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The Collective Bargaining Agreement doesn’t even enter into the Kris Bryant situation, right?

Kris Bryant

Warning: law stuff.

Despite the general feeling (shared by me) that the MLBPA’s threat of litigation over the Kris Bryant thing doesn’t have any legs, there are some smart people I know who aren’t prepared to dismiss the possibility entirely. One of those smart people is occasional A’s blogger Jason Wojciechowski, who is also a full-time labor lawyer, so he knows this stuff way better than almost all of us.

Last night Wojciechowski, in tweets and in a brief blog post on the topic, responded to the argument that most immediately made in response to the MLBPA’s statement. That argument is, basically, “hey, the union agreed to these rules, so they can’t now sue over them.” Here’s Wojciechowski:

This is incorrect as a matter of contract law, especially collective-bargaining contract law. Not everything that isn’t explicitly banned by the letter of the agreement is something the employer is permitted to do. I don’t know where this misconception came from, but it’s time to end it.

That is true. In all contracts there are various implied covenants requiring the parties to act in good faith and, in the labor law context I presume that there are far more implied with respect to management than in a usual contract given the power discrepancy between the parties and the general purposes of labor law as a means of protecting workers. Woj doesn’t expand on the legal specific here, but his overall point is that “hey, the MLBPA could lose this, but it’s not as simple as everyone is saying it is.” On Twitter he outlined some arguments the union could make in a hearing about the Cubs’ intentions with respect to Bryant, questions they could be asked about what he was working on in the minors to become major league ready, etc.

I am receptive to all of that. And, if and when Woj or any other labor lawyers weigh in on this with some greater edification I’ll gladly update this post and revise my thinking on it. But until then, I’m wondering why we’d even get to the conversation about the Chicago Cubs’ intent or how the idea of “not everything that isn’t specifically banned by the letter of the agreement is something the lawyer is permitted to do” even comes into play.

Why? Because Kris Bryant isn’t even a party to the agreement. The Collective Bargaining Agreement, I mean. Bryant is not on the Cubs’ 40-man roster and never has been. Union membership and thus -- I presume anyway (see below) -- the CBA doesn’t even enter into this. Rather, the conditions of Bryant’s employment are set by the Minor League Uniform Player Contract. That contract specifically gives teams the power to transfer and assign minor league players. Plenary power, it appears. Here is the language from Section XVIII of the Uniform Minor League Contract:

A. Player specifically agrees and understands that this Minor League Uniform Player Contract may be freely assigned by Club, and re-assigned by any assignee Club, to any other Major League Club or Minor League Club.

There are many other provisions which follow regarding transfers, trades, promotions and the like. All of it contains the word “freely” before the relevant verb. To a player under this contract, there is no secondary “but if . . .” There is no new right or benefit that he has in the offing like arbitration or major league free agency that the club can fairly be said to messing with. The only expectation the player has is, eventually, becoming a minor league free agent after six or seven years, and assignments have no bearing on that.

In light of that, I’m not sure how we ever get to Woj’s arguments about what an employer may be allowed to do under a CBA via explicit or implicit prohibitions. The CBA simply doesn’t attach here and what does attach affirmatively allows the club to assign player at their will and whim. Perhaps this is a very different conversation if and when a player is called up, is added to the 40-man roster, but then is sent back down to stop their service time clock. In that case the CBA has been activated with respect to that player and then is turned off, if you will. But here it’s never turned on. Bryant is just as covered by the CBA as the guy working at the warehouse down the street.

One possible caveat, and again, as someone not too familiar with labor law, any help here is appreciated: the union could possibly argue that in doing what they did, the Cubs are preventing a player from joining the union who may have otherwise done so. Some analogy to the trouble that a non-union shop gets into when it actively seeks to prevent their employees from organizing or from gaining the basic requirements of employment which might trigger eligibility for the union. But again, we’re sort of far afield at this point.

In light of all of that I’m looking at the possible outcomes here:

  • An MLBPA lawsuit is rejected before a hearing is even had;
  • An MLBPA lawsuit proceeds, and evidence is heard and the MLBPA has some decent arguments but they eventually lose; and
  • The MLBPA files and wins a lawsuit.

And I still can’t see how we get past the first option and even on to the second. Can someone tell me why I’m wrong?

UPDATE: From commenter DLF9:

Two points:

First, there have been grievances previously on a club’s ability to release or send a player down. See, for example, Juan Bonilla vs. San Diego in the mid 1980s. In that case, the arbitrator applied a ‘good faith’ requirement to the decision to release Bonilla. He held that the team had to show that it was a baseball related decision and not merely one in response to Bonilla having previously won at salary arbitration. Note that the good faith standard was easily met and the arbitrators have gone out of their way to give a lot of discretion to the team in its roster decision. But that means that the grievance is definitionally not frivolous.

Second, the power to grieve is not a power granted to the individual players, but rather the Union itself. The decision to hold a player back for two weeks to retain control has a slight but downward pressure on salaries paid to all players. MLBPA has standing to argue on its own behalf and not just as the representative of an individual not yet on the 40 man roster.

Because of the discretion (properly?) given to the clubs, I think this is not a case where the Union will prevail, but in the litigation context Craig is used to, the argument survives a motion to dismiss for failure to state a claim and may survive a motion for summary judgment.

FWIW, Before coming to my sense and leaving the practice of law, I was a labor lawyer and former part-time labor arbitrator and mediator.