What’s the path out of free agent purgatory?

It certainly doesn’t need repeating by this point, but even after Lorenzo Cain’s five-year, $80 million deal with the Brewers, many of this year’s top free agents are on the outside looking in when it comes to the impending 2018 MLB season.

Of the CBSSports Top 50 2017-18 free agents, barely over half have signed (27), and seven of the top nine are still out on the market despite pitchers and catchers reporting in just a few short weeks.

There are many possible reasons for this slow offseason. (And just as many dumb, “guess the hot stove isn’t that HOT” jokes to go with it.)

For a while, the popular opinion was that the potential deals for Shohei Ohtani and Giancarlo Stanton were the dominos that had to fall in order for the hot stove to heat up. Of course, Ohtani signed on December 8, and Stanton was traded a day later, and that did approximately zilch in terms of getting teams going on the free agent market.

The next popular theory became that the superteams in baseball were scaring off any potential mid-level teams from “making their move” with a big free agent signing. Of course, this, in part, ignores the fact that those superteams have to be scared of one another, and a signing like Yu Darvish could be the difference this upcoming October.

The natural counter-argument is that the new luxury tax is also scaring the superteams into a nuclear freeze of sorts, but that’s a lot of scaring, and given the overall money in baseball right now (revenus have been trending in the right direction for a while), this theory may not hold as much water as it would appear on the surface.

Among the other pet theories regarding the slow offseason, there’s the possibility that this offseason is merely a fluke; that teams are saving up for the massive and sexy 2018-19 crop of MLB free agents (Bryce Harper, Clayton Kershaw, Manny Machado, et al.); or the possibility that teams are beginning to think the same way, leading to certain players (Eric Hosmer, J.D. Martinez) being less desirable around the league as a whole.

It is an offshoot of this final theory that appears the most intriguing. In a recent piece for FanGraphs, Craig Edwards made the case for players over 30 still having value. It was the first few paragraphs that set off certain alarms for any fan with a love for the history of the sport, though:

One of the oft-mentioned reasons for the slow free-agent market this winter is that teams are thinking on the same wavelength when it comes to evaluating players. One of the tenets of this theory is that free agents are bad bets because of the aging process. As players age, especially after 30, they get worse on the field, and teams don’t want to get stuck with those decline years.

There is a whole lot of reason in that explanation for the offseason’s lack of activity. There’s also a little bit of faulty logic regarding the aging process, particularly when it comes to this year’s free-agent class and the two biggest names out there, Eric Hosmer and J.D. Martinez.

The first flaw in this argument is based on a misunderstanding of how clubs are compensating players. All teams — and especially the “smart” ones — know and understand that the final year or years of a free-agent contract are unlikely to be valuable in terms of strict wins-per-dollar calculus. It’s generally accepted that those “out” years are going to be mostly dead weight. Players are typically signed to deals for which the total guarantee is equally distributed over the course of a deal. The team isn’t paying an equal amount every year expecting metronomic production over the life of a contract. They expect to receive a surplus of value in the early years and a deficit in latter years. The hope is that the early years compensate for the latter ones.

This theory that teams have finally been burned enough by big contracts to post-arb players to stop offering those paydays rings very possible. Just think about for how long the baseball intelligencia have been harping against the types of deals that will pay Albert Pujols until he is 40, or Miguel Cabrera until he is 41.

It would make sense that MLB front offices are finally shying away from those deals.

Here’s the problem with that, however: if players aren’t getting those lopsided deals in their 30s, they are going to end up vastly underpaid for the entirety of their careers.

The History of the Reserve Clause

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The history of baseball tells the story of the perpetual struggle between players and owners to control players’ labor rights. Beginning in 1870, several years after the creation of a professional league, owners instituted the reserve clause, granting them full control of their players by “reserving” them on an annual basis. Owners could trade or sell player contracts to other teams, eliminating the possibility of players controlling their contracts. The first of a series of serious challenges to this system occurred in 1890 when a number of high-profile players split from the league and created the Brotherhood of Professional Ball Players, the first baseball union.

Accompanying this union was the Players’ League, wherein players ran teams, hoping to offer larger contracts and more freedom to the players. This league lasted one short season before folding due to insufficiency finances, ultimately the players returned to the National League and American Association, and the display sparked a battle that would consume professional baseball for much of the 20th century.

In 1900, led by catcher Charles “Chief” Zimmer, players again attempted to unionize. This union, the Players’ Protective Association, specifically targeted the reserve clause, hiring player-turned-lawyer Harry Taylor as the union’s attorney. Taylor remarked of the expansive power of the reserve clause, asserting that “hitherto a player has been helpless. He has been forced to sign a contract drawn up by his employer, and has had absolutely no voice as to its contents. He has been forced to consent to all sorts of unfair treatment...the League club keeps a string tied to the player, who is prevented from bettering himself with an engagement to some other League club...and if he refuses...he can be driven out of base ball.”

In December, after being met with silence by National League owners, Taylor and Zimmer presented points of discussion to Ban Johnson, who was planning on turning the minor league American Association into a second major league association. Johnson, eager to poach National League players, agreed to a limited reserve clause, offering players the chance to enter free agency after three years of team control. However, no player reached free agency, as the National League and American League reached agreement in 1903, stating neither one would interfere with the contracts of the other, thereby dissolving the union’s agreement with the AL.

Though a third union popped up in 1912, the Fraternity of Professional Baseball Players of America, it was not until the 1922 Supreme Court case Federal Baseball Club v. National League that the reserve clause would again be challenged. This case, ttargeted the reserve clause and the 1890 Sherman Antitrust Act, and was brought against the National League beginning in 1915, when the Federal League folded after one and a half seasons. At the time, many owners accused NL and AL owners of tampering with players, thereby violating the Antitrust Act.

Unfortunately, though unsurprisingly, the Court, headed by Justice Oliver Wendell Holmes, ruled in favor of the National League, asserting that professional baseball in no way constituted interstate commerce, upholding Congress’s 1910 official exemption of professional baseball from the Act. This ruling codified the reserve clause, further legitimizing ownership control of players.

The concerns of the country and the players shifted outward during the ‘30s and ‘40s, leaving the reserve clause battle on the back burner until the 1950s. This decade ushered in a renewed energy on behalf of the players to assert their independence, beginning with introducing the first agent, Frank Scott, to the mix. In response, owners tried to exert more control over players, limiting their salaries and furthering their control over minor league players.

The battle, again, came to a head in the Supreme Court when New York Yankees’ triple-A pitcher, George Toolson, sued the team for refusing to grant him a major league career. The Supreme Court, in the Toolson v. New York Yankees case, upheld the MLB’s antitrust exemption, much to the surprise of many who thought the Warren Court would side with the players’ individual rights. However, rather than rule in favor of the MLB, the Court merely declared the case a legislative issue unfit for resolution via the judiciary. But Congress, naturally, seemed equally unwilling to contemplate overturning the exemption.

This second Supreme Court loss spurred players to create a pseudo-union in 1954, practicing for the formation of an actual union in 1966. This union was headed by Marvin Miller, who won major legislative and judicial victories for United Steelworkers, growing the union to the largest in the country in his 15 years serving as its principal economic advisor.

Miller quickly educated the players on labor rights, leading them in 1968 to the first Collective Bargaining Agreement in professional sports history. The CBA raised salaries by 66 percent –the first salary increase in two decades–and created an arbitration system that wrested some control from the owners. The CBA and Players’ Association were met with trepidation from both sides; those who supported the players believed the MLBPA to be too weak to make a significant enough impact on players’ rights, and their opponents attacked the movement for forcing elitism into baseball.

Though the MLBPA did well in its first two years, it did not touch the reserve clause, believing the challenging of the clause to be beyond its current scope. However, in 1969, Curt Flood changed things. Unsatisfied with being traded from the Cardinals to the Phillies after he had fulfilled his contract with the Cardinals, Flood refused to report to the Phillies, opting out of a $100,000 contract and instead seeking to legally challenge the reserve clause.

Flood wrote on the matter to commissioner Bowie Kuhn, stating:

After twelve years in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.

It is my desire to play baseball in 1970, and I am capable of playing. I have received a contract offer from the Philadelphia club, but I believe I have the right to consider offers from other clubs before making any decision. I, therefore, request that you make known to all Major League clubs my feelings in this matter, and advise them of my availability for the 1970 season.

Kuhn, of course, denied this request, prompting Flood to file a $1 million lawsuit against MLB, prompting the reserve clause to be challenged for the third time. Challenging the clause on the basis of it violating antitrust laws and the 13th Amendment, this case received much media attention, particularly when both Jackie Robinson and Hank Greenberg agreed to testify for Flood. However, during a period of civil unrest and high unemployment in the country, and facing a conservative court that seeked to undo much of the Warren Court’s extension into legislative matters, the Court ruled 5-3 in favor of stare decisis, again asserting the matter was better dealt with in Congress than in the courts. Flood lost, and having forgone two years of his career to challenge the clause and facing a blackball, he retired from baseball.

Though this third attempt, like the previous two, legally failed, it caused massive changes to professional baseball, leading the way for free agency. In 1975, two pitchers, Andy Messersmith and Dave McNally, hired an agent to help them negotiate free agency. Messersmith, who wanted a no-trade clause in his contract extension with the Dodgers, and Dave McNally, who was traded from the Orioles to the Expos on the promise Montreal would sign him to a two-year, $250,000 contract but only received a 1-year, $115,000 one, both hired lawyer Herb Osmond to represent them in negotiations with the MLB. Remembering the public attention Flood garnered, both pitchers took their cases to the court of public opinion, giving interviews that attempted to stir public loyalty to the players. Messersmith gave a number of interviews leading up to the negotiations in which he espoused his love for southern California and his desire to play the entirety of his career with the Dodgers.

Whether it was the residual emotion of the Flood ordeal or the fact that the pitchers’ arguments–since they had both pitched in a season in which they did not have a contract, they were now entitled to free agency–proved logically sound, numerous writers came to their defense, echoing Osmond’s assertion that their treatment was akin to slavery.

This voracious public support provided the leverage necessary to frighten the owners enough to open up negotiations. The teams offered the players salaries far more than each was supposedly worth, but it was too late. The Civil Rights movement had once again entered baseball, and despite Osmond’s public insistence the players were open to negotiation, it was abolish the reserve clause or bust.

Until 1968, the dispute would have been settled by a three-person committee headed by the MLB commissioner, but the MLBPA negotiated to have an independent professional arbitrator assume that role in exchange for dropping the early stages of yet another reserve clause dispute. This negotiation proved monumental in the eventual dissolution of the reserve clause, as the first person to fill the role was Peter Seitz, who granted Catfish Hunter’s free agency in 1974 and then heard Osmond’s cases. As usual, owners, like Braves’ VP Eddie Robinson, who did not win over Hunter, quickly condemned free agency, asserting that without the reserve clause, “baseball would be torn down.” However, fans of all teams enjoyed the thrilling process, finding comfort in the notion that their team could so quickly acquire one player who would reverse their team’s fortunes. Taking all of this into consideration, Seitz ruled in favor of Messersmith and McNally, a move that cost him his job.

Thanks, in part, to the extreme anti-union sentiments of the Reagan administration that seeped into public lexicon, the MLBPA largely stalled out after winning its players free agency, until the 1994 strike. For years, owners colluded in order to limit player salaries after losing the battle over free agency. The expiry of the 1990 CBA on December 31st, 1994, provided players with the opportunity to strike and the assumption that, like other recent strikes, the owners would eventually cave. However, the owners had become so unified with the intent to implement a salary cap that they did not blink until the National Labor Review Board ruled several times in favor of the players, most notably when the owners tried to create teams with replacement independent and minor league players. This move by the owners caused friction between minor leaguers and major leaguers, and those minors leaguers who accepted the owners’ offer were barred from becoming MLBPA members if they reached the majors.

Four years after the beginning of the strike, and 28 years after Curt Flood sued Major League Baseball, the antitrust exemption came to an end. However, the Curt Flood Act has done little to ease labor relations between the MLBPA and the owners, and it does not afford protection to minor leaguers, who are very much still under the 1890 exemption. Though both the Curt Flood Act and the 1994-95 strike were monumental acts, they began rather than ended the process of collectively bargaining fair pay and equal rights.

So where does that leave the current baseball climate?

Peter G. Aiken-USA TODAY Sports

As Jeff Passan noted in his lengthy (and excellent) piece on the subject,

Nobody is certain what comes next. There’s naïve hope that all the stars this winter will get what they want, that the Class of 2019 will reinvigorate the market, that this is but a momentary blip. Far likelier, top officials say, is that leading up to the expiration of the collective-bargaining agreement Dec. 1, 2021, baseball will consider its greatest economic paroxysm since Miller and his counterpart, John Gaherin, struck a deal after the advent of free agency in 1975.

Passan goes on to note that free agency could be opened up earlier, giving teams less control during a player’s early major league career, but another angle that could be taken would be to address the issue of minor league contracts.

The strength of MLBPA leadership has greatly diminished since the retirement of Marvin Miller, particularly as it is currently headed for the first time by a man with no formal legal training. Fearing what another strike would do to baseball, players have long been intent on not rocking the boat, sacrificing the question of minor league rights in order to strengthen their bargaining power. This deficiency in leadership and willingness to sacrifice too much resulted in a current CBA that does the players no favors and has returned bargaining power almost fully to the hands of the owners.

However, there has recently been more of a spotlight placed on the appalling nature of a minor leaguer’s life, from players taking to Twitter to remark on their low salaries, to press about the minor league lawsuit, Miranda v. Selig. This past offseason has also spurred a change in major league discourse, as players have begun to publicly question the MLBPA’s leadership. As Jon Bernhardt of FanRag sports notes, fans have commonly sided with owners on labor issues which inhibits players from assuming perhaps as strong a stance as they otherwise might in the court of public opinion, but it’s clear that the collective bargaining system is broken and the power imbalance between players and owners is, again, increasing.

It seems unlikely there will be another Curt Flood-esque player, or that a player assuming the role would provide the same effectiveness given the hesitancy of the courts to make pro-labor rulings and the need to overhaul the entire system of bargaining. A change in MLBPA leadership is certainly necessary, but it would do little to address the MLBPA’s exclusion of minor leaguers and the long-term ineffectiveness of the strategy of bargaining away international players’ and minor leaguers’ labor rights.

Perhaps fueled by this offseason and the precedent it is setting, enough players will have reached the point by 2021 wherein they will be unwilling to sacrifice more power to the owners, setting up the possibility of a strike. (There are already rumors of tensions building this very offseason.) But to make such a scenario effective, it would seem there needs to be a shift in how the public views the player-owner relationship that would place the labor discussion in relation to universal labor rights. This offseason might well be that shift.

As article after article makes notes of the growing tensions, there is going to be more and more attention paid to the salary demands of players up and down the league. From the stars like Eric Hosmer who remain unsigned, but also down to the minor leaguers who are shipped off down this road of being potentially underpaid (in the market sense) throughout their careers with those miniscule minor league paychecks.

The history of labor in baseball has largely been swayed by public opinion, with the players being able to push back against the owners only when they had fan and writer support. In order to move labor rights forward in perhaps a more permanent fashion, it is imperative over the next three years for players to win over fan support before the two sides do battle in what is shaping up to be an epic collective-bargaining agreement negotiation after the 2021 season.

References and Resources

Snyder, Brad. A Well-Paid Slave: Curt Flood’s Fight for Free Agency in Professional Sports(New York, Viking, 2006).

Los Angeles Times, September 22, 1975, pg. 5.

New York Times, June 20th, 1972, pg. 11.

Waco News-Tribune, October 7, 1966, pg. 7.