With MLB canceling the first two series of the 2022 regular season, the lockout has entered a new and more contentious stage. Sportico’s legal expert answers key questions on how the lockout could wind up in court.
- Can MLBPA or players sue MLB over the lockout?
No, neither the players association nor individual players can credibly sue MLB—at least not this point.
MLBPA and MLB have a union-management relationship which, under labor law, requires them to resolve disputes through negotiation and grievance (arbitration) procedures. If MLBPA sued MLB, or vice versa, the case would likely be dismissed on grounds of preemption. The court would say that the two sides have agreed to address wages, hours and other working conditions through a bargaining relationship and must resolve differences through that process. Unless there is an impasse (more on that below), both sides have a continued duty to negotiate. In other words, the claims in the lawsuit would be preempted by the labor relationship.
The same hurdle would arise if an individual player, or a group of players, sued MLB. The players are members of a union, which is their exclusive bargaining representative. Players can’t sue their employers over CBA-related matters.
- What would need to change for players to sue MLB?
The players would need to legally separate themselves from their union.
Under labor law, MLBPA could disclaim interest (decertify) in representing MLB players. The players would then become individual employees of their teams.
The purpose of that maneuver would be to enable players to sue MLB and teams. Relying on federal antitrust law, they would challenge the lockout and workplace rules that restrain competition. The players would argue restrictions on free agency, the competitive balance tax and numerous other workplace policies are blatant restraints on how teams, in the absence of those policies, would compensate players. The players would be going on offense. Under antitrust law, damages would be trebled (automatically multiplied by three). NFL and NBA players adopted this strategy in response to their lockouts in 2011, without much success.
- Aren’t you forgetting MLB has an antitrust exemption?
No, I’m not. MLB’s antitrust exemption is an often-misunderstood point of law. MLB’s antitrust exemption has been narrowed considerably.
Per the Curt Flood Act of 1998, the exemption no longer applies to labor matters involving MLB players. The exemption is not at issue with the lockout or potential litigation stemming from it.
MLB’s antitrust exemption remains applicable to issues related to minor league baseball, the amateur draft, franchise relocation, ownership sales, umpire-league matters and the licensing of intellectual property rights.
- Would additional negotiations or mediation solve the crisis?
MLBPA has signaled that it intends to continue to negotiate with MLB. While MLBPA and MLB might pause from the intense negotiations over the last several days, they have a shared incentive to resume talks soon–or risk further alienating baseball fans.
The two sides could also turn to mediation. Last month MLB proposed, and MLBPA rejected, a plan for the Federal Mediation and Conciliation Service (FMCS) to hear each side’s arguments and propose a solution. FMCS is a neutral, government third party.
Mediation can’t hurt, especially since it imports a neutral and skilled person to oversee contentious discussions. How much it would help, however, would depend on whether MLB and MLBPA find the mediator’s recommendation beneficial. The recommendation is only binding if both sides accept it.
- If continued talks falter, what would each side do?
MLBPA would have a couple of options. As mentioned above, the union could disclaim interest, which would pave the way for antitrust litigation.
The union could also file an unfair labor practice (ULP) charge with the National Labor Relations Board (NLRB), arguing that MLB is not bargaining in good faith. That would kick off a multi-layered, and multi-month, process whereby NLRB agents would investigate the charge, issue a recommendation to a regional director, who would in turn issue a decision that could be reviewed by the NLRB in Washington, D.C. If the NLRB agrees with MLPBA, it could issue a complaint against MLB and seek an injunction with a federal judge. There are other potential complicating steps along the way, too.
MLB, meanwhile, could declare an impasse, whereby it concludes that it has made its best, final offer and the union can take it or leave it. MLB could then attempt to impose new labor terms on players, so long as those terms were contemplated within the (failed) negotiations. MLBPA would surely challenge that move with the NLRB through a ULP charge, arguing they remain engaged in good-faith bargaining.
MLB could also simply lift the lockout and the terms of an expired CBA would remain in effect. The two sides could then continue to bargain as baseball returns. U.S. Soccer and USMNT have continued to bargain for a new CBA while their most recent CBA expired four years ago. MLB is unlikely to opt for this strategy, however, since it would lose leverage and invite criticism over the wisdom of locking out players in the first place.
- How would any of the above options impact fans?
For fans, none of those measures would be a positive development. Each would beget a complex and time-consuming legal process, led by attorneys who are in the business of winning legal disputes, not trying to get baseball back. The 2022 season would be in real danger of cancellation.
This scenario has played out before. The 1994-95 strike lasted 232 days and led to the cancellation of 938 games, including the 1994 World Series. Along the way, MLB declared an impasse and imposed new labor terms. Players petitioned the NLRB. Eventually, the NLRB sided with the players and Judge Sonia Sotomayor, now a Supreme Court justice, sided with the NLRB, ordering MLB back to the bargaining table. But the popularity of the game was severely damaged. Many fans lost interest in baseball, and some didn’t come back.
It’s not just fans who have a stake, either. Ballpark workers, and those who work at nearby bars and restaurants that generate business through MLB games, are among the many parties who would lose out.
- Could MLB players go on strike?
Yes, MLB players could go on strike, but there is no reason to believe that would happen anytime soon.
First, they’re already locked out and want to return to work.
Second, if MLB lifts the lockout and both sides agree to use the expired CBA, there is no reason to believe MLB players would suddenly strike. Such a move would have disastrous public relations implications. It would undermine repeated statements by players and MLBPA executives that they want to come back to work.
- Is MLB to blame for the labor dispute?
In a sense, yes—MLB locked out the players and then, as reported by media, seemed unwilling to meaningfully budge on demands until MLB’s self-imposed deadline for a deal neared.
But a lockout, while unpopular in this context, is a lawful means by which management refuses to employ the workers until the workers’ union accepts certain concessions. A lockout is a “weapon” for management in the same way a strike is a “weapon” for unions. MLB and MLBPA have a long history of using lockouts and strikes, respectively.
Whether MLB’s demands are just or reasonable is a matter of viewpoint. Billionaire owners seek a greater share of the wealth generated through the sport, and players, many of whom are millionaires, want what they view as a fair share.
Unfortunately, ballpark workers and others similarly situated have the most to lose, and yet they have no seat at the bargaining table.
