Craig Calcaterra

Kris Bryant

The Collective Bargaining Agreement doesn’t even enter into the Kris Bryant situation, right?

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Warning: law stuff.

Despite the general feeling (shared by me) that the MLBPA’s threat of litigation over the Kris Bryant thing doesn’t have any legs, there are some smart people I know who aren’t prepared to dismiss the possibility entirely. One of those smart people is occasional A’s blogger Jason Wojciechowski, who is also a full-time labor lawyer, so he knows this stuff way better than almost all of us.

Last night Wojciechowski, in tweets and in a brief blog post on the topic, responded to the argument that most immediately made in response to the MLBPA’s statement. That argument is, basically, “hey, the union agreed to these rules, so they can’t now sue over them.” Here’s Wojciechowski:

This is incorrect as a matter of contract law, especially collective-bargaining contract law. Not everything that isn’t explicitly banned by the letter of the agreement is something the employer is permitted to do. I don’t know where this misconception came from, but it’s time to end it.

That is true. In all contracts there are various implied covenants requiring the parties to act in good faith and, in the labor law context I presume that there are far more implied with respect to management than in a usual contract given the power discrepancy between the parties and the general purposes of labor law as a means of protecting workers. Woj doesn’t expand on the legal specific here, but his overall point is that “hey, the MLBPA could lose this, but it’s not as simple as everyone is saying it is.” On Twitter he outlined some arguments the union could make in a hearing about the Cubs’ intentions with respect to Bryant, questions they could be asked about what he was working on in the minors to become major league ready, etc.

I am receptive to all of that. And, if and when Woj or any other labor lawyers weigh in on this with some greater edification I’ll gladly update this post and revise my thinking on it. But until then, I’m wondering why we’d even get to the conversation about the Chicago Cubs’ intent or how the idea of “not everything that isn’t specifically banned by the letter of the agreement is something the lawyer is permitted to do” even comes into play.

Why? Because Kris Bryant isn’t even a party to the agreement. The Collective Bargaining Agreement, I mean. Bryant is not on the Cubs’ 40-man roster and never has been. Union membership and thus — I presume anyway (see below) — the CBA doesn’t even enter into this. Rather, the conditions of Bryant’s employment are set by the Minor League Uniform Player Contract. That contract specifically gives teams the power to transfer and assign minor league players. Plenary power, it appears. Here is the language from Section XVIII of the Uniform Minor League Contract:

A. Player specifically agrees and understands that this Minor League Uniform Player Contract may be freely assigned by Club, and re-assigned by any assignee Club, to any other Major League Club or Minor League Club.

There are many other provisions which follow regarding transfers, trades, promotions and the like. All of it contains the word “freely” before the relevant verb. To a player under this contract, there is no secondary “but if . . .” There is no new right or benefit that he has in the offing like arbitration or major league free agency that the club can fairly be said to messing with. The only expectation the player has is, eventually, becoming a minor league free agent after six or seven years, and assignments have no bearing on that.

In light of that, I’m not sure how we ever get to Woj’s arguments about what an employer may be allowed to do under a CBA via explicit or implicit prohibitions. The CBA simply doesn’t attach here and what does attach affirmatively allows the club to assign player at their will and whim. Perhaps this is a very different conversation if and when a player is called up, is added to the 40-man roster, but then is sent back down to stop their service time clock. In that case the CBA has been activated with respect to that player and then is turned off, if you will. But here it’s never turned on. Bryant is just as covered by the CBA as the guy working at the warehouse down the street.

One possible caveat, and again, as someone not too familiar with labor law, any help here is appreciated: the union could possibly argue that in doing what they did, the Cubs are preventing a player from joining the union who may have otherwise done so. Some analogy to the trouble that a non-union shop gets into when it actively seeks to prevent their employees from organizing or from gaining the basic requirements of employment which might trigger eligibility for the union. But again, we’re sort of far afield at this point.

In light of all of that I’m looking at the possible outcomes here:

  • An MLBPA lawsuit is rejected before a hearing is even had;
  • An MLBPA lawsuit proceeds, and evidence is heard and the MLBPA has some decent arguments but they eventually lose; and
  • The MLBPA files and wins a lawsuit.

And I still can’t see how we get past the first option and even on to the second. Can someone tell me why I’m wrong?

UPDATE: From commenter DLF9:

Two points:

First, there have been grievances previously on a club’s ability to release or send a player down. See, for example, Juan Bonilla vs. San Diego in the mid 1980s. In that case, the arbitrator applied a ‘good faith’ requirement to the decision to release Bonilla. He held that the team had to show that it was a baseball related decision and not merely one in response to Bonilla having previously won at salary arbitration. Note that the good faith standard was easily met and the arbitrators have gone out of their way to give a lot of discretion to the team in its roster decision. But that means that the grievance is definitionally not frivolous.

Second, the power to grieve is not a power granted to the individual players, but rather the Union itself. The decision to hold a player back for two weeks to retain control has a slight but downward pressure on salaries paid to all players. MLBPA has standing to argue on its own behalf and not just as the representative of an individual not yet on the 40 man roster.

Because of the discretion (properly?) given to the clubs, I think this is not a case where the Union will prevail, but in the litigation context Craig is used to, the argument survives a motion to dismiss for failure to state a claim and may survive a motion for summary judgment.

FWIW, Before coming to my sense and leaving the practice of law, I was a labor lawyer and former part-time labor arbitrator and mediator.

 

UPDATE: Drew Storen leaves game with blister on foot

Drew Storen
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UPDATE: The Nationals announced that Storen left with a blister on his right foot. Sounds like it’s not a big deal. The Nationals could use a break.

4:05 p.m. ET: This is not good: Drew Storen left the Nationals-Cardinals game a few minutes ago with an apparent injury.

It was in the sixth inning, and Storen left after facing four batters and recording two outs. After walking Kolten Wong he motioned to the dugout. Matt Williams and a trainer came out and Storen left the game.

The Nats are suffering from a serious injury bug lately. Denard Span, Anthony Rendon, Casey Janssen, Jayson Werth, Nate McLouth are all out of commission right now. Yunel Escobar and Stephen Strasburg just recently returned to action after missing some time.

Updates on Storen’s condition as we hear about it.

The MLBPA releases a statement on Kris Bryant, mentions possible litigation

Tony Clark
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From the MLBPA:

Dealing with it in the CBA? Sure. In litigation? I think that’s a bad idea for reasons I said last week. And not just because they won’t be successful. But because even the act of suing over this would signal weakness to the rank and file.

In the wake of the Kris Bryant demotion, Scott Boras’ vocabulary has gone to 11

Spinal Tap But it goes to eleven
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source:

We all knew that Scott Boras was not going to be happy when his client, Kris Bryant, got sent down to the minors by the Cubs. Here are the quotes he gave to Jon Morosi of Fox this afternoon. They’re pretty fantastic:

That’s all pretty colorful. And, as we wait for ten-year veterans and union reps to wage CBA service time battle over a kid who has never played in the bigs (may be a long wait) let’s play some armchair Scott Boras psychology.

I know a lot of people who have good non-everyday vocabularies — people who know TONS of fancy or seldom-used words but usually manage to speak like normal humans in day-to-day conversations — but who tend to revert to larger, sometimes even clinical or technical words when they’re angry, upset or otherwise emotional, etc. Almost as a defense. They’re people who don’t lose their composure often, so in order to not lose it when they may be close to it, go sort of clinical with their bad selves.

I certainly do it a lot myself. I don’t raise my voice often, but I do sort of retreat to my left brain and start talking in stilted language with a lot of not-everyday words peppering my speech. Not big words. Nothing crazy-complicated. But just words you tend to read more than actually say. Things like “ersatz” and “apogee” for example! People who know me know that I’m pissed when I do that. They laugh their butts off at me when I do it too.

A lot of lawyers do this, actually. I’ve had bosses like this. Colleagues. I think it’s part of our training. I was certainly taught that if you’re the one screaming in an argument, you’re the one losing. Scott Boras is a lawyer. And he’s got more discipline than I or the lawyers I know have. Probably more than all of us put together. I bet he hasn’t raised his voice in anger in decades. But I also bet that that’s why we get the “ersatz” and “apogee” and “nonessential time awaiting” and all of that you see above.

Lawyers are taught another thing too. When the facts are on your side, argue the facts. When the law is on your side, argue the law. When neither is on your side, pound your fist on the table. Boras isn’t a fist-pounder, but he really has nothing better to do regarding Kris Bryant than pound his fist. And I bet he lectures anyone within earshot in the most hilariously stilted-language possible when he’s trying hard not to look like he’s pounding his fist.

Kevin Correia released by the Mariners

Kevin Correia
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The Mariners have released right hander Kevin Correia.

Correia just didn’t have a place in the M’s rotation given the presence of five dudes who are, well, better than Kevin Correia, and the 34-year-old was knocked around like crazy in three relief appearances since being signed earlier this month.

Two years ago the Twins gave Correia a two-year, $10 million deal and was awful in those two years. He was traded to the Dodgers late last season and posted an ugly 8.03 ERA in 25 innings.

Barring a team needing some cannon fodder after multiple injuries to starters, Correia may have reached the end of the line.