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The history of the MLBPA, part two: a swift decline

The union emerged from the 1994–95 strike victorious, but quickly began to lose control as PED suspicion mounted.

2003 National League Divisional Series - Florida Marlins vs San Francisco Giants October 1, 2003 Photo by Tom Hauck/Getty Images

In part one of this history of the impressive rise and steep decline of the MLB Players Association, I outlined the early years of the union, and described the ways in which it assailed owners for their paternalism and their reluctance to share baseball’s growing profits with the players that created it. For decades, the MLBPA, led by Marvin Miller and Donald Fehr, fought vigorously for greater shares of revenue, better working conditions, and the expansion of negotiating power, racking up a long series of victories along the way.

The snuffing out of the reserve clause, the installation of free agency in its many forms, the various reforms to scheduling, the increasing stakes in All-Star Game and television revenue, and the skyrocketing player salaries were all results of intense negotiation and hardened solidarity among players, the hallmarks of a truly adversarial union. In 1989, quickened by their success in the preceding two decades, the players were even able to win $300 million in damages resulting from the owners’ collusion against free agents. The vitality of the MLBPA provided a stark contrast to the atrophy of unions in other American industries amid the onset of government policy friendly to management.

Following the 1994–1995 strike, however, Fehr and the players retreated into the comfort of ballooning salaries and a slowly rehabilitated reputation for the game, the latter fueled in part by the rampant use of performance enhancing drugs by players. The owners and their newly installed Acting Commissioner Bud Selig (himself the owner of the Milwaukee Brewers), however, appeared emboldened by the work stoppage, despite the legal defeats the owners took in the wake of the strike. The cataclysmic era marked by collusion and the strike might have been over but, just below the veneer of labor-management peace, currents of owner discontent bubbled.


Through the successful strike, the union had, in a herculean effort of solidarity, spurned the owners and achieved a meaningful victory. However, it was not without cost; the strike had engendered a great deal of mistrust among baseball fans who conflated the MLBPA’s righteous grievances with pure greed. When play resumed in the spring of 1995, fan expressions of those toxic feelings were frequent, with players the subject of verbal and other abuse in ballparks across the country. Still, the old Collective Bargaining Agreement remained intact, and Donald Fehr could be somewhat satisfied with the outcome of his and the union’s efforts.

But the fight was not over. As Jon Pessah puts it, Bud Selig conceived of the temporary agreement bringing baseball back as a “truce, not a peace plan.” [1] And Selig had big plans for the coming disputes with the union, starting with the next CBA. In the latter half of the 1990s, the prime issue that owners brought to the negotiating table was that of the luxury tax—a “tax” on spending on player salaries, set at a certain percentage of total salary expenditures. While the owners would be the ones paying the tax, it would benefit them by deterring larger contracts, providing essentially a formalized version of the collusion that they had been penalized for less than a decade earlier.

Small-market owners, including (and primarily pushed by) Selig, also sought a plan for revenue sharing, which would move millions of dollars in revenue from big-market teams to their small-market opponents. Wealthy teams would reign in their spending on players as a result, even as those players’ value ballooned and their salaries grew to many times the size of salaries in the late-’80s. In concert with revenue sharing desires, many teams sought public funding for new stadiums, as the behemoth multisport complexes of the 1960s and 1970s dilapidated. In short, owners in the early ‘90s wanted to use less of their own money to pay their team’s expenditures, and were ready to fight for it. The illusion of competitive imbalance in the age of the rising player salary became a powerful tool for Selig and his small-market ownership cabal.

It took two years from the beginning of the strike for the owners and players to come to terms on the next CBA. The previous agreement had been restored as a result of Judge Sotomayor’s ruling that ended the strike, and the 1995 and 1996 seasons were played with that agreement still in place. Pressure mounted for the owners to accept the terms that the players union brought to the table, as Selig saw revenue sharing as an imperative and did not want to wait much longer without instituting such a plan. Similarly, television networks threatened to withhold the hundreds of millions of dollars guaranteed to the teams if MLB didn’t bring some stability to its labor situation.

In November of 1996, 27 months after the players went on strike and after a spate of false starts and willful misunderstandings, the owners voted in favor of the new CBA, spearheaded in negotiations by Randy Levine. A host of changes came quickly: the minimum salary increased by 25 percent over four years (to $200,000); interleague play began in 1997; and, most importantly, $40 million was transferred from the 12 richest teams to the 14 smallest markets (including a 2.5 percent contribution from players’ salaries), a figure which would increase by 75 percent at the end of the deal. [2]

Four years later, the MLBPA exercised the one-year option to extend the deal through 2001, but the forces of labor and management would once again clash in 2002, almost resulting in another stoppage of play. Selig began to beat the drum of contraction shortly after the 1996 agreement, constantly threatening to fold two teams. He evaded questions on which teams would be subject to contraction while drawing up plans to fold two of Montreal, Minnesota, Tampa Bay, or Florida. Owners insisted that the union’s intransigence prevented greater competitive balance in the league. Devil Rays partner Vince Naimoli laid it bare when he said, “This is the first business I’ve ever been involved in where the union can tell ownership how to spread around its money.” [3] Fehr, of course, had a different take on the luxury tax and revenue sharing: “A luxury tax is a penalty for hiring someone. We think it’s a particularly bad form of it.” [4]

Independent assessors agreed with the union that the game’s revenues were strong and growing stronger, and that the bad faith with which Selig and the owners negotiated in 1996 had fomented the latent distrust between the two parties. The ongoing recession made baseball’s health appear even more stark to fans who increasingly couldn’t afford to make it to major-league games.

But the 2002 agreement was also the first in which Fehr and the union’s power appeared to be slip. They brought few demands of their own to the table, and lurched toward the owners’ desired numbers for revenue sharing and luxury tax thresholds and penalties. Once finalized, the agreement delayed contraction until at least the next CBA, but allowed the league to contract two teams in 2007 without consulting the union. It was a severe misstep by the MLBPA, agreed to in the desire to hastily come to terms as the incumbent deal expired.

Luckily, the scores of jobs that contraction would cut remained, as Selig instead set his sights on the relocation of the Expos. Still, the owners would get increased revenue sharing, which grew to an astounding $250 million by the end of the deal, and limits on a team’s debt were put into place, another indirect way of limiting spending on players. The union played defense, since they had no offensive plan drawn up: they were content to agree to these provisions as long as minimum salaries went up, arbitration continued as-is, and free agency remained intact.

Compared to another centerpiece of the new agreement, however, these changes were peanuts. By 2002, it was apparent that the arc of the foreseeable future in labor-management relations would be dominated by a new issue: performance-enhancing drugs. Not commented upon in the previous CBA, the perceived problem of anabolic steroids in MLB — ratcheted up in the media in the wake of the historic 1998 home run record chase — became the greatest point of contention between the two sides.

Despite turning a blind eye to the mounting use of steroids and other PEDs as early as 1995, Selig saw in testing for substances and “cleaning up the game” an opportunity to endear himself to fans and the media, who saw steroid use as cheating (and an assault on their precious record books). The perceived crisis also gave Selig a chance to rehabilitate his legacy; after the 2002 All-Star Game tie and years of continued futility by the Brewers, the Commissioner wanted to redeem himself in the public eye.

With players like Ken Caminiti and Jose Canseco coming forward about their steroid use, and, in the latter case, making grand claims about others’ use, it was difficult for the union to stave off Selig’s advances. Selig and the owners gamely agreed to some limitations on the burgeoning luxury tax in exchange for provisionary testing for anabolic steroids during the 2003 season. The players agreed to anonymous tests, and if more than five percent of players tested positive, then testing would continue in 2004 with penalties in place.

Unfortunately for the MLBPA, steroid use among players was fiercely divisive, and capable of destroying the solidarity that Fehr had engendered throughout his many years with the union. Many players saw the 2003 program as insufficient, and Fehr had to manage public defiance on several occasions. But testing occurred as planned, and well over five percent of players tested positive, bringing about penalties beginning in 2004.

An even greater crisis for the union came in the form of a federal government subpoena of the test results, threatening the confidentiality that was a requirement for the union to even agree to testing in the first place, and stopping the impending destruction of the tests. [5] As early as 2002, the Senate tried to involve itself in MLB’s steroid issue, with Senator Byron Dorgan of South Dakota quoted as saying, “I think the message to baseball [in the Senate hearing] was that it ought to do mandatory testing... I think the hearing will apply pressure.” [6] Even President Bush, embroiled in the midst of two wars, carved out time in his 2004 State of the Union address to implore baseball to find a resolution on the steroids issue. Fehr began to fight a battle on two fronts, with Congress joining the fight along with Selig and the owners. Suddenly, the union had to confront friction within its ranks, federal investigations, and a sly Selig who had public opinion on his side.

Congressional hearings became the norm for a few years in the mid-2000s, and high-profile members of Congress pushed for answers. Fehr pushed back; in response to John McCain’s prodding, Fehr hotly refused to assent to threats of legislative action, citing players’ Fourth Amendment rights, and accusing Congress of contributing to the problem by deregulating the supplements industry in the 1990s. [7] Despite Selig’s longstanding relationship with President Bush (the two became close while Bush owned the Texas Rangers), the Commissioner and Congress made strange bedfellows, as the union fought futilely for incremental testing and privacy. Congress’s overtures repeatedly focused on unilaterally imposing “Olympic-level” testing and penalties.

By 2006, though, Fehr couldn’t defer harsher penalties any longer. After opening the CBA to changes, the two sides became parties to a Joint Drug Agreement. At the end of the 2006 season, Selig commissioned former senator George Mitchell to lead an investigation of steroid use, and Mitchell’s requests to interview players without their lawyers present stuck in the craw of the union’s leaders. What began relatively benignly as one of three primary issues in the 2002 CBA had inflated to an issue worthy of comment by the president, Congress, and the like.

The 2006 CBA negotiation would come and go relatively quietly, despite the ongoing federal investigations of Barry Bonds and Roger Clemens. The union won some modest gains with regards to free agent compensation, as free agents evaluated as “Type C” would no longer garner draft picks for their former team, and as Type B free agent compensation became a “sandwich” pick between rounds. Revenue sharing and luxury tax conditions remained largely the same, and the Joint Drug Agreement became part of the CBA and subject to collective bargaining. The owners also paid a meager $12 million settlement to the players, bringing the largely overshadowed 2002–2003 collusion accusations to a conclusion. The owners admitted no guilt.

Mitchell’s report came out in 2007, as steroid hysteria reached a fever pitch. Fehr and the union had advised players like Jason Giambi not to cooperate with Mitchell, as the former senator had no legal grounds to force players to comply with his requests. [8] Major newspapers began to leak information regarding grand jury testimonies and the previously anonymous tests, however, and public distrust of players suspected made those players into pariahs. Fehr continued to try, in vain, to get the 2003 test results back from the government, but the latter flatly defied two federal court rulings commanding them to do so. Ultimately, Mitchell and the federal government found a working relationship that allowed them to share information and “suspects,” and Mitchell published names in his report that came from the federal investigation.

It was an unmitigated loss for the union, as it could do little to stave off the rampant suspicion set off by Selig and the Feds. Nonetheless, Fehr made plain his feelings on the matter: “Many players are named. Their reputations have been adversely affected, probably forever, even if it turns out down the road that they should not have been.” It was a prescient comment that rang true not only for the players, but for their union as well. Once the march toward total suspicion began, there were few ways to stop it, and the few missteps in the 2002 CBA proved monumental.

As it was, the 2006 CBA, covering the 2007–2011 seasons, was Fehr’s last negotiation as executive director. He had spent 25 years leading the charge against baseball’s owners, longer than even his mentor, Marvin Miller. Fehr departed with the bad taste of PED witch hunts still in his mouth, and regretted that the final chapter would be defined by Selig and Congress’s joint effort to impose their will. New director Michael Weiner and Director of Player Relations Tony Clark took over negotiations for the subsequent CBA, as steroid suspicion and Congress’s interest finally waned. But the damage was done: steroid testing and its attendant penalties were here to stay, and further, more stringent tests were expected. The union asked for little in return.

Weiner’s first challenge was handling the 2009 New York Times and Sports Illustrated reports on the 2003 tests, which named Alex Rodriguez, Manny Ramirez, David Ortiz, Sammy Sosa, and others. [9] While the latter three players’ reputations either suffered not at all (Ortiz) or had long been decided (Ramirez and Sosa), Rodriguez’s alleged use devolved into a full legal battle between MLB and the Yankees third baseman. The situation became so tangled and bitter than Rodriguez sued the union in 2014 for failing to properly represent him in his appeal of his year-long suspension. [10] The union subsequently voted to expel Rodriguez, but new executive director Tony Clark insisted that Rodriguez remain a member. [11] It was the melodramatic end to the two-decade long saga of steroid suspicion, at least as it pertains to MLB and the union.

PED punishment supplanted the more staid economic and financial issues that were the hallmark of the intense negotiations led by Miller and Fehr. As star players became the subjects of federal investigation and public character assassination, defense of privacy rights under the Fourth Amendment and even the union’s bread and butter issues became toxic. Leadership changes for the union also aided in the shuffling of priorities: Fehr retired in 2009, and his successor, Michael Weiner, died in 2013, of brain cancer, at the age of 51. Fehr and Weiner both struggled to adapt a coherent strategy to confront the problems on baseball’s 21st century frontier, problems that, even as early as 2002, most could see “differ from earlier struggles waged over the definition of free agency, arbitration, minimum salary, and funding of player pensions.” [12] Although the PED controversies abated, other novel problems popped up, and a new director would have to deal with them.

The continuity in leadership of Miller, Fehr, and Weiner—all veteran labour lawyers with extensive experience—ended in 2013, as the players elected Tony Clark, the first executive director to have once been a member. Once again, the focus of the union was shifting. Unlike the churning issue of steroid use uncovered and exploited during the latter years of Fehr’s watch, however, there was no reason for the union to be blindsided by an antagonistic press and federal pressure. Clark and company could shape the union’s future with relatively little PED concern, but it would take vision and solidarity to do so against an owners group coming off major victories.

NOTES

[1] Jon Pessah, The Game: Inside the Secret World of Major League Baseball’s Power Brokers (Little, Brown and Company, New York 2015), 7.

[2] Pessah, The Game, 200–201.

[3] Joe Henderson, “Willing to Share, Owners Need Union,” Tampa Bay Tribune, Feb. 24, 2002.

[4] John Hickey, “Fehr Briefs Players: No Strike Date Set, Union Chief Cites Proposed Luxury Tax as Major Obstacle,” Seattle Post-Intelligencer, July 9, 2002.

[5] Michael S. Schmidt, “Union Official Says He Did Not Tip off Rodriguez,” New York Times, Feb. 9, 2009.

[6] Dick Patrick, “Senate Tells Baseball: Test for Steroids,” Washington Post, June 19, 2002.

[7] Pessah, The Game, 412.

[8] “Selig Asks Giambi to Speak to Steroid Investigator; Slugger Will Confer with MLBPA before Granting Commissioner’s Request,” Toronto Star, June 7, 2007.

[9] Schmidt, “Ortiz and Ramirez Are Said to be on ‘03 Doping List,” New York Times, July 30, 2009.

[10] Paul Hagen, “A-Rod Files Suit in Effort to Overturn Ban,” MLB.com, Jan. 14, 2014.

[11] Bob Nightengale, “Alex Rodriguez, MLBPA on Good Terms After Lawsuit,” USA Today, Feb. 24, 2014.

[12] Joe Strauss, “Labor Issues Spark Generation Gap: Former Players Take Note of Old Struggles,” St. Louis Post-Dispatch, Aug. 27, 2002.