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


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.


McCutchen’s sacrifice fly lifts Pirates to 5-4 win, extends Athletics’ road losing streak to 15

Scott Galvin-USA TODAY Sports
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PITTSBURGH – Andrew McCutchen’s tiebreaking sacrifice fly in the eighth inning lifted Pittsburgh to a 5-4 victory over Oakland on Monday night, extending the Pirates’ win streak to six games and sending the Athletics to their record-tying 15th consecutive road loss.

The 15 straight defeats away from home matches the Athletics’ record since they moved from Kansas City in 1968. Oakland set that mark in 1986.

The major league-worst Athletics (12-50) have lost five games in a row overall. They are on pace to finish the season exactly 100 games under .500 at 31-131.

“It’s tough,” Athletics manager Mark Kotsay said. “Tonight’s game, we didn’t play well enough to win the game. I don’t want to say we gave the game away but there were a lot of instances where we had a chance to capitalize on opportunities and didn’t do it.”

McCutchen also singled and drew three walks to go with two RBIs. The 2013 NL MVP now has 1,998 career hits.

With the score tied at 4, Ji Hwan Bae led off the decisive eighth inning with a single off Sam Moll (0-3) and advanced to third on Austin Hedges’ one-out single. McCutchen’s sac fly plated Bae.

“I was just trying to get the job done. I understand the situation there,” McCutchen said. “We just need to get the run. I was trying to bear down against a hard thrower and trying to get that run in as much as I can, and I was able to do it and have a good at-bat.”

Angel Perdomo (1-0) retired both hitters he faced. and Colin Holdeman pitched a scoreless ninth inning for his first career save. It was an eventful inning for Holderman as the first three batters reached base, but he struck out Carlos Perez with runners on the corners to end it.

“I began my career as a starting pitcher in the minor leagues but ever since I was switched to relief, this has been the goal, to get a save in the big leagues,” Holderman said.

Pittsburgh starter Johan Oviedo gave up three runs and four hits with five strikeouts and two walks.

Oakland left-hander JP Sears did not allow a hit until Mark Mathias’ leadoff single in the fifth but was unable to make it through the inning. Sears was charged with one run in 4 2/3 innings while allowing two hits, walking five and striking out six.

Sears has not allowed more than two runs in five consecutive starts. His nine no-decisions are the most in the major leagues.

Ryan Noda and Brent Rooker had two hits each for the Athletics.

The Athletics tied the score at 4-4 in the eighth inning on pinch-hitter Aledmys Diaz’s run-scoring double. Oakland left the bases loaded, though, when Nick Allen hit an inning-ending flyout.

Consecutive bases-loaded walks keyed a three-run sixth inning that put the Pirates 4-3. McCutchen and Bryan Reynolds each worked bases on balls off Shintaro Fujinami to tie the score at 3-all and pinch-hitter Jack Suwinski followed with a sacrifice fly.

The Athletics opened the scoring in the first inning when rookie Esteury Ruiz reached on catcher’s interference, stole his MLB-leading 30th base of the season and scored on Noda’s single. Seth Brown doubled in a run in the third and came home on Perez’s sacrifice fly to push Oakland’s lead to 3-0.

Connor Joe hit an RBI double for the Pirates in the fifth.

The Pirates drew 10 walks, their most in a game in nearly two years.

“We had a bunch of opportunities that we didn’t capitalize (on), but the thing I think I was most proud of is we got down and we didn’t rush to get back,” Pittsburgh manager Derek Shelton said. “We were still patient.”


Athletics: LHP Kirby Snead (strained shoulder) is expected to pitch in the Arizona Complex League on Tuesday, which will be his first game action since spring training. … RHP Freddy Tarnok (strained shoulder) will throw a bullpen on Tuesday.


Pirates catching prospect Henry Davis was promoted to Triple-A Indianapolis from Double-A Altoona. In 41 games at Double-A this season, the 23-year-old hit .284 with 10 home runs and seven stolen bases.

“He was performing offensively at a level where we felt like he was more than ready to meet the challenges,” Pirates general manager Ben Cherington said. “He improved as an offensive player even since spring training, focusing on the things we were challenging him on. Defensively, he’s made strides too.”

Davis was the first overall selection in the 2021 amateur draft from the University of Louisville.


Athletics RHP James Kaprielian (0-6, 8.12 ERA) will make his first start in June after taking the loss in all four starts in May and face RHP Mitch Keller (7-1, 3.25). Keller has eight or more strikeouts in seven consecutive starts, the longest streak by a Pirates pitcher in the modern era (since 1901).