The Looming Legal Fallout From Baseball’s Labor Strife: Part II

The current collective bargaining agreement between Major League Baseball and the Major League Baseball Players Association is set to expire at 11:59 p.m. ET on Dec. 1. It is expected that MLB will institute a lockout following the CBA’s expiration, and the lockout could threaten the 2027 season. Sportico’s Michael McCann, who is an attorney and a law professor, breaks down the potential legal fallout of a lockout in two parts. Part I analyzed the outlines of the labor dispute and the legal questions confronting MLB and management. Below is Part II, which looks more closely at the player and labor side of the legal question. 1. Could MLB Players Go on Strike Before the Lockout? Yes, but that is unlikely. MLB players have gone on strike several times in the past. The most recent one, in 1994-95, lasted 232 days and led to the forfeiture of 948 games, including the 1994 World Series. A strike is a work stoppage intended to pressure management into going along with a union’s demands. The advantage for MLB players in striking would be to disrupt MLB’s business operations by not showing up for work. That would lead to canceled games and potential contract problems with broadcast partners, sponsors, food and beverage vendors and others in contract with teams. It would inflict financial pain. But there are several downsides for players in preempting an MLB lockout by going on strike. The most obvious is players would forgo pay. Another is public relations, in that players would likely face criticism for abruptly suspending, and potentially ending, the 2026 season. In contrast, with a lockout, the players can argue they want to play and entertain fans, but the owners are preventing that from happening. 2. Could MLB Turn to Replacement Players? Under basic labor law, MLB could hire temporary workers during a lockout, but that is not going to happen. When players went on strike in 1994-95, MLB teams hired replacement players during spring training in 1995. Some were minor leaguers; others were former MLB players. The move was extremely unpopular with fans, and the replacement players, who were described as scabs, wound up barred from MLBPA membership. The plan ended when, as explained below, a federal judge issued a key injunction, and the players ended the strike shortly before the start of the 1995 season. 3. Could the MLBPA or Individual Players Sue MLB Ahead of a Lockout? A judge would likely dismiss such a lawsuit, because the players and the league have a union-management relationship in which both sides contractually agree to handle difficulties in their relationship through negotiation and arbitration procedures. A judge would be skeptical of a lawsuit that tries to circumvent the labor process. 4. Could the Union or Players Sue MLB After the Lockout Starts? Yes. The method used by players’ associations to litigate against leagues who lock out players is decertification, or the similar step of disclaiming interest. Those methods involve the union ending its exclusive bargaining role on behalf of players and players then suing the league on antitrust grounds. Players could challenge free agency restrictions, the draft and other restraints on trade. These rules are all problematic with antitrust law since they reflect competing businesses (the teams) joining hands to limit how they compete for the services of players, and the players lose money and opportunities as a result. Those restraints are ordinarily exempt from antitrust scrutiny because they were bargained by MLB and MLBPA. Collectively bargained rules are protected by the non-statutory labor exemption, which was forged by a series of U.S. Supreme Court decisions and which grants immunity to collectively bargained rules that primarily impact wages, hours and other employee working conditions. The NFLPA and NBPA both pursued this strategy in 2011. Individual players, including Tom Brady, Drew Brees, Peyton Manning, Vincent Jackson, Mike Vrabel, Carmelo Anthony and Kawhi Leonard, sued in hopes of a court order ending their respective league lockouts. The NFL players’ effort came up short when the U.S. Court of Appeals for the 8th Circuit ruled that a federal law, the Norris-LaGuardia Act, prohibits judges from issuing injunctions in cases that involve or grow out of a labor dispute. 5. Could Prep and College Players Sue If a CBA Bans Them? A lawsuit brought by players who are excluded from MLB on account of new, collectively bargained age-eligibility restrictions would face a daunting challenge. The simple fact is unions and management can lawfully bargain eligibility rules that exclude prospective members, so MLB’s proposed restrictions on players signing until they’re at least 20 years old and two years out of high school would likely hold up if they’re part of a CBA. This is a topic I know well from serving as an attorney for Ohio State running back Maurice Clarett in his antitrust lawsuit against the NFL over its eligibility rule requiring that players be three years removed from high school. Our team argued that the rule violated antitrust law and was not bargained. We won at the district court level but lost at the Second Circuit in a decision authored by then-Judge and now U.S. Supreme Court Justice Sonia Sotomayor. It’s difficult to see a path for baseball players who are excluded being able to litigate their way into the league. 7. Could Fans Sue to Make the Two Sides Settle? Such a lawsuit would be dismissed. Fans lack standing, meaning an actual, concrete injury that stems from the contractual relationship between MLB and the MLBPA. They are strangers to that relationship and are simply upset, which is not a type of injury the law remedies. Season ticket holders and others in contract with teams might have rights to refunds, though any potential litigation could be preempted by mandatory arbitration clauses. 8. Could a Judge End the Lockout? A judge could substantially influence the end of a labor dispute, though ultimately the league and the union will need to strike a deal on their own. In March 1995, Sotomayor granted an injunction sought by the NLRB to implement the terms of an expired CBA. The ruling rejected a new set of economic rules, including restraints on free agency, that MLB unilaterally imposed during the players’ strike. The ruling also reflected Sotomayor’s reasoning that owners and players were still bargaining in good faith and that salary policies were mandatory subjects of bargaining. The strike ended four days later, the 1995 season was saved, and, after further negotiations, the two sides reached a deal in 1996. MLB didn’t get its desired salary cap in the new CBA but did get the luxury tax system. Whether a lockout this December and into 2027 would lead to the kind of litigation that propelled the end of the 1994-95 strike remains to be seen, but it could play out in a similar way. 9. How Will the Lockout End? It will end when the two sides reach a deal both sides will eventually concede could have been reached sooner. Timing matters. If games are lost, both sides will lose money. The U.S. Bureau of Labor Statistics found that NBA owners and the union membership each forfeited about $400 million in revenue due to the lockout-induced reduction in the 2011-12 regular season from 82 games to 66 games. The same government agency reached similar conclusions about the 1994-95 strike, with owners losing about a billion dollars and players losing in the hundreds of millions. Those of us old enough to remember the 1994-95 strike recall it as a disaster for the sport, as fans were annoyed by both owners and players, and many turned to other life interests. It took a steroid-fueled home run chase in 1997 to bring fans back. Timing matters for players in another way. They only have a limited window to play professional baseball due to the unique set of physical skills, fitness and training necessary. One study has found the average MLB career lasts about 5.6 years, meaning most of a player’s professional life will be spent in a career outside the field of play. A lost 2027 season could be like a person in an ordinary career losing a decade of work.