The MLBPA has said it might file a grievance on behalf of Adam LaRoche. A labor lawyer weighs in.
On Wednesday, Adam LaRoche announced his retirement from baseball because his son, Drake, who had accompanied him in the clubhouse every day last season, would no longer be permitted to do so by the White Sox in 2016. While there has been a lot of complaining about LaRoche and Kenny Williams for various reasons—some of them justified—when I learned about the change in White Sox policy, I thought of Justice William O. Douglas’s opinion in the Supreme Court’s case, United Steelworkers of America v. Warrior & Gulf Navigation, 363 U.S. 574 (1960), and how labor law treats conditions of employment that have ripened into established past practices. On Thursday, Tony Clark, Executive Director of the Major League Baseball Players Association (MLBPA) remarked that the Union was looking into whether it would file a grievance on the matter.
In Warrior & Gulf, one of the three Supreme Court cases that developed the scope and process for labor arbitration known as the Steelworkers Trilogy, Justice Douglas wrote, “the labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law—the past practice of the industry and the shop—is equally a part of the collective bargaining agreement although not expressed in it.”
A year later arbitrator Richard Mittenthal, at the urging of Archibald Cox, wrote the seminal treatise on past practice for the Michigan Law Review. He wrote, “past practice may serve to clarify, implement, and even amend contract language. But these are not its only functions. Sometimes an established practice is regarded as a distinct and binding condition of employment, one which cannot change without mutual consent of the parties.”
In order to prove that there is a past practice, the party claiming the practice exists must show that there is: clarity—the practice can be proven to exist; longevity, consistency, and repetition—the practice occurs regularly and not randomly over a period of time; and mutuality and acceptability—both parties know and accept the practice.
In the LaRoche situation, he reportedly brought his son into the clubhouse all season in 2015. Kenny Williams has been quoted as saying, “I just told him that he needed to dial it back, that’s all…. But the kid is there every day: in the clubhouse and on the field, during drills, everywhere.” That quote covers every prong of establishing the past practice. It happened all season, consistently and repeatedly, and not just due to lax supervision, but with the knowledge and acceptance of management. Williams obviously knew about Drake’s presence last year, but chose to accept it, rather than intervene at the time.
In the late 1980s, the MLBPA prevailed in a collusion grievance. Does Barry Bonds have the same evidence on his side?
In 1986 Tim Raines led the National League in batting average and on-base percentage and had 5.6 WARP. He received no free agent offers the following off-season except from his former employer, the Montreal Expos. Eventually Raines re-signed with the Expos, missing all of April but still leading the National League in runs scored in 1987.
In 2007 Barry Bonds led the National League in on-base percentage and walks and had 4.1 WARP. He received no free agent offers the following offseason and never played another game in Major League Baseball.
Raines was one of the prominent players affected by collusion during the mid-‘80s. Last week it was reported that the Major League Baseball Players’ Association was processing a grievance on behalf of Bonds, alleging that the Clubs had colluded against him. To understand the strength of Bonds’ case, it helps to understand what made the case of Raines and the rest of the players who prevailed in the 1980s so strong.
How baseball's unique animal pushes negotiations closer together.
In the past two weeks Mat Latos, Neil Walker, and Jarrod Parker have lost their arbitration hearings and Danny Valencia, Jerry Blevins, and Vance Worley prevailed, determining each of their salaries for the 2015 season. More than a dozen hearings remain before February 20th. Major League Baseball and the Players Association have two types of arbitration in their collective bargaining agreement. The first is grievance arbitration, a common labor-relations dispute-resolution mechanism designed to resolve disputes over the meaning of the negotiated agreement and to deal with disciplinary matters. The other is salary arbitration and it is a rather unique animal.
Salary arbitration is a creation of the collective bargaining agreement and its origin is linked to the reserve clause system. Baseball’s reserve clause is a system that ensures clubs’ unfettered right to control a player for his first six seasons. Historically, it had been much more restrictive, though. Teams could renew players for one additional year after each season, in perpetuity. Curt Flood unsuccessfully challenged the reserve clause to the Supreme Court. See Flood v Kuhn, 407 U.S. 258 (1972). Ultimately, it was upended through a grievance arbitration decision frequently referred to as Messersmith-McNally, after players Andy Messersmith and Dave McNally, who were grievants in the case. The result of Messersmith-McNally was to allow players free agency under certain circumstances. Following the decision, Major League Baseball (“the Clubs”) and the Players Association negotiated a limit to the reserve clause and a process by which players could receive market-like salaries in the years they were under team control. That process is called salary arbitration and it is contained in Article XI, E of the parties’ CBA.
The CBA provides that players with more than three and less than six years of Major League service are eligible for salary arbitration. Additionally, a class called “Super Two” players, with at least two and less than three years of Major League service, are eligible if they have at least 86 days of service during the previous season. They must also rank in the top 22 percent in total service among the players with at least 86 days of service and at least two but less than there years. These service time cutoffs are why clubs are very conscious of when they promote top prospects to the Majors. Such delayed promotions frequently are described as not letting a player’s arbitration clock start ticking.
What makes baseball salary arbitration different from grievance arbitration in the labor-management setting, or arbitration in most other settings, is that it uses a format called final offer arbitration. In most arbitration settings, the arbitrator can craft any decision she feels is appropriate, as long as it conforms to the terms of the agreement and law. In many cases, there is a belief that the arbitrator will “split the baby,” referring to Biblical tale of King Solomon. In final offer arbitration, the parties submit their final offer as their proposed remedy, and the arbitrator is bound to select one offer or the other. The arbitrator has no discretion to fashion a different remedy.
“History attests to the genius of this one-issue process,” said George Cohen, the former Director of the Federal Mediation & Conciliation Service, who served as the MLBPA outside counsel during the 1994-1995 unfair labor practice strike. Cohen said, “at the culmination of an informal, private, expedited hearing the arbitrator must award either the team’s proposed salary or that of the player. And that award is final and binding on all parties. It requires immediate decisions, with no rationale and no precedent.”
Arbitrator Richard I. Bloch, who served as baseball’s grievance arbitrator from 1983 to 1985 and heard baseball salary arbitration cases for nearly 30 years, said that it can be frustrating not to be allowed to justify the award and tell the parties why it was the right decision, but that having no written decision definitely helps with expedition.
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What did we learn from the release of Alex Rodriguez's previously confidential arbitration award?
On Monday, January 13, Alex Rodriguez filed suit against Major League Baseball, the Office of the Commissioner of Baseball, and the Major League Baseball Players Association. After a short oral argument in the United States District Court for the Southern District of New York, Judge William H. Pauley III ordered that A-Rod’s attorneys were required to submit an unredacted and complete version of the previously confidential arbitration award with their filing.
If A-Rod isn't happy with the outcome of his arbitration case, will he have any recourse?
Alex Rodriguez’s attorneys have, at various times, suggested that he will challenge the outcome of his Biogenesis suspension-related grievance arbitration should he not be satisfied with the result—and that only a result of no suspension will be acceptable. (Update: Arbitrator Fredric Horowitz reduced Rodriguez's sentence, but only to 162 games. A-Rod does plan to appeal to federal court.) In a column in November, I wrote, “Courts grant great deference to labor arbitration and arbitrators under what’s referred to as the Steelworkers Trilogy, a series of cases issued by the Supreme Court in 1960.” That is true whether the case involves teamsters in Detroit or Chicago or baseball players in San Diego or New York.
Going public won't help Alex Rodriguez win his case.
On Wednesday, Alex Rodriguez reportedly stormed out of his disciplinary hearing and made various pronouncements to the media, most notably during an interview with Mike Francesa on WFAN and the YES Network. Under normal circumstances, we could see this as his true emotional response to the negative ruling he’d just received (that Commissioner Selig would not be required to testify in the case). But because everything we’ve seen thus far from A-Rod and his team has been so orchestrated, I can interpret this only as a well-rehearsed and well-scheduled event like all of the rest.
Week one of Alex Rodriguez’s disciplinary hearing has come and gone, with another week likely still remaining to be scheduled around the arbitrator’s other commitments at some point in the near future.