To date, the parties have danced around the key issues, knowing that both sides are very firmly entrenched in their positions. Before the 1994-95 negotiations, MLB owners passed a bylaw that requires any new collective bargaining agreement to pass with a three-fourths majority. In other words, any group of eights clubs can act as a voting bloc to prevent the passage of an agreement they don't like. As a result, the owners have become almost as adamant about an external salary restraint as the players are about not ever allowing one.
Like the 1994-95 labor dispute, this one is as much about disagreement among owners as it is about disagreement between owners and players. There are different factions among ownership with regards to labor issues, but the dissent was stifled, until very recently, by the threat of a $1 million fine for public mention or discussion of labor concerns. Don't be surprised if the MLBPA chooses to give ground on revenue sharing in negotiations. Increased revenue sharing will have a mild drag on salaries, but absent a nasty luxury tax, the drag is relatively minor. It will probably be harder to get 23 owners to agree on a revenue-sharing plan than it will be to get the players to agree to one.
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What if collective bargaining fails?
Then the legal dances begin. If the owners and players cannot come to an agreement, owners have the option, if they have negotiated in good faith, to declare an impasse -- a state of hopeless deadlock -- and unilaterally implement new work rules. If the owners do this, the MLBPA will likely file a grievance with the National Labor Relations Board (NLRB).
The NLRB serves as kind of a clearinghouse of legal information, enforcement, mediation, and ultimately, jurisprudence when it comes to labor relations. The NLRB basically has two jobs: guarantee that elections regarding union representation are run properly; and police unfair labor acts. With regard to baseball, the NLRB is the body that heard the MLBPA's grievance in 1995. The NLRB voted 3-2 in agreement with the players that MLB owners had not bargained in good faith, and could not unilaterally eliminate salary arbitration or the agreement not to collude contained in the expired CBA. The NLRB's New York office then sought and obtained a preliminary injunction blocking these moves by the owners, whereupon the players called off their strike and went back to work under the terms of the expired CBA until the parties reached a new agreement.
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So is the NLRB's decision the last of it?
Not quite. If everything goes against the MLBPA and the owners implement new work rules, the MLBPA has another option that is seldom mentioned -- decertification. The members of the MLBPA can vote to decertify the MLBPA as their collective bargaining representative. Such a step would immediately end the collective bargaining relationship, and leave the parties in the positions they would occupy if there had been no CBA at all.
This option was not available to the players in 1994-95. At that time, baseball's unique antitrust exemption meant that once the parties reached a bargaining impasse, the players' only choices were to strike or to operate under the owners' proposal. One provision of the 1996 CBA was an agreement that the owners and players would jointly ask Congress to eliminate baseball's special antitrust exemption with respect to labor matters. The result was the "Curt Flood Act of 1998," which for the first time gave members of the MLBPA the same legal rights enjoyed by their football and basketball counterparts. One of these rights is the opportunity to invoke the antitrust laws against anticompetitive conduct. Although the labor exemption to the antitrust laws allows multi-employer groups in the same industry to negotiate a single CBA covering all of their employees, the exemption applies only as long as a collective bargaining relationship exists. Once the workers decertify their union, each employer must negotiate individually with its employees and prospective employees.
The consequences of decertification could be great. Without an exemption from the antitrust laws, the owners could be sued for any collective action which threatened to reduce player salaries or mobility. Such actions would include a salary cap, a luxury tax, and any limits on free agency not contained in the individual players' contracts. Affected players could sign contracts, then sue for the difference between the salary they received and what they would have earned without the restrictions -- and under antitrust law, all such damages would automatically be tripled.
As Marvin Miller, father of the modern MLBPA, once said, "A union only makes sense if the members have more power with a union than without." Even after decertifying the MLBPA as their bargaining representative, the players could contract as a group for the current management of the MLBPA to take care of administrative tasks, such as representing ballplayers in negotiating licensing agreements, and could individually retain Donald Fehr, Gene Orza or other sympathetic attorneys to sue Major League Baseball.
Exactly. Agree w/you 100%!!
