Why the CBA Should Be the Province of Lawyers

On Tuesday, Joe Sheehan wrote a typically thought-provoking piece addressing, in this case, the problem of service-time manipulation, an issue which seems to have reached a tipping point in the 2018 season, a year in which Ronald Acuna, Peter Alonso, Vladimir Guerrero Jr., Gleyber Torres, and even Byron Buxton have been subject to extended minor-league seasoning so their teams can get an extra year of contractual control.

While the Major League Baseball Players’ Association hired Bruce Meyer in part to address these issues when the next collective bargaining agreement is negotiated, Sheehan suggests we rethink the entire process, and calls for “a constitutional convention to address the problems that four decades of patching its rules have created.” In the relevant passage, Sheehan suggests that collective bargaining isn’t necessarily up to the task of solving problems ranging from service-time manipulation to pitching changes to the structure of the playoffs.

We’ve relied on Collective Bargaining Agreement negotiations, twice a decade or so, to address these questions, but those negotiations have proven inadequate to the task. The fact is, these questions exceed the scope of a CBA negotiation. Answering them needs to be a collaborative process, not a confrontational one. Representatives from the league and the teams and the players should be involved, but so should vested interests from all over baseball.

Historians like John Thorn bring perspective about how the game on the field has evolved. Analysts like MLB.com’s Mike Petriello have a grasp on how technology is changing player evaluation and strategy. Controversies over player behavior have alienated fans; giving visible, insightful women like Fangraphs’ Meg Rowley and Baseball Prospectus’ Rachel [sic] McDaniel a seat at the table would send a message that baseball wants everyone to feel welcome.

Let me start by saying that Meg, Rachael, Mike, and John are all fine people and excellent analysts. I’m proud in particular to call Meg a colleague (it is not, in my view, hyperbole to call Meg Rowley the most talented baseball writer working today), and all would, I’m sure, make fine decisions in a position of decision-making baseball authority. With that caveat, however, I have to [differ with] Joe in two primary areas. First, the only people who should have a “seat at the table” of answering most of these questions are lawyers working on behalf of the two sides (players and owners). And second, answering these questions isn’t beyond the scope of a collectively bargained agreement; to the extent recent CBAs have failed to answer them, that’s a failure of negotiation, not a failure of collective bargaining generally.

Let’s start with that second point, by posing another question — namely, what, exactly, is the purpose of a collective bargaining agreement? A CBA is a contract which determines the respective rights, duties, and obligations of an employer and its employees. But it’s also more than that. A collective bargaining agreement doesn’t just determine pay, benefits, and hours worked — it can also determine workplace conditions and safety, discipline, job parameters, and retirement pensions. So when MLB’s collective bargaining agreement makes determinations regarding, for instance, the Home Run Derby, it’s not just establishing the rules of a contest you and I watch on television. It’s setting the ground rules for a part of the employment of every major leaguer.

It’s easy to forget that for major- (and minor-) league baseball players, this is a career and gainful employment, not a game. So the type of game baseball is to be should fall under the province of a collective bargaining agreement, because the very questions Sheehan wants answered impact players — and their work conditions — more than anyone else. To show why, let’s address each of five questions Sheehan poses.

  1. How long should a baseball game take? In other words, what should be a baseball player’s working hours, and for how much time should he work each day?
  2. How long should the season — and postseason — be? In other words, for how much of the year should players work? Should they receive three months off per year? More? Less?
  3. What’s the right mix of balls in play and Three True Outcomes? Under what conditions should baseball players work? And what skills should be rewarded? Should pitchers throw harder, thereby increasing injury risk? Should hitters focus more on power or contact to get paid?
  4. How many pitchers should be allowed to pitch in a game or a series? How much injury risk should a pitcher assume in his job? And how many pitchers may a given team employ?
  5. What pressures should be brought to bear, if any, on teams that fall back on shared revenues to subsidize long periods of losing? If we’re going to penalize underperforming teams, we’re also — by definition — penalizing that team’s players. On the other hand, tanking makes it harder for baseball players to find jobs.

In other words, each and every question Sheehan poses directly addresses the working conditions and scope of employment for major leaguers. That’s exactly what collective bargaining is supposed to address. Collective bargaining can, and should address the service-time-manipulation issue — it is very much within the ambit of collective bargaining to (a) determine who is covered by the CBA, (b) determine for how long they are covered, and (c) identify attempts to avoid or circumvent payment schedules. The fact that it hasn’t thus far in the context of Major League Baseball doesn’t mean that the concept of collective bargaining is flawed; rather, it instead means that the parties to this CBA perhaps haven’t collectively bargained well. To use a baseball analogy, Sheehan’s argument is a bit like concluding that the idea of hitting is inherently flawed because you saw Alcides Escobar come to the plate 600 times. Bruce Meyer changes that calculus greatly, and I’d honestly be surprised if many of these questions weren’t addressed in the next CBA.

And that brings us to Sheehan’s second point — namely, that historians, analysts, and fans a seat at the table would improve baseball. In a vacuum, I don’t disagree with the proposition. But inherently, any time you bring in outsiders to discuss workplace conditions, you’re going to get a suboptimal result. Look at it this way: most people wouldn’t want questions like “How long should the work day be?” and “How many days per year should you work?” being answered by anyone other than themselves or their duly appointed representatives, whether unionized or otherwise. The mere fact that baseball is entertainment doesn’t change the fact that we are, by inserting ourselves into these questions, opining on others’ workplace conditions. That a historian or analyst thinks baseball should have a Wild Card series instead of a game might very well be a great idea. (I think it is!) But historians and analysts aren’t the ones who will have to play those extra games or pay for those extra games. Changing baseball’s schedule means people working more or less, or being paid more or less. The people who are most impacted by workplace changes are the workers, and that’s why the workers should be the ones with the final say.

Now, Sheehan proposes a collaborative approach to negotiations, rather than a confrontational one. But Major League Baseball is a business, and that means money — a lot of money — is at stake. So whilst such a proposal sounds great in theory, it’s not realistic in an industry where every franchise but one is worth $1 billion or more (the Tampa Bay Rays are at $900 million), and teams are the targets of grievances for their failure to spend money. If MLB owners were interested in a collaborative process to improve the game as opposed to short-term profit maximization, Peter Alonso, Byron Buxton, Vlad Jr., and Eloy Jimenez would be in the major leagues right now.

So who should be at the table? The players, the owners, and their respective lawyers. Lawyers have a fiduciary duty to get the best deal possible for their clients, and here we have a complex relationship with a lot of money. Every change made “for the good of the game” has a cost to be absorbed, whether by players or ownership (but, given their place in this nexus, usually the players). Want fewer pitching changes and longer starts from hurlers? Pitchers then have to assume a greater risk of injury. Want fewer strikeouts and home runs and more small ball? Great, but now players who hit home runs and strikeout pitchers will make less money. Want to cap a baseball game at three hours? Great, but be prepared to lose advertising revenue — a loss that has to be made up somewhere.

There are also legal issues obviously inherent to any collective-bargaining endeavor. Changing the rules can lead to legal challenges. And, unfortunately, it’s my experience that negotiations just don’t work well when collaborative because each party’s incentives and aims just aren’t the same. That doesn’t mean negotiations need be filled with animosity — I’ve had plenty of spirited, confrontational negotiations that were entirely professional, friendly, and amiable — but owners are seeking to maximize profits, and players are seeking to maximize workplace salaries and benefits. Those two goals are necessarily contradictory.

I do personally think that, in a couple of areas, Sheehan’s ideas have merit. For one thing, I agree with Sheehan that baseball needs better representation from women, LGBT people, and people of color. It is not possible to collectively bargain away sexism or racism, for a couple of reasons. While some issues, like the Mets’ decision to employ Jose Reyes for the entire 2018 season (which was dubious for a whole host of reasons) can be solved by collective bargaining (for example, by instituting more significant punishments for domestic abusers), collective bargaining won’t fix the attitudes in baseball front offices that led to those decisions in the first place. Further, MLB’s currently fraught relationship with disadvantaged groups and minorities isn’t the result of poor collective bargaining so much as it is the result of baseball players and teams behaving badly.

In that sense, Sheehan’s point has merit: teams should provide more access and exposure for their players and front-office employees to women, LGBT people, and people of color, particularly given the well-established diversity problem currently plaguing baseball’s front offices. So giving access to non-male voices like Meg Rowley and Rachael McDaniel (as well as Mary Craig, Jen Mac Ramos, Julie DiCaro, Kelly Wallace, Liz Roscher, and Britni de la Cretaz, among many others) would be a pretty significant step. Further, there are ways to accomplish that within the window of collective bargaining. For instance, there are lawyers who are women, LGBT, and/or people of color. I’m one of them!

But all in all, the idea of a grand constitutional convention to redraft baseball is, I think, more trouble than it’s worth. Writing constitutions is hard. And, at the end of the day, when we watch a baseball game, we’re watching people at work. It should be up to those people to decide how their own workplace runs.

We hoped you liked reading Why the CBA Should Be the Province of Lawyers by Sheryl Ring!

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Sheryl Ring is an attorney and General Counsel at Open Communities, a non-profit 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.

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55 Comments on "Why the CBA Should Be the Province of Lawyers"

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marc w
Member
marc w

If we’re going to celebrate voices like Rachael McDaniel’s (and we should), then we should probably do them the courtesy of spelling their name right. The error was in Joe’s piece at BA, too, of course.

Meg Rowley
Editor
Member

It has been updated. Thanks!