The Kris Bryant Situation, as Explained by a Labor Lawyer
Just because it isn't technically illegal for the Cubs to leave Kris Bryant languishing in AAA to stall his service clock, doesn't mean it's legal—or the right thing to do.
Photo by Mark J. Rebilas-USA TODAY Sports
Had enough Kris Bryant yet? The answer is almost certainly yes, but as of a few days ago, the MLBPA hadn't:
This social media press release came in response to the Cubs officially reassigning Bryant to the minor leagues. Everyone knew it would be happening, and everyone knew the decision was driven entirely by service time considerations. Those being, as Craig Goldstein helpfully explained, that the Cubs will get one more year of Bryant at a below-market rate if they don't add him to their 40-man roster until the season is several weeks old. The Cubs' front office has sworn up and down that this is a baseball decision, and that Bryant will spend his [however many days it takes for this year to count as a full season] at Triple-A Iowa honing his defense at third base, and playing some outfield, and, uh ... things of that nature.
You are welcome to believe that if you'd like, but I wouldn't advise it. For purposes of this article in particular, I'm going to take it as a given that, as MLBPA argued in its tweetstatement, the Cubs could believe that Bryant is going to post psychedelic Barry Bonds numbers from day one and they'd still have sent him to Triple-A for the requisite number of weeks. So the question we're left with, then, is how seriously to take the MLBPA's threat of "litigation." Does the union have a plausible claim?
The general consensus has been something between "no" and "LOL absolutely not." Two major grounds have been argued. The first is that service time gimmicks aren't banned by the collective bargaining agreement, and thus are legal. The second is that the union has no standing, because Bryant isn't yet a member.
The latter is pretty straightforwardly wrong. A commenter on Craig Calcaterra's piece at Hardball Talk pointed out, correctly, that the MLBPA would be asserting its own right as the representative of Major League players to force teams to abide by the collective bargaining agreement. That is, if the Cubs violated the CBA, the union has standing under the CBA to remedy that violation, regardless of the identity of the specific victim.
Further, if the union were to file a grievance, it would be in the strongest position to win after the inevitable call-up. This is for a couple of reasons, one of which is about the proof the union will need to present to show that the Cubs acted in bad faith in violation of the CBA, and which is explained further below. The other reason is that, once Bryant is called up, the remedy the union can seek is pay and, more importantly, service time credits for the weeks that Bryant should have been on the 40-man roster. If the union acts before Bryant is called up, they'd essentially be demanding that the Cubs affirmatively act to put Bryant on the roster, which is a demand fraught with difficulties.
Even if the union is required (by contractual time limits) or desires to file its grievance before Bryant is called up, the course of the grievance procedure will surely not be completed quickly. For reasons having nothing to do with the law and everything to do with baseball, Bryant would likely be called up while that grievance is pending.
Having used the word "grievance" repeatedly, let me stop here and note that despite the union writing "litigation," the most likely avenue to address the issue is a grievance under the collective bargaining agreement, which would end up in an arbitration in front of permanent arbitrator Fred Horowitz. There is also some possibility, as my fellow labor lawyer Eugene Freedman noted, that proceedings before the National Labor Relations Board could be instituted. Without getting too far into the weeds of what that would look like—I promise—it's also not "litigation" in any way you're probably thinking. We can probably chalk up the union's use of that word to either loose talk or a dumbing down of the language for a general baseball audience. That or Twitter's character limit, which may be why press releases are not ordinarily issued 140 characters at a time.
As to the merits of that grievance: The best argument for the union is that the service time rules and the nature of the competitive enterprise of baseball give rise to an implied requirement that teams act in good faith in terms of when and whether to promote players to the majors. "Good faith," in this case, means that teams honestly attempt to use the players in their minor-league system to build a competitive big league baseball team and let the service time chips fall where they may from those baseball decisions. (Scott Boras, it should be noted, also believes this is the union's argument.)
This is not a slam-dunk winner, but it is decidedly more in keeping with the way contracts— and especially collective bargaining agreements—are interpreted than the "if it's not illegal, it's legal" position. In the absence of language explicitly controlling the situation, the question the arbitrator will consider is the parties' intent, and it beggars belief to suppose that the union intended that teams could manipulate players' service time without a shred of on-field justification.
The boundaries of this good faith requirement aren't obvious, but that's a frequent problem in law, and one that shouldn't stop us from believing that it exists. The lines emerge through case-by-case development, and nobody expects every possible contingency to be accounted for every time a legal rule is laid down. It's a society (or a workplace) we're building, after all, not an algorithm.
If the Cubs believed they had no obligation to act in good faith, what point would there be in protesting so vigorously that Bryant needs to work on his defensive footwork or his approach on two-strike changeups low and away or his autograph hand or whatever? Why, if the Cubs are permitted to do whatever they damn well please with Bryant's service time, don't they just say they're doing this so they can keep him in the fold for an extra year?
As it happens, those unconvincing protestations aren't necessary for public relations. A robust 89 percent of the fans polled at SB Nation's Bleed Cubbie Blue, with full acknowledgment that the move was being made for service time reasons, voted that Bryant should start the year in Triple-A. Eighty-nine percent! That's the Internet, and that's just 2,600 souls, and maybe Joe High Life in the bleachers has a different take.
But also anyone who has spent time reading about baseball on the internet has seen enough "wah wah the millionaire is crying about losing another million, what an overpaid baby and by the way throw Scott Boras into the lake while you're at it" comments to feel some measure of confidence that many fans could give two shits about Bryant's service time, or Bryant himself. Which is to say that the best explanation for Theo Epstein's mealymouthing has less to do with offending fans than his fear of providing the union ammunition in a grievance.
None of this means the union would win an actual grievance, by the way. It's just to point out that the union has a basis for arguing that the demotion was improper. The arbitrator would likely defer, to a certain extent, to the team's explanations for Bryant's demotion. It would be up to the union to show that those explanations are bunk, which is a complicated thing to prove. The core idea would be to demonstrate a disconnect between the Cubs' statements and their actions. What did they have Bryant work on at Iowa, really? What instruction did they give their minor league coaches regarding his development? What benchmarks did Bryant meet that convinced them, two weeks (or so) later, that he was ready for the majors? What could their scouts possibly have told them on April 12th that was so different from what they heard on March 29th?
The union would surely hammer that last issue hard, pointing out how convenient it was that Bryant happened to become big league ready just after the time passed when the Cubs would gain themselves a seventh year of team control. (The union might also consider hiring Twitter power-user @weed_mouse as a research consultant.)
Aside from the general difficulty of predicting how an arbitrator will rule, we don't have enough of the facts to know whether all of that circumstantial stuff adds up to a union win. But the general outline should suffice to show that, no, the MLBPA isn't just blowing smoke for the sake of appeasing Boras.
The specifics of one poor, slugging sap's situation aside, the larger issue with "if it's not illegal, it's legal"—beyond that it isn't how the law works—is that it accepts a notion of proper business behavior that's wholly divorced from ethics, morals, or respect for the well-being of others. Whether you know labor law or not, it should be plain that this extreme laissez-faire reading of corporate responsibility is faintly sociopathic. "Firms should do whatever they can get away with to make as much money as possible" is one way to design a society, certainly, but it's not the only way, and surely is not the one most people would choose if they realized they had a choice.
The issue, in other words, is that we no longer sense that we do have a choice. "If it's not illegal, it's legal" uncritically accepts—and even perversely embraces or, hell, celebrates—a crushing defeat. It abdicates to powerful interests the absolute right to accumulate power, and denies any legitimate ability to the powerless to take equal advantage. "Aspirational" is a nice word for this worldview. There are a great many less-nice ones.
Thankfully for all of us non-oligarchs, there are laws explicitly regulating harmful business behaviors that are easy to define and police. The problem is that some behavior isn't susceptible to formal regulation. Move the boundaries all you want on free agency and arbitration in baseball—teams will still find a way to manipulate those boundaries if the union (and everyone else) lets them get away with it.
Which means we need a set of softer norms dealing with behaviors that the law, whether intentionally or not, leaves untouched. We must feel free to shame or boycott bad actors until those on the stronger side of things act acceptably. We cannot merely nod dumbly when firms—which we must constantly remind ourselves are not people but merely collections of capital that we allow to exist because they benefit us—try to tell us that we have to leave them alone and let them do what they do best. What imperative or holy writ requires that we do any such thing?
It's all choice, every step of the way, and to willingly grant businesses the power to operate in all ways not explicitly banned by law and contract seems a particularly poor choice. Law alone cannot suffice, particularly not as long as law has been perverted into merely another tool of the elite. Good faith, honesty, fair dealing, and empathy—squishy as these concepts are, porous and contestable as their boundaries will always be—must have a place. "It's not illegal" doesn't end the conversation; it starts it.