MLB, Assumption of Risk, and the Arizona Plan

By now, you’re probably very well acquainted with the currently circulating proposal to reopen baseball in May in Arizona. You’re familiar with the risks it poses, to players and their families. Our own Bill Thompson has deftly covered those risks here and here.

To get it out of the way right off the bat, no, the owners are not taking on any sort of financial risk in any scenario that gets the MLB season going again. They may make less money, but they will still make money and the value of their franchises will continue to grow larger and the owners will be just fine financially. There are those out there who will try and argue that the owners are taking a large financial risk by bringing MLB back in any fashion in 2020. You are wrong, you know you’re wrong, and so does everyone else reading this.

The risk that matters in any scenario that sees MLB playing in 2020 is that of health. There are so many factors to consider when it comes to playing MLB games again. This article isn’t about getting into all of those risks. They have been well documented here and at other outlets. What concerns me more is the way the owners are pushing for MLB to return when they know that they have no skin in the game. There is no health risk to them if MLB comes back, it resides on gameday personnel and gameday personnel alone.

This is all correct, of course, but I’d like to chime in on this issue to show just how ferklempt, to use the appropriate Yiddish word, these negotiations have become. Major League Baseball now has so much power in these negotiations - or, more likely, the MLB Players Association has become so impotent and so incompetent - that they are about to agree to something that would amount to legal malpractice if any lawyer did it in any other negotiation.

Let me explain. Major League Baseball wants players to play baseball in Arizona, and risk exposure to COVID-19 to do so. After all, if you’re playing baseball, you’re not social distancing, and if you’re not social distancing, your risk of contracting the disease increases. We also know that this risk is not negligible: men (like the vast majority of MLB players) are at higher risk for contracting COVID-19; even young, healthy people can become seriously ill as a result of the pandemic; athletes are contracting and dying from the disease; and, perhaps most relevant of all, COVID-19 infection can cause severe, permanent aftereffects even for otherwise healthy people who recover, including lifelong lung damage. Permanent lung damage is a pretty significant problem for a professional athlete, so even if no MLB player dies of coronavirus as a result of the plan, it seems fairly likely that at least some number of players will suffer possibly career-altering trauma from the virus.

MLB wants the players to assume that risk. In other words, from a legal perspective, the league wants players to voluntarily accept on themselves the risks of exposure to coronavirus, and to waive any rights they may have against the league. And what is the league offering in exchange?

Nothing.

In fact, the owners want the players to take a pay cut because of the lack of fans in attendance.

Let me explain why this proposal is legally bizarre. In the law, a contract is formed by what is called “consideration.” In other words, you have to give something of value to get something of value. The players give something of value - their baseball playing services - and receive something of value in return - money. Here, the league wants the players to offer another thing of value: assuming the risk of becoming deathly ill with a contagious viral disease. And what does the league offer in return? A demand for a pay cut as a result of the aforesaid contagious disease.

Now, you might argue that the medical benefits package provided in the Collective Bargaining Agreement covers this. It actually doesn’t; the obligation of the owners to provide health benefits under the CBA is what is called a “preexisting legal duty.” In other words, once the owners agreed to do something, they can’t use that thing as consideration for another demand. Nor can the owners argue that the CBA requires the players to play regardless of COVID-19 because of something called a force majeure (“act of God”) or supervening impossibility. In other words, players can’t be contractually ordered to play baseball in violation of state stay-at-home orders.

This is also very different than assumption of the risk in a consumer context. Yes, you might assume (some of) the risk associated with riding a ferris wheel. But you only assume the risk normally associated with riding ferris wheels. You don’t assume the risk that the ferris wheel was put together by space aliens, or that it’s been coated with coronavirus. If a theme park wants you to assume the risk of those unforeseen conditions, they have to spell them out and give you meaningful bargaining power, including the right to negotiate separate consideration.

Players assume lots of risks associated with playing baseball. They assume the risk of being hit in the head with a whizzing sphere at 95 miles per hour, for example. But players don’t assume the risk of everything that happens on a baseball field, and asking them to do so isn’t just morally wrong, it’s legally dubious. There is no legal basis to argue that contracting a deadly virus is a reasonably foreseeable outcome of playing an ordinary baseball game, and as such the league owes the players additional consideration for demanding that they accept it.

If the league won’t agree to additional consideration for the players in exchange for this risk, the union should simply walk away. The worst the league can do is not play the 2020 season. That would, frankly, suck. But it would also keep its members alive - and the owners have a lot more to lose financially than the players do. Moreover, the league has already shown that it recognizes its hand to be relatively weak by putting service time on the table. It’s time for the union to push that advantage.

But that’s not what is happening here. The MLBPA should be demanding separate consideration if its members are being asked to assume the risk of COVID-19 exposure. That could come in the form of extra money, or added services, or added benefits. It could come in the form of concessions in the next CBA. But the MLBPA is instead talking with the league about pay cuts. It is, frankly, a masterclass in ineffective and incompetent bargaining. The players should expect better. They certainly deserve better.

Sheryl Ring is a litigation attorney and Legal Director at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author’s. This post is intended for informational purposes only and is not intended as legal advice.