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Report: Mets will re-sign Yoenis Cespedes on four-year, $110 million deal
0:35 | MLB
Report: Mets will re-sign Yoenis Cespedes on four-year, $110 million deal
Tuesday November 29th, 2016

It’s been more than 20 years since the last work stoppage in Major League Baseball, but a new one could happen starting this Thursday if a new collective bargaining agreement between the league and the players' union is not in place when the existing CBA expires. The failure to reach a deal would set off a damaging labor dispute that would disrupt the off-season and could endanger the start of spring training. Here's a breakdown of the key issues at play and what might happen next.

The Key Issues

CBAs are complicated and wordy documents—the current one is 298 pages. Most of that language will be replicated in a new CBA, but certain key points are holding things up. Possible changes to drug testing and domestic violence policies, roster size alterations and player travel expectations are on the table, but the majority of the haggling this time around centers on revisions to the competitive balance tax—better known as the luxury tax—and free-agent compensation. A third primary topic was expected to be an international draft for amateur players, but Fox Sports’ Ken Rosenthal reported on Monday that that is no longer an absolute requirement of owners for a new CBA.

1. Reworking the luxury tax

Of the four major leagues in the U.S., MLB is the only one without a salary cap. This arrangement reflects, among other things, the historic strength of the MLBPA and the willingness of players to strike when faced with owners’ demands for salary constraints, as they have done four times before. MLB players also enjoy (mostly) guaranteed contracts, supplying them an additional advantage over players in certain other leagues.

But MLB is by no means a complete free market. Since 2003, MLB clubs have been subject to a competitive balance tax that is designed to deter them from spending much more on player salaries and benefits than their rivals. Indeed, clubs that spend more than a predetermined threshold must pay a “tax” ranging from 17.5% to 50% depending on the number of years the team has exceeded the threshold. The current tax threshold is $189 million, a calculation that includes both pay and certain employment benefits. Clubs that exceed this amount pay a tax on the difference between their payroll and $189 million.

To illustrate: The Dodgers were assessed a record-setting $43.6 million tax last December due to a payroll of $297.9 million. Taxed money collected by MLB is pooled into a central fund and distributed for various purposes, including to satisfy annuity compensation agreements and to finance various benefits for active players.

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Players and their agents—who, although not part of the MLBPA bargaining unit, significantly influence players’ bargaining preferences—would like to see revised methods for calculating the luxury tax and its accompanying threshold. Revisions might render these policies less influential on team spending. To the extent MLB demands equity among its clubs, players would prefer the league adopt other devices, such as alterations to its revenue sharing plan. Under the existing revenue sharing plan, each club calculates its “net local revenue,” a figure that includes (among other things) gate receipts and certain TV revenue, and allocates 34% of that figure to MLB. In turn, MLB reallocates the combined pool of net local revenue to smaller market teams. This plan (which is more complicated than I just made it sound) could be modified in ways that more substantially aid smaller market teams without significantly curbing player salaries.

2. Reducing draft pick compensation for signing another team’s free agent

Since the 1970s, MLB and MLBPA have negotiated restrictions on what free agency means and how quickly players can obtain it. One such restriction is draft pick compensation for teams that sign free agents. While the formula for draft pick compensation has changed significantly in recent years, its basic idea remains the same: Teams that sign another team’s free agent need to, in effect, compensate that team with a draft pick. Draft pick compensation thus suppresses wages, as a team is less likely to bid for a free agent if it must also give up a draft pick.

Players would like to see the elimination of the requirement that teams must relinquish draft picks. If owners refuse to eliminate draft pick compensation, a compromise might include lower-round draft picks as the required compensation.

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3. An international draft

As mentioned above, this is no longer a sticking point in negotiations, but if it becomes one again, a refresher is in order.

A draft, of course, is a contractual device to suppress labor costs. By preventing them from negotiating with multiple teams and by limiting how much teams can spend on them, drafted players have less bargaining leverage when negotiating a contract with the teams that selected them.

The current category of eligible persons for the annual MLB Draft excludes about one out of every four players who will eventually make it to the big leagues. Consider that on 2015's Opening Day rosters, 24% of players were born outside of either the U.S. (including its territories) or Canada; 10% of players were born in the Dominican Republic and 8% in Venezuela. In lieu of being drafted, those players signed with MLB clubs as free agents, in some cases for millions of dollars. Since 2012, however, MLB has severely restricted how much money each club can annually spend on international free agents. Those restrictions, it should be noted, do not apply to international players who are regarded as professional players in Japan, South Korea, Taiwan and Cuba.

If adopted in the next CBA, an international draft would subject a broader category of amateur players to the draft. Instead of those players signing as free agents, they would be drafted and presumably subject to a more restrictive wage scale than is currently available.

The Lockout Risk

So what happens on Thursday if there is no deal?

If the two sides are close to an agreement, there is a good chance they will simply extend the life of the current CBA to a nearby date that is mutually agreeable. Such an extension would preserve existing rules for offseason activities, including free agency signings and trades. One drawback to an extension is that clubs would remain uncertain of potential changes in a new CBA, and that could affect how they conduct their off-season business.

If the two sides remain apart and an extension is not mutually acceptable, MLB would likely institute a lockout. A lockout is when an employer denies its employees their wages, health care, access to facilities and other conditions of employment. Here, MLB and the 30 ownership groups would collectively decide to deny employment to MLB players in hopes that the players acquiesce to management demands for a new CBA.

A lockout this December would put MLB on pause, though it would be much less disruptive than a lockout in the spring that would lead to canceled games. Still, teams would be barred from signing free agents and making trades, and players would be forbidden from communicating with team officials, including coaches and managers. MLB players normally receive their annual salaries in installments during the regular season; absent some other pay arrangement (such as deferred money), they wouldn’t miss paychecks during a winter lockout. But they would be denied non-salary employment benefits, such as access to training facilities. Players and their families could continue to receive health care benefits by utilizing the Consolidated Omnibus Budget Reconciliation Act (COBRA), though those benefits would be at the players’ own expense.

MLBPA might also make financial resources available to its locked out membership. Unions typically have “lock out” and “strike” funds that help ease the financial burden of employees not working. In baseball, a portion of the players’ licensing money is withheld each year. That portion could be disbursed to players in December and therefore used as a lockout fund.

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In response to a lockout, players would be poised to take legal action. One potential action would be the MLBPA “disclaiming interest” in its membership. A disclaimer of interest would represent the MLBPA declaring that it no longer represents MLB players and thus does not bargain on their behalf.

At least in theory, after a disclaimer of interest, each player would represent himself in negotiating an employment relationship with MLB and one of its clubs. As a practical matter, MLB players would disclaim interest in order to sue the league under federal antitrust law. Significant economic policies in baseball—such as the luxury tax, the amateur draft and drug testing—are only exempt from antitrust scrutiny because they were created through collective bargaining. If those policies were no longer protected by collective bargaining (due to the MLBPA disclaiming interest), those policies would be vulnerable to antitrust scrutiny. They might then be found unlawful on grounds that competing MLB clubs have conspired to adopt anti-competitive policies. These policies, so the argument goes, damage MLB players’ opportunities to maximize their wages, hours and other working conditions.

There would two major hurdles for players in suing MLB under antirust law. First, Baseball enjoys a historical antitrust exemption that stems from a U.S. Supreme Court decision in the 1922 Federal Baseball Case. In that case, the Supreme Court reasoned that baseball games, which are played in one state, did not constitute interstate commerce—a requirement for application of federal antirust law. Although the legal reasoning in Federal Baseball is now viewed as antiquated—the modern judicial interpretation of “commerce” is far more expansive than in 1922 and would recognize that the production and broadcast of baseball games extend to many states— Supreme Court precedents are difficult to overturn due to the principle of stare decisis, which dictates that judges should uphold rulings and honor precedent.

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The Supreme Court has upheld MLB's antitrust exemption on several occasions. On the other hand, Congress and President Bill Clinton reduced the scope of MLB's antitrust exemption through the Curt Flood Act of 1998. Named for the former outfielder whose challenge of the reserve clause in the 1970s eventually led to free agency, the Act intended to remove the exemption for certain issues, including matters “directly relating to or affecting employment of major league baseball players.” A sensible reading of the Act would suggest that players’ salary, benefits and drug testing would all fall within its scope, thereby potentially empowering players to overcome MLB's antitrust exemption in a lawsuit. It should be stressed, however, that there is significant debate in the legal community over how to interpret the Act. Further, it has not yet been used in response to an MLB lockout and would be a matter of first impression for a judge applying it in such a scenario.

Even if baseball players could overcome the antitrust exemption through the Curt Flood Act, they would still face unfavorable precedent in Tom Brady et al. v. NFL. That case constituted NFL players’ legal response to the 2011 NFL lockout. The league defeated Brady and 14 other named player-plaintiffs by convincing the U.S. Court of Appeals for the Eighth Circuit that, per the Norris-LaGuardia Act of 1933, federal judges are barred from issuing injunctions to lift a lockout. In essence, the decision prevented players from successfully suing the NFL on antitrust grounds. While MLB players could hope for a better outcome in a different federal circuit, the Brady case would be persuasive precedent in favor of the league.

At the end of the day, the best path for MLB and MLB players is to reach a deal before Thursday. If they fail to do so, the hot stove season might soon be frozen.

Michael McCann, SI's legal analyst, provides legal and business analysis for The Crossover. He is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

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