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Wednesday, July 15, 2009
MLB Agents Want Union To Take More Active Stance Against Collusion

With MLB union leader Donald Fehr planning to soon step down from his post, several MLB player agents are encouraging his likely successor, Michael Weiner, to take a more active stance against player collusion.

Unlike most other sports leagues, Major League Baseball has a long and well-documented history of colluding against its players' rights. I provide a detailed account of Baseball's troubling history of collusion in my 2008 Wayne Law Review article, "Moving Past Collusion in Major League Baseball: Healing Old Wounds and Preventing New Ones." This article discusses many topics, including how Baseball's neutral arbitrator, George Nicolau, found Commissioner Bud Selig directly involved in collusion during the 1980s. (see pages 619-20).

With respect to the game's newest collusion allegations, concern of such behavior first surfaced during the 2007-08 off-season when Bonds's agent Jeff Borris announced that he believed the reason why Bonds did not have a single contract offer was collusion. After reviewing the available evidence, the MLBPA announced in October 2008 that it had made a preliminary finding of collusion. However, rather than file a traditional labor grievance against the MLB club-owners, the union instead attempted to resolve the matter through private negotiation.

Thus far, the MLBPA's attempts to privately negotiate have not proved fruitful. Barry Bonds still has not received a single contract offer -- not even at the league minimum salary of $410,000. In addition, a growing number of veteran players have expressed a similar concern that they too have been collusion victims.

While the MLBPA has broad discretion to determine when, if at all, to file a formal collusion grievance, like any union, it is bound by its duty of fair representation. This means that the MLBPA cannot act in an arbitrary, discriminatory, or bad-faith manner against any of its members. Union membership includes even those who have opted out of joint licensing programs, such as Barry Bonds.

Refusing to file a collusion grievance, even after reaching a informal finding of wrongdoing, might place the MLBPA at some risk of facing a claim from Bonds for breach of the duty of fair representation. This risk, in essence, might eventually pressure the MLBPA to file a collusion grievance, presuming their talks with the MLB club-owners do not reduce union concerns of wrongdoing. For these reasons, I fully expect the MLBPA to begin more aggressively addressing these recent concerns of collusion. Hopefully, these talks will lead to some candid answers for both those inside Baseball, and the gane's fans.



I disagree with your assertion that the union would be at risk of breaching the DFR for failure to file a grievance regarding possible collusion. There is precedent that failure to file grievances on behalf of players does not meet the standard for breach of DFR.

I think the union's decision whether or not to file a grievance regarding collusion will be based upon the evidence it has gathered (or lack thereof), not based upon fear of a possible DFR claim.

Blogger Rick Karcher -- 7/15/2009 5:07 PM  

What bother me is that if a washed up, steroid junkie is rebuffed by teams for obvious reasons- that's collusion.

This is why the sport I loved with a passion is one I barely notice anymore. Unbearably whiney players always crying and getting more $$$$$$$$$ when their demands aren't met.

Blogger BLAZER PROPHET -- 7/15/2009 5:47 PM  


Do you have names or citations for any of these DFR cases in sports? I would like to give them a read, especially if you think that I'm interpreting the DFR too broadly.

The one DFR case that pops to my head in sports is Peterson v. Kennedy & NFLPA. However, I find that particular case distinguishable because there the union filed the wrong grievance on Peterson's behalf rather than no grievance at all.

Anonymous Marc Edelman -- 7/15/2009 6:27 PM  


Collusion is a complicated, fact-intensive issue that impacts or involves more than one player. A breach of DFR in this context would be a challenge to the union's decision whether or not to file a grievance, which most courts are not going to allow especially given the complexity of the issue.

I do think Peterson is applicable here because the court also noted that an error in judgment made in the processing of a grievance doesn't establish a claim. Put it this way, if negligence in the filing/handling of a grievance doesn't even meet the standard for breach (as in Peterson), surely a decision whether or not to file a grievance shouldn't meet the standard either.

Blogger Rick Karcher -- 7/16/2009 10:03 AM  

Thanks for expanding, Rick. I certainly agree with you at least to the extent that bringing a DFR claim, in any context, is an uphill battle. I just wanted to make sure there wasn't a sports case other than Peterson that I was missing.

Anonymous Marc Edelman -- 7/16/2009 11:25 AM  

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