Over the last couple of years, Major League Baseball has been under a grand jury investigation for alleged ties to human trafficking. That grand jury investigation was, at last report, still pending; the grand jury was investigating whether MLB and various teams, including the Dodgers, were involved directly in the illegal kidnapping and smuggling of players from Latin America to the United States. These events rocked the baseball world. Then 2020 began with a ruling from an MLB arbitrator clearing the Cubs in Kris Bryant’s service time grievance, ruling, in essence, that teams need not adhere to the covenant of good faith and fair dealing implied in every contract.
The reason I bring this up is a report from Bob Nightengale, in which one of MLB’s attorneys implied that the union was not negotiating in good faith.
In other words, the league under investigation for illegally trafficking human beings into the United States to be MLB players - the same league which does not have to act in good faith with respect to its employees - is now claiming that the MLB Players’ Association is not concerned about player safety and salaries in good faith. On its face, that contention is laughable.
So in that context, we turn to the ongoing dispute over the meaning of “economic feasibility” in the March 26 agreement between MLB and the MLBPA. As you know, the league wants the union to agree that players will risk their lives and play, and take a pay cut to do so. According to the league, this email from league senior vice president of labor relations and deputy general counsel Patrick Houlihan to deputy commissioner Dan Halem, MLB’s lead negotiator, serves as a “smoking gun” that the players agreed to this remarkably dubious proposition.
Let’s start with this: the email is legally irrelevant. Some have argued that it would be excluded under the parol evidence rule, which states that you cannot consider evidence outside of a contract when interpreting the contract. However, as I’ve written before, there’s a reasonable argument that “economic feasibility” is ambiguous, and therefore outside evidence could be considered.
But even if we grant MLB those concessions, it doesn’t matter; in a court of law, this email would be considered inadmissible hearsay - that is, an out-of-court statement offered to prove that MLB’s version of events is accurate. The only exception which possibly would apply here is what is called a “past recollection recorded”; that is, if MLB’s executives had forgotten what occurred at the meeting in question, they could refresh their memories by looking at this email. However, the document itself is considered so untrustworthy that it cannot be considered as evidence in its own right.
So, as a legal matter, I still believe that the March 26 agreement is null and void because there was no meeting of the minds. As I’ve written before, if the union and the league really have a dispute over whether or not players agreed to a pay cut - wages are obviously a material term of a labor contract - there’s a genuine legal question as to whether they ever formed an agreement at all. If one side has the only reasonable interpretation of the contract, that side prevails. Otherwise, there is no agreement at all.
The League’s position, therefore, is that theirs is the only reasonable argument. But really, that’s not remotely true, and certainly not made more so by a self-serving, inadmissible email from one MLB official to another. But this brings us back to the human trafficking investigation, which established that the League has an unfortunately long history of creating documentary timelines to mask its own wrongdoing.
The 67-page proposal sent by the league to the union is far more safety theater than actual protection. Not only will the league be partnering with its PED lab - a lab with a history of errors - but it will be doing so as part of a profit-seeking operation not dedicated to the safety of the players themselves. The players will not have daily tests, but will have temperature screenings, which are ineffective against asymptomatic spreaders. There’s no provision for paying high-risk players who cannot play on medical advice. The cleaning solutions proposed by the league can actually cause lung damage to the players.
And yes, the league’s history and the human trafficking investigation are most certainly relevant here, for a league which views human beings as commodified assets to be smuggled for profit is highly unlikely to shed that view later. That’s what we’re seeing now, in fact: urging players to sacrifice their health and potentially their lives, ostensibly for a noble purpose, takes on a far more sinister pallor when viewed through the lens of the league’s past behavior.
The problem is that we don’t view the league’s actions in this context - and that’s a problem, because, context is for kings. The league’s recent media junket has had entirely the desired effect, which is to further distract from this fundamental truth. Hall of Fame southpaw Tom Glavine recognized as much when he said that “[e]ven if players were 100% justified in what they were complaining about, they’re still going to look bad.”
So let’s be honest: when a league which traffics in human beings for profit argues that those human beings are not acting in good faith when they attempt to control their lives and livelihoods, what the league is actually saying between the lines is that players are allowed only to behave in a manner consistent with the maximization of the profits of ownership. The league considers “good faith” to be only those arguments which recognize the monetization of players as the highest and best goal. That’s deeply, deeply troubling.
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.