By now, you already know – thanks to Dan Szymborski’s breakdown – that Major League Baseball and the MLB Players’ Association agreed to rule changes for the 2019 and 2020 seasons. Dan provided an analysis of the on-field repercussions of these new rules, but there are other consequences as well – for the first time, it appears the MLBPA might be making inroads in its cold war with the league.
Let’s start with the most momentous development – one that actually had nothing to do with the rule changes. Per Jeff Passan at ESPN:
Perhaps the most important part of the deal isn’t the elimination of August trades, the tweaking of All-Star Game starter selections, the incentives for stars to participate in the derby, the elimination of one-out relievers or the addition of a 26th player next year. It’s the provision that the sides will begin discussing labor issues imminently, far earlier than they typically would with a CBA that doesn’t expire until December 2021.
Those discussions, sources told ESPN, will center on the game’s most fundamental economic tenets — not only free agency but other macro issues with deep consequences. The bargaining over distribution of revenue could be the most difficult gap to bridge, with teams clearly paring back spending on aging players while players chafe at the notion that those 30 and older are no longer worthy of the deals they received in the past. While a compromise could be reached in distributing more money to the younger players whom the current system underpays, the complications of doing so warrant a long runway for discussions.
Now, if you’re a cynic, you might think that merely getting the league to the table doesn’t constitute much of an accomplishment, as the league doesn’t actually have to agree to anything. After all, the Collective Bargaining Agreement gives MLB the right to unilaterally change virtually any on-field rule it wants to without the permission or agreement of the union.
That said, the league doesn’t really have anything to gain financially from beginning negotiations now; record profits and the current CBA term mean it doesn’t have to negotiate anything. If the league had no intention of making at least a few concessions, it might not come to the table at all. And beginning negotiations simply for public relations might not be a good legal strategy because bad faith talks – where one side basically tells the other why they’re wrong – are a waste of money and tend to inflame tensions, not tamp them down. An MLBPA spokesman provided me with a statement from Executive Director Tony Clark, who considered the deal “an important initial step towards a broader dialogue about meeting the more substantive challenges our industry faces in the near and long-term.” (As an aside, I wonder if the reference to “the industry” instead of the “league” might suggest a focus beyond just the major leagues; it will be fascinating to see if minor league salaries become a focus of the new talks, especially given the Blue Jays’ decision to raise minor league wages and recent reports that the issue may finally be of interest to MLB.)
Further, guaranteeing a 26th roster spot all season is a big win for the union, as it essentially creates at least thirty more full-time jobs. These are jobs the league didn’t have to agree to create – remember, Rob Manfred could have just imposed the remaining rules himself, without the union’s agreement – but it did so, without a corresponding concession. The winner of the All-Star game gets a guaranteed million dollars, which is a lot of money considering that this award is nearly twice the major league minimum, and more than the salary of most of 2018’s participants.
So why make these concessions? It’s obviously early, and I’m not privy to the actual dialogue within the league office. But it at least appears that the league is finally considering a work stoppage, and the legal battles that would come along with it, as both a possible and unacceptable outcome. Part of that undoubtedly has to do with the union’s new chief negotiator, Bruce Meyer. Meyer is in no small part responsible for the percentage of revenue guarantees for players in the NFL, NHL, and NBA collective bargaining agreements. Major League Baseball is the only one of the four major North American mens’ sports leagues without such a guarantee, and the league is probably concerned that Meyer would make such a guarantee a sticking point in 2021 talks. Extending an olive branch now allows for the league to take a harder line on this issue later, particularly from a public relations perspective, particularly given Meyer’s history with MLB’s attorneys.
Major League Baseball is chiefly represented by (among other attorneys and law firms) a firm called Proskauer Rose.
There are a handful of law firms that strike fear in the sports world. None, though, is quite like Proskauer Rose. The New York-based firm has represented all of the major sports leagues — NBA, WNBA, NFL, NHL, Major League Baseball and Major League Soccer — produced two commissioners (David Stern and Gary Bettman) and trained a legion of attorneys to outmaneuver players’ advocates. Many Proskauer attorneys eventually work for leagues, teams or key companies in sports. To the extent professional sports connects to one law firm, it’s Proskauer.
Proskauer represented the Marlins when Jeffrey Loria sold the team to the group led by Bruce Sherman and Derek Jeter. They’ve represented the league when it’s been sued, including in the minor league minimum wage cases. When the league gets in trouble, it hires Proskauer.
And Bruce Meyer has had success against Proskauer before. In 2016, for example, when Meyer worked for the National Hockey League, player Dennis Wideman was suspended 20 games by commissioner Gary Bettman. Wideman appealed and the suspension was cut in half by a neutral arbitrator, pursuant to a collective bargaining agreement Meyer helped to negotiate. (The arbitrator in question, James Oldham, also handles baseball arbitrations.) Proskauer, on behalf of the NHL, fired the arbitrator and sued the union, arguing that Bettman’s initial suspension should stand. Meyer, representing the union, won handily.
Now, Meyer, as good as he is, isn’t a panacea for labor unions, as he himself admits. He’s lost to Proskauer more than once, and he is the first to concede that protracted legal battles between leagues and unions have a lot of collateral damage for players.
Adversaries criticize Proskauer for what one described as its “lock out first, ask questions later” approach. But they concede that such tactics have produced results. “It’s been an effective strategy,” said Bruce Meyer, a partner at Weil, Gotshal & Manges, who has represented players’ unions. Although, he adds, “I don’t think it’s a magic pill.”
The current absence of major clashes is probably short-lived, said Mr. Meyer. “There’s a lot of money at stake for both sides. When there’s a lot of money at stake, you see these big battles.”
But part of that is also due to the structural mismatch inherent in labor disputes: the league will always have more money and more resources, while the players have to miss paychecks and potentially decide whether to dissolve their union in order to seek recourse in court. As a result, Meyer’s talents notwithstanding, the league will always have a significant advantage in labor disputes. In the event of a lockout or work stoppage, ownership is far better equipped to deal with a long-lasting impasse than the players are – particularly young, pre-arb players, who would face legitimate financial pressure should their $550,000 annual salaries disappear for more than a few weeks. Recent call-ups from the minors would be in even worse shape. So this agreement shouldn’t be taken as a sign that MLB is quaking in its proverbial boots at the thought of a confrontation with Meyer and the MLBPA. This could be a bit of strategy on MLB’s part, offering small concessions now while preparing for larger fights ahead. It may be a sign of nothing more than the league taking the union more seriously as an adversary. After all, not everything went the MLBPA’s way. The three-batter rule certainly isn’t good for players, the union notably didn’t agree to it, and Manfred imposed it unilaterally.
But that’s still progress. In a very real sense, that MLB was willing to come to the table at all could demonstrates a real breakthrough in the cold war between the league and union, even if merely agreeing to negotiate isn’t a guarantee that the labor disputes of the past couple of years are behind us. For fans dreading the very real prospect of a work stoppage, it’s hard to not be at least cautiously optimistic in the wake of these developments.
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.