The return of major pro sports will require agreement by the leagues and their respective players’ associations on many unsettled topics.
How will the regular season and postseason be configured? How much money will players be paid? How many players will be on rosters? Will there be changes to formulas for revenue sharing, salary caps and competitive taxes? How will games and practices incorporate anti-virus measures? Where will games be played? How, and at what frequency, will players (and others) be tested for COVID-19? What types of privacy protections will be implemented? To what extent will players be quarantined and separated from their families? What happens to players who suffer injuries and require hospitalization outside of the so-called bubble?
Those are just a sampling of the crucial and multi-faceted matters at stake.
The good news is that answers can be found.
Aided by their attorneys, leagues and their unions are accustomed to uncovering solutions. They have track records for resolving divisive topics — often, though not always, without resorting to strikes, lockouts or lawsuits. Each side in a labor-management negotiation might need to make concessions and accept policies that aren’t optimal. But that’s the essence of bargaining: it’s a give-and-take.
Some of the leagues and players’ associations appear close to resolution. Last week, the NBPA approved further negotiations with the NBA on a plan to complete the 2019-20 season. Details must be ironed out, but the season would restart on July 31. As currently envisioned, 22 teams would play games at Walt Disney World Resort in Orlando, Fla.
In contrast, MLB and its players’ union remain bitterly opposed over how to begin a 2020 regular season and how many games it would entail. Although the sides swiftly negotiated an agreement in March in contemplation of an abbreviated or canceled season, the proposal omitted key details. Sportico’s Barry Bloom has explained the significant points of division.
Assuming leagues and players’ associations strike deals, those agreements would enjoy immunity from many types of legal scrutiny. This is true of the area of law that most worries leagues: federal antitrust law. It prohibits competing businesses from conspiring to unreasonably curb competition. If two competing gas stations on the same street coordinated their prices, there would be an antitrust problem.
In pro sports, teams are the rival businesses. They routinely agree to restrain how they compete. Salary caps, maximum salaries, entry drafts and free agency restrictions all limit intra-league competition. Leagues insist these measures are essential for every team to have a credible chance. Players, however, often bear the consequences — be it through fewer opportunities to bargain salaries or fewer chances to change teams.
The potential antitrust problem for leagues is extinguished through collective bargaining. When a union agrees to a workplace policy that might otherwise run afoul of antitrust law, the union’s membership must abide by it. That is true even when the policy disproportionately harms certain members.
For instance, in the NBA, superstar players would likely earn much more in a world without maximum salaries or team spending caps. Yet the NBPA has agreed to both, among many trade-offs, in its labor contract with the league.
That doesn’t close the door on potential legal challenges brought by players who object to return-to-play conditions. Players could pursue remedies under other areas of law.
This not an abstract concern, either. Several players have expressed objections about returning under terms they deem unsafe or unfair. Last month, Tampa Bay Rays pitcher Blake Snell warned that, given health and safety risks, he’s “not playing” in 2020 if he’s expected to take a pay cut. Philadelphia Phillies outfielder Bryce Harper agreed with him.
In a recent proposal, the MLBPA demanded protections for high-risk players and their families. Assuming MLB and the MLBPA eventually reach a deal, it’s unclear how the agreement would address players with asthma and other ailments that make them more vulnerable to COVID-19. Similarly, the agreement should anticipate there being players who feel uncomfortable about returning to work during a contagious disease pandemic.
If a player refuses to return and is then suspended without pay or suffers some other employment penalty, there would be a legal playbook for the player to consider.
First, the player could pursue a grievance under collectively bargained procedures. A neutral arbitrator might conclude that the player is entitled to protection. The language and context of the return-to-play agreement would be crucial.
Second, the player could invoke the National Labor Relations Act and file an unfair labor practices (ULP) charge. The charge would be filed with the National Labor Relations Board. The player would assert that union leaders inadequately or unfairly represented higher-risk players while negotiating return-to-play polices. The proposed remedy would likely entail a change in policies to further protect players’ health or their employment status.
Other players have pursued ULP charges. In 2016, Philadelphia Eagles offensive tackle Lane Johnson filed a ULP charge against the NFLPA and NFL, arguing the defendants negotiated a performance-enhancing substances policy that lacked essential protections (he later sued the NFLPA and NFL on similar grounds). Earlier this year, Carolina Panthers offensive tackle Russell Okung filed a ULP charge against the NFLPA and its executive director, DeMaurice Smith. Okung objected to the circumstances of the NFLPA approving a new CBA and asserted that the union unlawfully suppressed his right to dissent.
Neither of those ULP charges yielded their desired outcomes (Okung intends to appeal a recent dismissal). That isn’t surprising since most ULP charges face stiff headwinds. In 2019, only 916 of 18,552 ULP charges led to the issuance of complaints. A complaint is not a final victory: it authorizes a hearing before an administrative law judge and a potential appeal. Pursuing a ULP charge is also not a swift process — it can take months to complete.
Third, the player could file a complaint with the Occupational Safety and Health Administration, better known as OSHA. The complaint would assert that workplace conditions in a ballpark, arena or stadium are unreasonably hazardous due to the risk of contracting COVID-19. OSHA and related state agencies have generally steered clear of regulating athletic contests. Collisions in an NFL game, for instance, are obviously hazardous, but are part of the sport.
However, OSHA has regulated the safety of sports facilities. In a 2018 Arizona Law Review article, University of Michigan professor Adam Finkel and his co-authors noted:
During the construction of the Milwaukee Brewers’ new Major League Baseball stadium in 1999, OSHA responded to several accidents including a crane collapse that killed three men. OSHA issued a total of $539,800 in fines split among three subcontracting firms. Similarly, when the Dallas Cowboys, New York Giants, University of Georgia and Arizona State University football practice domes collapsed, OSHA investigated the incidents.
It should be noted that OSHA has taken a keen interest in safeguarding the workplace from COVID-19. The agency recently published a 32-page document titled, “Guidance on Preparing Workplaces for COVID-19.”
Fourth, and as explained in another Sportico story, a player with an underlying medical condition could seek protections under the Americans with Disabilities Act.
Will any pro athlete buck his or her union on return-to-play? There will be implicit pressure to “go along,” but all it would take is for one player to say “no” and a legal controversy could ensue.
Michael McCann is an attorney, law professor at UNH Franklin Pierce and a sports law reporter for Sportico, Penske Media’s new sports business platform.