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June 3, 2003

The New CBA, Part I

Articles I-IV

by Doug Pappas

This is Part One of my extended review of the CBA. If you want to follow along, a PDF file can be downloaded here.

The new collective bargaining agreement between the 30 clubs comprising Major League Baseball and the Major League Baseball Players Association is the ninth in a series which began in 1968. Although the MLBPA was officially organized in 1956, it didn't function as a union for another decade, until Marvin Miller was hired to serve as its full-time executive director in 1966. Judge Robert Cannon, the players' advisor before Miller, got along so well with the owners that he was a serious candidate for Commissioner when Ford Frick retired. Under Cannon, the MLBPA was even funded by the owners, using money from the players' pension fund, in flagrant violation of federal labor law.

One of Miller's first tasks was to formalize the relationships between the owners and the MLBPA, and the terms and conditions of players' employment by the clubs, in a collective bargaining agreement. The first Basic Agreement, as MLB's CBAs have always been officially called, with its provisions retroactive to January 1. As a sign of where the parties stood before the first CBA, one of its provisions eliminated the $30 deposit on their uniforms the players had previously had to pay. Since then, all subsequent CBAs have built on the outline of this original document, rewriting articles to reflect new terms and adding new matters to the end of the document.

The new CBA is thus the product of a 35-year editing process in which every comma has been negotiated over a bargaining table by two groups which don't trust one another. Any paragraph which survives this process is generally repeated in all subsequent CBAs unless the parties see a particular reason to change it. The resulting document thus favors precision and consistency over conciseness and logical organization, making it a difficult read for outsiders. But the owners and players have no reason to rewrite the document for our benefit It's their contract; we're just observers.

Enough of this talk. Let's observe.

PREFACE

The preface declares that the new CBA took effect September 30, 2002, one month to the day after the parties reached the agreement that headed off the threatened player strike. The parties agree that the CBA will bind all new major league players, and any new clubs or new owners, who enter MLB after that date. Clauses of this nature are recognized and enforced under labor law, thereby eliminating one potential loophole Scott Boras might otherwise exploit.

ARTICLES I and II

The CBA opens with a paragraph of legal boilerplate in which the owners and players state what the CBA is intended to do and agree to honor its terms. The second Article appears to start with more boilerplate:

"The Clubs recognize the Association as the sole and exclusive collective bargaining agent for all Major League Players, and individuals who may become Major League Players during the term of this Agreement, with regard to all terms and conditions of employment ..."

In fact, this language from the 1990 CBA was the basis for the court order that effectively ended the 1994-95 labor dispute. It imports into the CBA all the rights and duties imposed by federal labor law on parties to a collective bargaining agreement. Some of these principles are:

  • The parties have a duty to negotiate in good faith with regard to all terms and conditions of employment.

  • After the CBA expires, management can change certain rules at once, but the parties must continue to operate under the old rules with respect to mandatory subjects of collective bargaining--"wages, hours, and other terms and conditions of employment"--until they negotiate to an impasse.

  • Once they reach an impasse, management can impose the terms of its most recent offer while the parties continue to negotiate.

On December 22, 1994, more than four months into the strike that ended the 1994 season, the owners declared an impasse and imposed their then-current offer, which called for a salary cap and the elimination of salary arbitration. The existence of an impasse is a question of fact which the players could, and did, challenge by filing an unfair labor practices complaint with the National Labor Relations Board.

In early February the owners adopted a new, more aggressive strategy. They revoked the changes they had unilaterally implemented...but three days later declared that free agency and salary arbitration weren't mandatory subjects of collective bargaining. If this argument had been accepted, the owners would be free to alter or eliminate these provisions as soon as the old CBA expired, regardless of whether a bargaining impasse had been reached.

Whatever the theoretical merits of this argument, it was a sure loser in court. The federal court which would ultimately decide the issue, the U.S. Court of Appeals for the Second Circuit, had already held in 1987 that in pro basketball, free agency and reserve issues were mandatory subjects of collective bargaining. Judge Sonia Sotomayor had no trouble applying this precedent to bar the owners' action, and when the owners sought an emergency stay of her ruling, the Second Circuit laughed them out of the building. (You know you've had a bad day in court when even the AP says that the judges "repeatedly ridiculed" your lawyer's arguments.)

Immediately after Judge Sotomayor ordered the owners to restore the old rules governing salary arbitration and free agency, the players ended their strike. Although 18 more months would pass before an agreement was finally reached, the 1995 and 1996 seasons were played under the old rules.

The rest of Article II provides that in addition to the terms and conditions negotiated on his behalf by the MLBPA, a player is free to negotiate an individual salary higher than the major league minimum, or any other provisions which actually or potentially provide additional benefits to the player ("Special Covenants"). Special Covenants include such common add-ons as bonuses, a no-trade provision or a suite on the road. If a clause doesn't offer additional benefits, it can't be included in a player contract even if the player consents. This principle was the basis for a 1986 arbitrator's ruling which voided drug testing clauses inserted in some players' contracts.

ARTICLES III and IV

Article III of the CBA mandates the use of a Uniform Player's Contract, which can vary only in terms of the player's salary and other Special Covenants. Article IV expressly authorizes the player to designate an agent to represent him in negotiations. This right, first won by the players in the 1970 CBA, would have been worth a small fortune even if they hadn't subsequently won arbitration or free agency, since talks between a 50-year-old executive negotiating his 500th contract and a 24-year-old high school graduate negotiating his third tend to be a little one-sided. In addition, a club can only require a player's physical presence once during negotiations. If it exercises that right, the club must pay the player's first-class airfare and first-class hotel costs.

New to this CBA is a provision intended to help enforce the MLBPA's certification program for player agents. The player can only be represented by a certified agent, and once he has designated one, no club can negotiate his contract with any other agent until it receives official notice that he has changed to another certified agent.

All player contracts must be submitted to the Commissioner for approval. The Commissioner must act promptly, and must provide a reason for disapproval; his decision can be appealed to MLB's neutral arbitrator. The requirement of prior approval dates to Bill Veeck's use of midget Eddie Gaedel in a game. At that time the rule merely required that before a player could appear in a game, his contract had to be submitted to the league president. Veeck submitted Gaedel's contract as late as possible, then refused to answer communications from the league office until after the game.

Both the Uniform Contract and applicable MLB rules forbid undisclosed side agreements. This rule got Paul Beeston into trouble several years ago. When Beeston signed Roger Clemens to a four-year contract with Toronto before the 1997 season, the two signed a separate document, which was never submitted to the Commissioner, which gave Clemens the right to demand a trade. After Clemens exercised this right, Commissioner Selig fined Beeston--whom he had brought into the Commissioner's Office as President of Major League Baseball--$20,000 for violating the rules against side agreements.

Next week: Article V: The Major League Schedule, and How It Has Evolved.

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