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A few weeks back,
a
column on the legality of capping draft salaries

generated plenty of email from the JDs in the audience, including an
interesting exchange with Greg G., who responded thus to a question about
how the union could bargain away the rights of players who have yet to join:


It’s a neat question. The issue isn’t union membership; unions bargain away
the rights of nonmembers all the time, both for salaries of as-yet
unselected entry level employees and for any nonunion employees who are
members of the bargaining unit. See Benny Agbayani, etc. The issue is
whether MLB draftees are part of the "bargaining unit," the group
MLBPA is certified to represent at the table.

At law, a bargaining unit needs like interests. Unlike cases of entry-level
employees, the vast majority of draftees are not extended union membership
at hire, nor do they share (as far as I know anyway) in most of the benefits
of the CBA, nor do they work for the same employer or under the same
conditions. There’s a very strong argument that they aren’t members of the
bargaining unit at all, and any provisions concerning them as a class are
invalid.

After I came up with this hypothesis, I stumbled across this snippet in a
parenthetical in Weiler (Harvard Law) & Roberts’ (Tulane Law) Sports and
the Law
:

"Given that baseball draft picks almost invariably start play with
minor league teams, it is doubtful whether the MLBPA has the authority under
the NLRA to define the payments that can be made by major league teams for
minor league players who are not within the scope of the MLBPA bargaining
unit." (p 272)

Note they say doubtful–there is no case law on this point, and sports have
a way of creating out strange labor law decisions.

Maybe this is a ghost issue for the MLBPA. They pretend to bargain it away
at the table, then as soon as it is implemented, an agent funds a lawsuit
knocking the provision out. And even if they lose, the voting membership
isn’t affected at all.


Greg raises two interesting points. One is that a union’s power to negotiate
away the rights of future members may be based on the premise that those
future members will become members at some point. Yet the MLBPA is
negotiating away the rights of players who will never join the
union–the Brien Taylors and Bill Benes and Jason
Kershners
of the world. These players never had the opportunity to join
the union and never accumulated a minute of service time towards a pension,
but their draft bonuses weren’t capped, so it’s hard to argue that they lost
out overall.

However, should the union choose to "agree" to a cap on draft
bonuses–either by player or by team–then the next Bill Bene would clearly
lose out because an organization with which he had no formal affiliation
bargained away his right to maximize his income. It’s ethically dubious, and
it appears it might be legally dubious as well.

The second point Greg raises, which is probably more useful for smirk value
than anything else, is the thought that the MLBPA is fully aware of the
above argument, and is more than willing to give something away that they
don’t have in the first place. So say that the owners and players agree on a
new CBA with caps on draft bonuses. One can easily imagine Scott Boras
popping a vein at the thought of missing out on the next $10-million bonus
baby (a la J.D. Drew) and filing a lawsuit to stop it, at which point the
owners would be out of luck until the end of the agreement, because the
Players Association can feign innocence. It’s unlikely, because the owners
are rich and can afford to hire smarter lawyers than this argument presumes,
but it’s an amusing prospect nonetheless.

Keith Law is an author of Baseball Prospectus. You can contact him by
clicking here.