Craig Calcaterra

Mike Trout

HBT Extra: Previewing the American League West

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After a long, cold video-free winter Jenna and I are back in front of the camera to throw out some quick impressions of the American League West:

Domonic Brown will start the season on the disabled list

Domonic Brown
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The Phillies made official today what everyone expected would happen when they informed Domonic Brown that will start the season on the disabled list. Brown has been dealing with a sore left Achilles since last week and his recovery was said to be coming along slowly.

All of which means that the Phillies outfield is going to be an even bigger tire fire than expected. Members will include Ben Revere, Darin Ruf and some combination of Jeff Francoeur Jordan Danks, Brian Bogusevic and Rule 5 pick Odubel Herrera.

Feel the excitement.

The doomsday clock for the Rays leaving Tampa Bay moves up a couple of minutes

Watchmen Clock
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I sort of like the Doomsday Clock analogy here because, like the theoretical end of human civilization, the Rays leaving Tampa Bay is something that, however likely, is still kind of a ways off. It’s too early to, say, talk about them talking to other cities or looking at sexy Populous renderings of new ballparks. But we can talk about how much closer we are getting to that point.

So, me and the other scientists here at the small division of the Science and Security Board of the Bulletin of the Atomic Scientists which handles baseball relocations can now tick the big thing ahead a couple of minutes:

Tampa Bay’s five-year stalemate over a new baseball stadium continues — with no obvious end in sight.

St. Petersburg Mayor Rick Kriseman decided Monday he doesn’t have enough City Council votes to forge an agreement that would allow the Tampa Bay Rays to explore potential new stadium sites on both sides of the bay.

That keeps the team playing at Tropicana Field into an indefinite future, Kriseman said, and prevents the city from developing the Trop’s 85 acres.

“We are at a standstill,” he said.

The lease goes until 2027. The real date that probably matters is 2022, which is when the Rays have to be moving on new ballpark construction for their next home. Of course if it becomes economically feasible to just leave and wait for the city to sue the Rays for breaching the lease I suppose someone could do that sooner, but as of now we’re, symbolically speaking, still five minutes to midnight.

Fred Wilpon did not talk to the media yesterday and the media is quite perturbed at this

Fred Wilpon
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source: AP

Yesterday Mets owner Fred Wilpon held a closed-door meeting with his team. Then he opened the door and left and did not answer reporters’ questions about what was said behind closed doors. If I was Wilpon I’d probably say something like “well, the reason the doors were closed in that meeting was because what was said was not for public consumption,” but you can’t fault him for not doing that. I mean, that’s implied, right?

Apparently not clearly enough, because this morning at least three columns were written about Wilpon not talking to the media about what he said to his employees in a private conversation.

Bergen Record:

By all accounts this was a terrific meeting. Without going into specifics, David Wright said, “Fred has always been upbeat.” Terry Collins said it was “very, very impactful.” There were no threats, no win-or-else edicts issued. Wilpon played his hand to perfection, at least until the meeting ended and he strolled by a group of reporters.

That’s when Wilpon blew off a chance to deliver a state-of-the-team address. Instead of stopping, even for a few moments, to pump up the fan base, Wilpon walked right by. Not a word, not a gesture, no eye contact. Just feigned oblivion.

Newsday:

Fred Wilpon had plenty to say Monday at Tradition Field, where the Mets’ principal owner has been more visible this year than during any other spring training in recent memory . . . In fact, Wilpon has spoken to just about everyone during the past six weeks, with one notable exception.

You.

And that’s not right.

Daily News:

Anyone who has reported on the Mets since 2011 knows the Fred Wilpon blowoff . . . The Mets beat writers received what I’m assured was a very polite version of this on Monday morning in Port St. Lucie, after he addressed the team (the Mets resist the notion that Wilpon “blew off” the media when he cruised by, and say that he simply didn’t wish to speak about a private meeting).

All of these columns were couched in terms of “hey, Wilpon is not speaking to you, the fans!” But I truly question if any Mets fans exist who actually care and/or believe what Fred Wilpon says after all of these years. They’d sooner punch him in the face, I suspect, than hang on his every word. Unless they did so in order to loudly declare why each of those words was a damn hurtful lie.

But maybe some Mets fan, somewhere really would feel better if Wilpon told him that the Mets were going to be OK. I’m not sure I want to meet such a strange, gullible person, but they may actually exist. And if they do I suppose I will grant that this is a legitimate complaint rather than the latest instance of late spring training media complaining.

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

Kris Bryant
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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.