What Will It Take to Stop Service Time Manipulation in MLB?
More than four years after Chicago Cubs third baseman Kris Bryant filed a grievance against his team over manipulation of service time, an arbitrator ruled last week that the Cubs sufficiently complied with the collective bargaining agreement in keeping Bryant in the minor leagues at the start of the 2015 regular season. As a result, the 28-year-old three-time All Star is set to become a free agent after the 2021 season rather than the upcoming one.
The ruling is poised to spark debate between the Major League Baseball Players Association and MLB as they negotiate a new CBA. Their current CBA will expire on Dec. 1, 2021.
Unpacking the origin of Bryant’s service time dispute
The Cubs drafted Bryant, who starred at the University of San Diego, with the second overall pick in the 2013 MLB draft. He quickly ascended through the Cubs’ system. In January 2015, ESPN ranked Bryant as the top prospect in baseball. A month later, he reported to Cubs spring training in Arizona. Bryant proved to be the club's most impressive hitter in camp. He blasted nine home runs in 40 at-bats and hit .425.
On the merits, Bryant seemed to have earned a spot on the major league roster to start the 2015 season.
But merits aren’t the only consideration for management.
The Cubs were mindful that under Article XX of the collective bargaining agreement, a player isn’t eligible for free agency until he has accumulated six full years of service time in the big leagues. Under Article XXI, a “full year” is defined as a player being on a team’s active roster (or injured list) for 172 or more days. Stated differently, a player who spends 171 days on the roster during a season is not credited with a full year. There are currently 187 days in a typical MLB season; prior to 2018, there were 183 days in a typical season. This means a player who wasn’t on an MLB roster for a couple of weeks in 2015 would miss the necessary days for his season to count as a full year.
Back to Bryant. The Cubs realized that Bryant would likely become a star, perhaps even a franchise player. If the team could wait a dozen days for him to start the 2015 season, they would gain an additional year of Bryant’s service before he could become a free agent.
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Even though it wasn’t “fair” to Bryant, the Cubs elected to gain that additional year of control. As a result, Bryant was shipped to the Iowa Cubs to start the 2015 season and journeyman Mike Olt manned third base for the Cubs instead. Team president Theo Epstein suggested that Bryant’s stay in Iowa would help him work on defense. Epstein therefore implied that the Triple A assignment wasn’t intended to manipulate Bryant’s service time but rather to better prepare him for a career in the big leagues. Many found Epstein’s explanation unpersuasive, if not outright specious. MLBPA went so far as to ominously warn that the assignment “will be addressed in litigation, bargaining or both.”
Bryant played seven games in Iowa, hitting .321 with an OPS of 1.043. The Cubs recalled him on Apr. 17, 2015, a date which not coincidentally limited the number of days Bryant would be on the active major league roster to 171. He would go on to play 151 games in his rookie season, blasting 26 home runs and finishing with an OPS of .857 (Bryant’s defense was less impressive—he finished last in fielding percentage among qualified National League third basemen). Bryant helped the Cubs win 97 games and reach the NLCS. This standout season earned Bryant the unanimous selection as National League Rookie of the Year.
Bryant pursues arbitration, not litigation
Bryant’s agent, Scott Boras, was displeased that the Cubs had dispatched his client to the minor leagues for reasons that seemed unrelated to performance. Boras filed a grievance on behalf of Bryant against the Cubs in 2015, in hopes of obtaining a decision that would permit Bryant to declare for free agency in Nov. 2020 instead of Nov. 2021.
While the difference of one year may not seem dramatic, it is very consequential for professional athletes in most sports. Their ability to earn income playing a sport is limited to a relatively short window of life. Their “prime years” constitute an even shorter period. To that point, according to a study by Alex Speier of the Boston Globe, MLB batters’ peak years are often between ages 26 and 28, and their prime years generally occur between ages 25 and 30. Bryant, who turned 28 last month, has greater earning power as a free agent at age 28 than at age 29.
The reason why Bryant’s dispute was heard through a grievance, rather than a lawsuit, is because MLB and MLBPA contractually agree to use arbitration as the exclusive method of resolution for many types of disputes, include those related to player contracts. This arrangement is common in professional sports leagues where the players have unionized. The circumstances that can spark litigation between unionized players and teams (or unionized players and the league) are narrow and generally disfavored by collectively bargained terms.
Grievances are heard by an impartial arbitrator, the “panel chair” as named in baseball’s CBA. The arbitrator reviews evidence provided by both sides. The evidence is designed to help the arbitrator understand the competing arguments and determine the appropriate resolution. Each side is also permitted to provide testimony at a hearing. While the hearing isn’t a trial—there’s no judge, jury or courtroom, and it’s all done in private—witnesses are cross-examined by attorneys for the other side. Witness testimony is also provided under oath, meaning (at least in theory) a witness who knowingly lies could be charged with the crime of perjury. A stenographer is present during the hearing should either side request a stenographic record.
The arbitrator’s ruling (termed an “award” in arbitration-speak) is accompanied by a written decision. The written decision for the ruling in Bryant’s grievance is not yet available to the public.
Competing legal arguments for Bryant and the Cubs
As Bryant’s “case” against the Cubs was in arbitration, rather than a lawsuit, relevant filings aren’t made public. Nonetheless, both sides are known to have raised certain types of arguments.
For Bryant, his most persuasive argument has been that the Cubs failed to adhere to basic notions of procedural fairness and good faith. Although the Cubs clearly acted within the boundaries of the CBA, Bryant can plausibly maintain that Epstein and other Cubs executives undermined the bargaining relationship between players and teams.
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To that end, the MLBPA didn’t agree to service time provisions with the expectation that those provisions would be used as a weapon against players’ freedom to negotiate with multiple teams. Bryant was exiled to the minors seemingly not for performance or talent reasons. He was sent there, Bryant and Boras insist, so that the Cubs could manipulate his service time and control him for an additional year during the prime of his career.
If this type of “unfairness” argument sounds familiar, it’s because Tom Brady deployed a version of it in his federal case against the NFL in Deflategate. Brady and his attorneys recognized that NFL commissioner Roger Goodell had technically complied with the letter of the CBA in suspending him, but the manner in which the NFL acted—Brady argued—was so unfair that it violated basic procedural fairness and ought to be invalidated. This type of argument sometimes works with courts, though it more often fails. The reason is two part: (1) the party alleged to have engaged in wrongdoing didn’t breach an applicable contract and (2) judges are usually unwilling to “read in” process rights that a party, particularly a sophisticated party, failed to negotiate.
Therein lies the most persuasive defense for the Cubs. The team followed the CBA, the contract that governs the dispute at issue and the contract that Bryant’s union approved. The Cubs can rightfully stress that if Bryant and similarly situated MLB players want additional protections than those contained in the CBA, their union needs to negotiate for those protections. In that same light, the MLBPA is a sophisticated bargaining entity. It retains attorneys, economists and labor experts to broker detailed workplace policies related to players’ wages, hours and other working conditions. If the MLBPA failed to anticipate that a team would pursue its best interests with a rising star like Bryant, then fault arguably doesn’t fall on the Cubs. It falls on the MLBPA for failing to protect Bryant and similarly situated players.
Likewise, the Cubs can assert that “both sides” in the player-club relationship usually try to maximize their financial goals. Boras has a fiduciary duty to pursue the best interests of his clients. Many of those clients, while under his guidance, wait for free agency in order to maximize their potential earnings. Los Angeles Dodgers outfielder Mookie Betts, who reportedly rejected an extension offer from the Red Sox, is a telling example. By all accounts, Betts intends to become a free agent in November and have multiple teams compete for his services. That approach is completely rational—and probably smart for Betts in terms of obtaining the most amount of money possible. However, it also highlights how the economics of baseball are fundamentally a business and how fans’ interests aren’t a protected right.
Team executives, meanwhile, have their own fiduciary duties. They are charged with pursuing the objectives of ownership. Obtaining an extra year of control over Bryant’s services in exchange for starting an inferior player at third base for 12 days in April of 2015 was a sensible tradeoff for the Cubs. It wasn’t “bad faith”, the Cubs would insist. It was smart management under the governing rules.
Cubs executives might also maintain that they acted with baseball interests in mind by having Bryant start at Triple A. At the time, Epstein (an attorney by trade) claimed that Bryant needed to work on his defense. This was at least ostensibly true. Bryant, as mentioned above, struggled with defense in his rookie season. Setting aside offensive production for a moment, Bryant probably would have benefited from more experience playing third base at Triple A. However, the strength of that explanation is severely undermined by the fact that Bryant was recalled from Iowa on the very day he would be able to play in the maximum number of MLB games without his season counting as a full year. Also, even if Bryant’s defense was a work-in-progress, his offensive production clearly outweighed concerns about fielding—particularly when the alternative was Olt, a player who had batted a paltry .160 in 225 at bats for the Cubs during the previous season.
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Going forward: teams will continue to manipulate service time unless they can’t
Bryant isn’t the only “victim” of manipulated service time. In recent years, Vlad Guerrero Jr., Fernando Tatis Jr. and Ronald Acuña Jr. are among those whose teams seemingly took advantage of the rules to the players’ detriment. Teams will continue to do so unless the rules are changed in the next CBA.
Different models to curb service time manipulation have been suggested. For instance, the next CBA could do away with service time altogether and instead tie free agency eligibility (and salary arbitration eligibility) to age. Players could elect to become free agents no later than when they have turned a certain age—say 28 years old—by the end of a season unless they voluntary agree to a contract extension that extends past that age. Others have proposed alternative calculations for service time so that fewer days count as a full year. Still other commentators have suggested the use of an independent panel to review promotion decisions that impact service time.
A more salient question is whether the MLBPA will prioritize service time manipulation as a bargaining priority in 2021. There are reasons to be skeptical.
First, players who are most adversely impacted by service time manipulation are rookies, whereas the most influential players in a union tend to be experienced players. It’s true that Bryant and other veteran players can speak to how they careers were adversely affected by manipulation. But for them the damage is already done—changing the service time calculation would only benefit future players. Along those lines, there are only so many battles that each side in a labor negotiation can fight. Service time manipulation attracts media headlines but might not be at the forefront of MLBPA’s attention during bargaining sessions.
Second, service time manipulation wasn’t remedied when MLB and MLBPA agreed to a new CBA in Nov. 2016. Noticeably, that labor agreement was reached more than a year after the Cubs had generated intense controversy by starting Bryant in Triple A (and long after the Washington Nationals and the Houston Astros had arguably manipulated the service times of Bryce Harper and George Springer, respectively). Much was written about service time manipulation in 2015 and 2016 (including a terrific Boston College Law Review note titled “Out of Service: Does Service Time Manipulation Violate MLB’s CBA?” authored by BC Law student Patrick Kessock, who is now an attorney at the law firm Orrick, Herrington & Sutcliffe). Yet the underlying problem continued into the CBA that currently governs baseball. What’s to say this time around is any different?
MLB and MLBPA would be more inclined to take action if fans and viewers spoke out against service time manipulation. The one-year free agency delay for Bryant is most costly to him, his family and Boras, but fans have a stake in seeing the best players play. MLB markets itself as a truly competitive league. If teams are intentionally playing inferior players in order to suppress the accrual of service time for superior players, those teams are betraying the spirt of competition. Will that matter? Stay tuned.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.
