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The Kris Bryant ruling shows MLB’s “impartial” arbitration is a farce

The MLBPA should fire arbitrator Mark Irvings for refusing to require MLB teams to act in good faith.

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MLB: St. Louis Cardinals at Chicago Cubs Jon Durr-USA TODAY Sports

Over four long years after it was filed, the grievance Kris Bryant filed late in 2015 regarding the Chicago Cubs’ manipulation of his service time has finally been decided. Per ESPN’s Jeff Passan

Chicago Cubs third baseman Kris Bryant lost his grievance in which he sought an extra year of service time, ensuring he won’t become a free agent until after the 2021 season, sources familiar with the ruling told ESPN.

Major League Baseball arbitrator Mark Irvings’ ruling in favor of the team was long expected, sources said, and it definitively locks in Bryant’s value as Chicago considers trading him. With two seasons of team control, the Cubs can seek a far greater return than they could have had Bryant won and accelerated his free agency.

Mark Irvings is a labor economist and lawyer from Boston, hired by MLB to succeed the fired Fredric Horowitz a couple of years ago. He specializes in employee dispute resolution; you can read his biography on his website here. Irvings, however, has a history of tending to side with MLB over players, most notably in the case of Carter Stewart last year.

In most instances, Irvings’ decisions have been affirmed by courts of review. But it is worth noting that Irvings has been occasionally criticized by courts for rulings which depart from the plain language of the contracts he’s been called upon to interpret. In a case called Dunham v. Holland, the United States District Court for the District of Columbia set aside a significant portion of Irvings’ arbitration ruling, finding that

Irvings’s application of [the contract] may well have been mistaken. . . .Irvings again departed from the literal language of the contract. This time, however, his decision does not draw its essence from the contract, and it cannot be explained except as an expression of non-contractual notions of industrial justice.

Frankly, Irvings appears to have done the same thing with Bryant, because there’s no other way he could have reached such a bafflingly wrong conclusion.

I’ve written before about service time manipulation and the various legal arguments against it. Section 205 of the Restatement (Second) of Contracts reads: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” This section of the Restatement applies to the Collective Bargaining Agreement, because a CBA is a contract. The comments to Section 205 include this definition of the good faith covenant:

“Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving ‘bad faith’ because they violate community standards of decency, fairness or reasonableness.”

Service time manipulation probably violates the justified expectations doctrine, as I wrote a couple of years ago:

It seems to me that a viable argument can be made that it is unfair to postpone a player’s entry into the union solely for a team’s pecuniary gain. Article II of the CBA states that “[t]he Clubs recognize the [MLBPA] as the sole and exclusive collective bargaining agent for all Major League Players, and individuals who may become Major League Players during the term of this Agreement, with regard to all terms and conditions of employment” (emphasis mine). I think the MLBPA could argue, based on Article II, that its justified expectations are that MLB won’t attempt to circumvent players’ pecuniary gain by keeping them out of the union, because future major leaguers were an anticipated part of the CBA.

There’s also the covenant of good faith and fair dealing, and the fact that the team manipulating the player’s service time is often the cause of whatever purported deficiency (nutrition, lackluster defense, etc.) is being used to justify that manipulation.

If [Vladimir] Guerrero [Jr.] were interested in challenging the practice of service-time manipulation, this language represents one means by which he could do it. His pitch to a court would go something like this: the Blue Jays are the proximate cause of the nutrition problem they are saying Vlad Jr. has. In other words, his current nutritional status is a reasonably foreseeable consequence of the Blue Jays’ own actions.

Think of it like this: let’s say that two people enter into a contract. Person A agrees to pay Person B $100. In exchange, Person B agrees to dig a hole 10 feet deep on Person A’s property. Let’s say, though, that after Person B gets five feet down, Person A starts throwing dirt into the hole, impeding B’s progress. “I don’t have to pay you $100, because you haven’t reached 10 feet down yet!” says Person A. This continues for a few hours, until finally Person B gives up and storms off to read Jeff Sullivan’s latest piece for FanGraphs.

The law doesn’t say that Person A gets to keep that $100. That’s because not only did Person A breach the contract by violating the covenant of good faith and fair dealing, but he also committed, by conduct, something called “anticipatory repudiation.” In other words, Person A, by throwing dirt into the hole, gave notice to Person B that he didn’t intend to keep his side of the bargain.

Let’s look at this in the context of Kris Bryant. In 2014, Bryant spent 68 games and 297 plate appearances at AA, where he hit 22 home runs with an LOL-worthy .355/.458/.702 batting line, for a .504 wOBA and 220 wRC+. Then he was promoted to Triple-A, where he spent 70 games and another 297 plate appearances; there, he hit 21 home runs with a .295/.418/.619 triple-slash, a .439 wOBA, and a 164 wRC+. He walked at a 14.5% clip at both levels. Then Bryant showed up to Spring Training in 2015 and hit nine home runs with a .425 batting average. So why did the Cubs demote him to AAA at the end of the Spring?

But it’s not about business. People are trying to make this about business. There are valid baseball reasons,” Epstein said Friday. “The process of developing a player, taking him from amateur to major league player and every step along the way, that’s a baseball process. Those are baseball decisions. And that’s what we’re doing here.

That “baseball decision” was to keep Bryant in Triple-A for exactly seven games before calling him up. In those seven games, Bryant hit slightly worse than he had at the level in 2014, a .321/.364/.679 triple slash, 161 wRC+, and just a 6.1% walk rate. Yet miraculously, as soon as Bryant could accrue no more than 171 days of service time at the MLB level in 2015 - one short of the 172 necessary to count as a full season - the Cubs deemed those baseball reasons solved and recalled him.

Simply put, it beggars belief that whatever problems Bryant had in 2014 between Double-A and Triple-A were solved in seven games in 2015, especially considering he wasn’t as good in his brief minors stint in 2015 (though still amazing). It beggars belief that any real baseball concerns could have been addressed in the two weeks between when Spring Training ended and his April 15 call-up. Even sportswriters who agreed with the move conceded it was solely for service time considerations. Here’s Sports Illustrated’s Cliff Corcoran the day Bryant was called up:

Calling up Bryant after he spent just one week in the minors would be akin to admitting that service time was the only reason he was demoted, but it is properly motivated by the needs of the 25-man roster. And so what if service time was the impetus for Bryant’s Triple A assignment? The rules are the rules, and the Cubs not only played by them, they also made the same choice that any other team in their position would have made. Trading Bryant’s age-29 season for what proved to be eight games of his rookie season would have been madness bordering on negligence. The Cubs made the right choice sending Bryant to Triple A, and they should make the right choice again, calling him up and putting him in the starting lineup on Friday.

The problem is that the Cubs didn’t play by the rules. Keeping Bryant in the minors after he earned his way to the big leagues is a violation of the covenant of good faith and fair dealing, full stop. Bryant had the justified expectation that as a top prospect who had just demolished the top two levels of the minor leagues and major league spring training, he’d earned a call-up. And even if Bryant needed to “work on his defense” - the classic line given to support service time manipulation - he miraculously fixed it in just seven games at AAA, just in time for the Cubs to conveniently gain an extra year of control? What was fixed in the seventh game that wasn’t ready after six?

Well, maybe the Cubs could argue Bryant wasn’t called up because he was blocked by the incumbent starter at the position. However, the Cubs’ opening day third baseman in 2015 was Mike Olt, who the year before had hit - I’m serious - .160/.248/.356, “good” for a 69 wRC+. Nor was this a small sample size; the Cubs had given him and his 38.8% K% (!!!) 89 games and 258 plate appearances in 2014. In AAA that year - the same level Bryant demolished to the tune of a batting line 60% better than league average - Olt hit just .265/.333/.460, for a 110 wRC+. In short, Olt was average at AAA and pathetic in the big leagues, and the Cubs kept him over Bryant in a year they said they were trying to win.

Based on this evidence, there’s simply no way this could be considered mere coincidence. In the law, there’s a term for verdicts and decisions this clearly wrong: against the manifest weight of the evidence. That’s plainly the case here. A conclusion that the Cubs acted for any reason other than to manipulate Bryant’s service time is against the manifest weight of the evidence. And service time manipulation violates the CBA.

Yes, the text of the decision has not yet been made public, and it’s possible that there is some fact we’re missing that would make Irvings’ decision make sense. But, honestly, I doubt it. The facts just don’t support it. And even if the decision was disciplinary in nature for some unknown offense, allowing teams to gain an extra year of service time for discipline would be a subversion of the CBA nearly unprecedented.

As for the MLBPA, they don’t need to wait for the next CBA to be negotiated to respond to this. The MLBPA, like MLB, has the right to fire an arbitrator at any time without cause; they did so with Fredric Horowitz after he ruled against Charlie Culberson in an injury grievance in 2016. Simply put, if an arbitrator won’t imply good faith to the parties of a contract, that arbitrator shouldn’t have a job. Frankly, the MLBPA should do so again now and terminate Irvings. Irvings’ decision is so laughably wrong that advocates for players have no expectation of impartiality moving forward. It would do a grave disservice to players for the union to willingly participate in a system where no good faith is required from their employer.