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MLB, MLBPA negotiations have turned very, very ugly

Pittsburgh Pirates v New York Mets

NEW YORK, NY - JUNE 16: Commissioner of Baseball Robert D. Manfred Jr. speaks at a press conference on youth initiatives hosted by Major League Baseball and the Major League Baseball Players Association at Citi Field on June 16, 2016 in the Queens borough of New York City. (Photo by Jim McIsaac/Getty Images)

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Yesterday Major League Baseball and its owners made their latest offer to the players.

Given that the number of games and percentage of pay the players would receive in each offer changes, the value of each proposal can be complicated to get one’s head around. As a shorthand, though, it can be looked at this way:

  • Major League Baseball’s previous proposal guaranteed that players would earn 23.4% of their 2020 salaries to play a season with 46% of the usually-scheduled games, while providing them a chance to get 35.2% of their 2020 salaries if everything breaks right and the playoffs are played in their entirety;
  • The players counterproposal had them receiving 55% of their 2020 pay for 55% of a season in terms of games scheduled and would give the owners expanded playoffs for two years;
  • MLB’s latest proposal would give players 31.1% of salaries for a season that is 44% of the usual 162-game schedule with a chance to earn 35.5% if playoffs are played

The latest offer, once again, barely moves in the players’ direction. It’s at best a 7.7% move while demanding that the players move 20% in the owners’ direction. It likewise does not acknowledge that the players’ earned the right to receive prorated pay in the March Agreement between the union and the league, and asks them to play more games than that for which they will be paid in percentage terms. It is thus being characterized by many as yet another bad faith offer from the league.

More worrisome than the terms of the offer, however, is the tone the negotiations. A tone we now know of due to an article written yesterday afternoon by Evan Drellich and Ken Rosenthal of the The Athletic, who obtained a copy of the letter from the league to the union which accompanied the offer.

The letter, from MLB’s chief negotiator Dan Halem, takes on a particularly nasty tone. In it Halem accuses the union of negotiating in bad faith, claims that the players’ assertion that they are entitled to prorated salaries is untrue, and even implies that the players are lucky to be in the position to receive any pay at all (e.g. the $170 million in salaries MLB advanced to the players in March) in light of the fact that Commissioner Manfred had the authority to suspend all contracts once President Trump declared a national emergency on March 13. Indeed, Halem seems to imply that, it it were solely up to the league, perhaps it’d be better to not play at all:

Halem, however, writes the discussions leading to the March agreement between the parties that the league made it “crystal clear” to the union that the clubs would not be forced to resume play without fans because it would not be economically feasible. He adds the agreement awarded the players “hundreds of millions of dollars’ worth of benefits” in service time and salary advances even though the league could have chosen not to negotiate, citing the national emergency.

Does that sound to you like MLB is using a deadly pandemic as a negotiating tool? Because to me that sounds an awful lot like MLB is using a deadly pandemic as a negotiating tool.

Halem likewise mischaracterizes the position the union’s chief negotiator, Bruce Meyer, took in earlier communications. Halem is angry that Meyer, according to Halem anyway, said that the league “owes” it to players to play as many games as possible this season. The Athletic has a copy of the letter Halem is referring to, however, and Meyer never said that. Rather, he said “the league’s cynical tactic of depriving America of baseball games in furtherance of their demand for unwarranted salary concessions is short-sighted and troubling.” It’s a very different sentiment. To Halem, it’s a claim of entitlement. The players, however, simply seem to be asserting that more baseball is better. Which it is.

In response to Halem’s letter, the union provided The Athletic with a statement. The response itself strongly suggests that Halem is simply mischaracterizing past agreements and communications in his letter:

Mr. Halem’s self-serving letter is filled with inaccuracies and incomplete facts. We will respond to that and the league’s latest proposal in short order. It should not be forgotten however that even MLB admits that our March Agreement does not require players to agree to further pay cuts. Indeed, as Mr. Halem agreed in a May 18 letter to Tony Clark: “The Association is free to take the position that players are unwilling to accept further reductions.” Pat Houlihan, MLB legal counsel, similarly acknowledged in his May 22 letter to the Players Association. “We agree with the Association that, under the Agreement, players are not required to accept less than their full prorated salary.’”

One could -- and many will -- call this “both sides getting nasty” here, but if the union’s statement is true, and (a) there are two letters in which MLB admits that the players are entitled to prorated pay; but (b) Halem and the league continue to insist otherwise in their offers, it’s the very definition of bad faith on the part of Major League Baseball.

Here’s the question: if Halem admitted on May 18 and Pat Houlihan admitted on May 22 that the the players are entitled to prorated pay, why is Halem insisting otherwise now and why are the league’s offers still for less than prorated pay?

Based on my legal background and my experience in exchanging nasty letters with attorneys in the course of contentious negotiations, I can think of two reasons. Neither of them are good.

The first possibility: Halem is covering his butt and is trying to keep the 30 MLB owners from getting mad at him and his boss, Rob Manfred.

When news of the March 26 agreement first came out, there was a lot of discussion about what it required. There were conflicting media reports and assertions from people who knew about what was still subject to negotiation and what was not. It strikes me as quite possible that the owners believed that prorated pay was not guaranteed and that the union would be forced to back down from that. Indeed, Jeff Wilpon told Andrew Cuomo just that back in April. The only reason they would believe that is if the men who negotiated the terms -- Manfred and Halem -- gave them that impression. Yet, if they gave the owners that impression in March or April, why are they now admitting otherwise in May letters to the MLBPA?

My guess is that it’s starting to dawn on some of the owners -- particularly the ones who would be hit hardest financially if they had to pay prorated salaries -- that Manfred and Halem got them a bad deal in March. Maybe they’re asking Manfred and Halem why they aren’t able to make less-than-prorated pay happen. Maybe they don’t even know that Halem and Houlihan admitted in previous letters that they know the players do not have to negotiate down from prorated salaries. If any of that is the case, Halem’s over-the-top bluster makes a great deal of sense. It’s him pounding the table, as it were, in order to make his client think he’s acting tough, to make the other side look like bad faith actors, and to keep his client from realizing he’s not holding as many cards as he thinks. If that’s the case, Halem might not even have the permission to make a fair deal, and he’s now trying to cover up for all of that with angry words. It happens in negotiations all the time. I’ve seen it happen. It looks exactly like this.

The second possibility: The owners and MLB brass have simply decided that they either want as short of a season as they can get or, possibly, would prefer to play no season at all, and they’re trying to lay the groundwork to make the players into the bad guys for it in the mind of the public. They’ll trash the players as bad faith actors and ingrates and hope that the press and the public runs with that narrative so that when they either (a) say the season will only be 48 games long; or (b) say that, actually, we can’t have a season, they don’t seem like the bad guys who preferred less or no baseball to something approaching a season of reasonable length.

Neither of those are good, but either way, this is ugly, folks. It’s important to understand, however, that it’s ugliness coming almost completely from Major League Baseball. The league seems, quite clearly, to be taking an aggressive and even disingenuous stance while the players are simply asserting their position in negotiations.

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