Wednesday, July 15, 2009

More Baseball Collusion in '08? Agents Say "Yes," Selig Says "No," MLBPA Not Speaking

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. 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 specifically how Baseball's neutral arbitrator in the late 1980s, George Nicolau, found Commissioner Bud Selig directly involved in collusion. (see pages 619-20).

With respect to the game's newest collusion allegations, concern of such wrongful behavior first surfaced during the 2007-08 off-season when Barry Bonds's agent Jeff Borris announced that he believed the reason why Barry Bonds did not have a single contract offer for this season 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 game's fans.

(A similar version of this post previously appeared on Sports Law Blog).

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