause” provision. Specifically, Section B of Article XII of the CBA states that: Players may be disciplined for just cause for conduct that is materially detrimental or materially prejudicial to the best interests of Baseball including, but not limited to, engaging in conduct in violation of federal, state or local law. So from MLB’s perspective, while smokeless tobacco use may not generally be prohibited under the CBA, any violation of one of the new municipal ordinances would appear to fall within the agreement’s just cause provision as a violation of a local law. Should the league actually decide to punish a player for violating a smokeless tobacco law, it would likely initially opt to do so by issuing the player a warning and/or fine. The CBA’s existing tobacco policy, for instance, specifies that a player’s first two violations of the policy will result in written warnings, while subsequent infractions will be punished via escalating fines of $1,000 to $5,000. However, should a particular player repeatedly and flagrantly choose to violate the new local ordinances, then it is certainly possible that the league could eventually go so far as to suspend a player for his tobacco use. For its part, the MLBPA has indicated that it will oppose any attempt by the league to punish players for tobacco use under Article XII. So, if a player does decide to violate one of the new laws, and MLB attempts to punish him for it, the union will likely file a grievance against the league in order to appeal the issue to a neutral arbitrator. In the grievance, the union would likely argue that the fact that the CBA specifically addresses smokeless tobacco use, but does not ban it entirely, means that the league cannot now punish players for tobacco-related conduct beyond that prohibited in Attachment 28. In other words, the MLBPA would contend that because a different section of the CBA specifically deals with tobacco use, Article XII’s just cause provision does not apply. Indeed, courts and arbitrators typically hold that in cases where one section of a CBA specifically addresses an issue, that language trumps other, more general provisions in the agreement. In response, MLB would likely argue that it is not punishing the player for using tobacco, per se, but is instead penalizing him for breaking the law (a law that just so happens in this case to be related to tobacco use). Indeed, the league can credibly contend that even if smokeless tobacco is not generally prohibited under the CBA, allowing players to publicly flaunt the law while appearing in uniform would be “prejudicial to the best interests of baseball.” Thus, from MLB’s perspective, the existence of Attachment 28 would not be relevant, since the player was not being punished specifically for his tobacco use. Instead, because the league would assert that it was punishing the player for a violation of the law, it would contend that Article XII applies to his case. Ultimately, an arbitrator would have to decide whether Article XII or Attachment 28 should govern the case. It’s difficult to predict how the arbitrator would rule on this matter, since both sides can assert credible arguments, and the emergence of these smokeless-tobacco-related ordinances was likely something that neither party had anticipated at the time the last CBA was negotiated in 2012. One way or another, this is likely to be an issue that ultimately winds up before an arbitrator. Because some players will almost certainly refuse to abide by the new smokeless tobacco laws, and MLB will undoubtedly feel compelled to punish any player who intentionally breaks the law while appearing in a major league game, it is only a matter of time until an arbitrator is called upon to decide the matter.