Red Sox

Red Sox

In his nearly 30 years as counsel for the Major League Baseball Players Association, Gene Orza didn't care whether a job applicant loved baseball. In fact, his first hire didn't know what year Bill Mazeroski won the World Series with a walk-off home run (1960).

“Back in 1962, somebody would have gotten shot for suggesting Mazeroski hit the home run in ’59,” Orza said.

If Orza, a staunch defender and advocate for player rights, sought to add a lawyer, he sought a union lawyer. A candidate who would say they could work for either the owners or the players simply because they were a great lawyer wouldn't make it past a second interview.

“To linguists, there are no synonyms,” Orza said. “Your vocation and your avocation are different. You can’t make them the same thing. If you could, there wouldn’t be two words for them. There’d only be one. As kind of a joke, I’d say that to people. But in fact, I meant it.

"I don’t want somebody who just as easily could work for the St. Louis Cardinals or the Baseball Players Association. We want believers.”

* * * * *

Commanding and pugnacious, Orza still has believers. Agents continue to phone Orza, who joined the union as associate general counsel in 1984 and retired as chief operating officer of the PA in 2011. 

We know you’re 72 years old, they tell him. But we need you. These agents -- some who fought with Orza ferociously -- pine for the union’s glory days, when Don Fehr or the late Marvin Miller ran the show, when institutional knowledge and tenacity were abundant. When the strength of what remains the greatest union in sports appeared greater, when its bargaining efforts were more visibly fruitful.


“Sorry, kids, I’m out of this,” Orza said. “I’m done. I’m happily retired doing crossword puzzles. But you know, I know [some agents are] unhappy. But, a lot of times they’re unhappy about something they don’t know. They don’t realize . . . There are judgments made in collective bargaining about what you can do with the hand you’ve been dealt.”

From the free-agent camp in Florida this spring to J.D. Martinez’s lengthy time on the market over the winter; from the Yankees’ and Dodgers’ trimmed payrolls to a framework that has made losing an attractive path for other clubs, everything ties back to the collective bargaining agreement.

The CBA sounds boring, and often is. Its negotiations -- some of them all-nighters before a deal was agreed to heading into December 2016 -- can be highly technical, grounded in analytics and economic forecasting. Nonetheless, the document sculpts the landscape.

"[They] have a stake in how [management treats] foreign players,” Orza said of today's players. “[They] have a stake in how . . . rookies or salary-arbitration eligibles [are treated]. Across the line. You can always point to any group of players who are seemingly fractured with differences and say, ‘You don’t get it. Here’s what history tells you. Like it or not, you’re all in one big boat.' "

In 1985 there was a two-day strike. The issue was management's desire to raise the eligibility for salary arbitration from two seasons' experience to three. The union didn't want to give up that year.

It was hard for Orza and company to hold the membership together. The most senior players, the backbone of the union, did not see how fighting over that one year of arbitration eligibility was in their interest.

“Certain players were actually going around to clubhouses against our wishes, saying, ‘Guys, do you really want to go on strike over salary arbitration?’ ” Orza said.

So the union surrendered the extra year. And then . . . 

“Starting in the 1986 offseason, I started getting calls from all of these mid-level free agents," said Orza. "[Guys] who aren’t getting offers, who aren’t getting jobs. Who eventually left the game. And they couldn’t understand why.

“And I had to explain to them: That what we had done in ’85 is, we made people who had two to three years of service much more valuable to the clubs. Because they could get the same [type of] player, but much cheaper now, ‘cause the [two- to three-year guys] didn’t have any [arbitration] rights.

"The number of players from zero years of service to three years of service in 1987 was 28.4 percent higher than the numbers of players in that same category in 1985. Where did those additional players come from? The guys whose jobs they were taking were the very guys who didn’t see how [the] fate of the salary-arbitration eligibles [affected] them." 


Orza sees a similarity today.

"What’s happening now is the Players Association has made young players, very young players, extremely attractive to clubs.”

This time, other CBA concessions have contributed. And players’ eyes have opened today, too, because of the slow free-agent market. But they may have opened a little too late.

“As a union, as players we talk about it a lot,” free-agent pitcher Tyler Clippard said recently after pitching at the union’s camp for unsigned players in Florida. “How can we improve it? You know, it’s a tough ask. Because no matter what we think from the players’ perspective, the owners are always going to do the best they can to make themselves the most money. In whatever avenue that they see fit.”

* * * * *

Legal and business decisions determine what you see on the field.

The union’s current executive director, Tony Clark, is an ex-player. He was heavily involved in the union during his time in the major leagues, including in negotiations. In the most recent round of bargaining, for the 2017-21 deal, he led negotiations for the first time.

Not long after bargaining concluded, general counsel David Prouty was officially pushed out. Despite his title, Prouty was said to be on the outskirts of the last round of bargaining. He declined comment for this story.

Prouty was replaced by Ian Penny, who joined the PA in 2010 after previously working for the NHL Players’ Association. Other PA lawyers involved with bargaining include deputy general counsel Matt Nussbaum -- hired in 2011 and considered a rising power -- senior advisor to the executive director Rick Shapiro (who was hired in 2009), and assistant general counsel Bob Lenaghan (hired in 1995).

The top match-up appears a mismatch.

MLB’s bargaining team is led by chief legal officer Dan Halem, who has been with them full-time since 2007. Halem went to Harvard Law School and worked as a consultant for MLB as well as the NBA in his previous job, as a partner in the labor law department of Proskauer. Halem declined comment for this story.

Halem’s boss, commissioner Rob Manfred, was the league’s previous lead negotiator and has similar training. Manfred also attended Harvard Law and made partner in the labor law division of a top firm, as well. From 1998-2012, Manfred directed collective bargaining.

Today, the union sees a shrunken market for free-agent veterans and has filed a grievance against four teams for allegedly not spending revenue-sharing dollars.

How much Clark, the PA’s executive director, and his team could have done to prevent the present climate is debatable. Less debatable is the unhappiness Clark has to contend with from some players and agents, the latter intricately tied into the union.

“They have a lot of influence and a lot of power,” Orza said of agents. “[My philosophy was that] I’ll fight with them when I have to, but they’re not my enemy . . . To the extent that their business suffers because of something the Players Association does, they become natural antagonists.”


Two remedies are available to Clark try to assuage players and agents: Fight the narrative around perceived shortcomings, or change. The PA is attempting to do both, and has realized it needs to supplement its staff. 

The union is moving toward adding more legal and bargaining resources for the future, sources with knowledge of the union’s thinking said.

“The union works really closely with the agent community, and I think that in some ways the agent community can be looked at as an extension of the union,” said one player agent. “The more powerful or influential the agents are, then that can add leverage for the union, in particular Tony. And in some ways [that support can] offset some of the resource limitations that Tony and the union have had.

“The biggest challenge that is facing the union going forward is making sure that they have enough resources to be able to arm themselves in these high-stakes negotiations.”

At least one hire to supplement Clark’s staff has already been made. Jeffrey Perconte, a former assistant U.S. attorney in Chicago, was added in October as an assistant general counsel. Whether the union seeks and finds an attack dog like Orza is to be seen.

“I think Tony can provide the leadership necessary,” Orza said when asked if the union needs outside help. “I think a lot depends upon the degree to which Tony himself is comfortable with that idea. And I believe that he probably is.

"The best test of whether or not Tony needs any help is if Tony believes he does . . .  I have great faith in Tony, and Tony’s a remarkable guy in many respects.”

* * * * *

Throughout the union’s history, bargaining has been similar to the union’s overall structure: The executive director is in charge. Hypothetically, Clark could maintain his position and oversight, but allow future negotiations to be handled more directly by trained lawyers and economists. Consider that on the other side, Manfred delegates to Halem, just as former commissioner Bud Selig delegated to Manfred.

Clark declined comment for this story. In spring 2017, he was asked whether the union’s bargaining unit had the same manpower as MLB’s.

“The Major League Baseball staff is much larger than the union’s staff,” Clark said. “So I don’t know if that’s what you mean with respect to manpower. There are more bodies. But whether we have more bodies or less bodies, our bodies are very able.”

There are 24 people in MLB’s labor relations department, the league said. That includes administrators who may not necessarily touch the actual bargaining process. The PA has about 50 employees on its entire staff, bargaining or otherwise.

Both sides contract outside firms, but MLB in recent years made a clear effort to beef up its in-house, labor-relations analytics. The PA in recent years has appeared more focused on adding folks with on-field backgrounds. Dave Winfield was hired in 2013, for example.


In 2016, Omar Minaya, a former GM of the Mets, had a base salary of $663,000 as a special advisor. Minaya made more than all but two staff lawyers: Shapiro, who earned $750,000, and Prouty, at $722,625. Minaya re-joined the Mets in December 2017.

To Orza, the resource the union may actually lack most is institutional recall. For a generation, the union racked up victories as the clubs continually brought in new negotiators.

“[The owners did so] foolishly believing that the reason they didn’t succeed in the prior negotiation is because they didn’t have good negotiators, or good leadership or whatever it might be,” Orza said. “On the other hand, the players had the same people: ’76 and ’80, ’81, ’85, ’90, ’94 -- 2000, we had all of the same people. It was Marvin and Don. 

“We had tremendous archival capability. . . . That has changed. Rob has been around now for 20 years. Tony’s been around for one negotiation. The staff is composed of people who had very little negotiating experience.”

* * * * 

The present labor deal was the first led by Clark. People with knowledge of the negotiations said there were times when his inexperience contributed to a lagging schedule, leading to a rush in late November 2016.

The potential for work stoppage may have been a more daunting proposition for Clark than it would have been for an experienced director. Owners may have realized this. They threatened a lockout for December 2016, a time on the calendar when a lockout is relatively negligible because no games are scheduled.

“If I have one criticism of the Players Association, and I don’t mean it as a criticism,” Orza said, “I would like to see it be less interested in being liked, and more interested in not caring about what people think of it.

"The Players Association has a lot of people who are dedicated professionals. They know what they have to do. Look, I do sense that sometimes . . . getting along has a higher priority than it used to maybe. With management. Because that creates getting along with the population. Players don’t want to be criticized in the newspapers.

“My job is not to be liked. My job was never to be liked.”

* * * * *

One of Marvin Miller’s great successes was creating buy-in, and doing so in a way where the players felt an idea was their own. Like any union membership, the PA has different levels of interest and involvement. The clubs are more centralized and comprise a smaller group. But, the interests of players may actually be more closely aligned than the desires of big- and small-market teams.

It's incumbent upon the union to lead the players to the most important issues, which in baseball (and most anywhere) is almost always money. Some believe player comforts rather than core economic matters drew too much interest in the most recent CBA. Some inside the union buck at this suggestion.


Nonetheless, the membership may have taken some things for granted.

“It gets harder when players are making this much money,” Orza said. “The salary cap that the clubs were talking about in 1994 was demonstrably going to be a huge hit to players (making it easier to rally the players behind the union's cause). But you know, when you’re making $30 million dollars a year instead of $32 million dollars a year, at a certain point the numbers [to some players feel] irrelevant.”

The factors leading to the state of free agency are numerous. Six years to get to free agency is an increasingly long time. The average batters' age in 2004 was 29.3 years old. In 2017, it was 28.3.

"I attribute it to talent," Manfred said this spring when asked if teams like young players because they're cheaper. "I really do believe that clubs want to win. Clubs deploy what is necessarily a limited amount of resources to put the very best product they can put on the field with a long-term view towards winning. I don’t think that in most situations that the economics of who makes what fundamentally drives those decisions."

The amateur draft and international markets were closer to free markets as recently as 2011. The last two CBAs have seen those markets essentially capped, creating ripple effects that union negotiators apparently didn't foresee. Losing teams -- those that don't sign players -- gain greater ability to acquire cost-controlled amateur talent in both markets.

“The major-leaguers want the money directed to them,” one agent said of the amateur draft system put in place in the 2012-16 deal. “I said, ‘My God, don’t you understand what they just did? They took and directed all the money away from the free agents because they made draft picks more valuable.’ ”

The luxury tax threshold, $197 million this year, has taken some of the big-market teams out of the market on a rotating basis. If you stay under for a year, you reset your penalties. The Dodgers and Yankees plan to be under this year. 

There is no corollary tax on teams for spending a low amount. 

“Players in the other sports that have salary caps, they don’t know -- because they’re making so much money -- what the salary cap is costing them,” Orza said. “Because they’re making so much, they don’t focus on it. Indeed, one of the problems the Players Association currently has is . . . if no one pays this tax, it’s operating as a cap.

“We didn’t go through all we went through in [the 1994 strike] to adapt a salary cap by a different name. A tax that nobody pays is a salary cap.”

The Red Sox and Nationals are at least two teams that are going to pay the tax this year. The tax is tiered: up to $20 million over, and the penalties are not particularly severe.

“We have teams treating it as a cap -- to the extent that we may -- that’s a different place than we have ever been,” Clark said this spring. "That’s not to suggest that there haven’t been teams that treat it as such. That is to suggest that if it is a league-wide change and adjustment, that’s something that we have to consider, despite the fact that there have only been two [teams] that have gone $40 [million] or more over. So everybody seems to be playing in that first $20 million buffer.”


* * * * *

Because of the success of the Astros and the Cubs after periods of losing, an oversimplified narrative has grown for both: That losing and draft position are the primary reasons they were able to win. Fans generally may be more willing to accept rebuilding projects. That takes more teams out of the market.

Clark believes the Marlins did something different, however -- something worse. The Marlins dealt excellent players, like Giancarlo Stanton and Christian Yelich. That’s a teardown of something viable, rather than a rebuild of something depleted.

“When you have clubs who appear to be less interested in [being] the last team standing,” Clark said this spring, “and the market itself is being flooded with talent that would otherwise be landing spots for potential free agents, everything starts to shift. And move in directions that are a little more difficult to anticipate.”

Yet there was some level of anticipation. There were discussions relatively early in bargaining regarding draft order, but changes never gained traction. In part, that’s because the union felt clubs are more interested in losing to save money, rather than to stockpile draft picks. Draft picks, ultimately, are risky, no matter what the Astros-Cubs narrative has become.

“The non-competitive dynamic we see is an merely an excuse for profit-taking,” agent Scott Boras said. “The dynamics of revenue sharing and the competitive balance tax were clearly designed to create competition, and the rewards of the draft have never been proven unilaterally to be the foundation of a championship team.”

All four teams the union just filed a grievance against receive revenue-sharing dollars: The Pirates, A’s, Rays and Marlins. Revenue-sharing, including the usage of distributed dollars, is a bargained matter.

In a tougher area to legislate, clubs seem averse to a roster that's mediocre, even though baseball’s randomness means a decent team can become a good one quickly. When you have the aforementioned benefits of amateur talent acquisition and cost savings as a losing club, why spend money to project as a middle-of-the-pack team? 

Even teams that project as contenders may be hesitant to add free agents. Why win 99 games instead of 97, when you’re staring at a crapshoot in the playoffs? (Well, to make your team better, would be one answer.)

“This is all about money,” one person with knowledge of the union’s thinking said. “They’re making a decision that my team is not good enough to compete for a division title this year. And the result of that is, yes, I might win five more games if I sign this player for $10 million or $15 million or $20 million. But it’s not worth it to me. The concept of the marginal win I think is very much at play, and I think that’s a problem.”


Marginal wins aren't a new concept or debate, though. Foresight is the name of the game.

“Welcome to the challenge that is collective bargaining,” Clark said in the spring of 2016, as the most recent deal was being formulated. “You sit down in a room and you appreciate that there’s going to be a give and take . . . Here’s the framework, here are the guidelines, let’s go. You leave the table thinking that you’ve got a comprehensive rule, a proposal, a system, whatever it is, done. Only to find out when the lights come on and everybody starts playing, using the rule that you gave, some unintended consequences happen. That is the challenge that is collective bargaining.

“You hope there is a level of integrity and morality to what is negotiated and there aren’t manipulations … detrimental to the process as a whole.”

A status-quo deal, however, is not a promise of the status quo.

“There is none,” Orza said when asked what obligation parties have beyond what is in the agreement. “You make an assessment in what’s in the best interest going forward from the day of the negotiation onward. And if that means upsetting the status quo, fine.”

Negotiating is typically a quid pro quo. Once a concession is made, it is difficult to revert, although not impossible. Getting something back is harder than agreeing to something never before agreed upon.

As free agents at the union-run camp in Florida prepared for a game against a Japanese team this spring, Clark noted to reporters that labor peace is not the goal: Fair and equitable is.

So how does his definition of fair and equitable happen? Will Clark and the players arm themselves with another Orza? Will players be more willing to strike? Those questions will hover over the next four years, at a time when a sport's unprecedented run of labor peace is ceding ground to unrest. 

On its staff and in its ranks, the union needs believers.

“The [union’s] real success is not Don or Marvin, or any individual or any series of individuals,” Orza said. “It was the cultivation of the concept of the ability to rely upon each other that made the Players Association as strong as it was, and hopefully still is. 

“It is true that all players are in this together. So if you make foreign players more attractive, because you’re putting the screws to them by saying they have to be 25 years old before they can become free agents? Guess what, clubs are going to go out and hire more under-25 foreign players. And guess who’s going to get screwed by that? The players who otherwise wouldn’t have been screwed, had they protected the foreign players. 


“That’s why a very strong guardianship of that principle has to be part of the ethos of the Players Association. It has to be constantly reminding players: Veterans and rookies. Foreigners and Americans. Young and old. Fat and skinny. Glasses and Ted Williams’ eyesight. You’re all in the same boat. You may not like it, you may not even believe it. But I’m telling you, this is how we have to conduct ourselves, and I’m telling you history bears it out. You are all better off when you realize you’re not in different boats. You’re all in the same one.”