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BtBS Exclusive: Eugene Freedman, baseball scribe and labor lawyer, on MLB and COVID-19

I asked an expert about the ongoing battle between MLB and the MLBPA about playing the 2020 season

If you’ve read about the inner workings of baseball’s labor machinations, you’ve probably heard of Eugene Freedman. Freedman has written about the legal side of baseball for the Hardball Times, Baseball Prospectus, and the Baseball Think Factory, and has long been one of my favorite writers; before I got started writing about the legal side of baseball, Freedman was doing it for the biggest sabermetric outlets in the game with aplomb. Freedman also happens to be among the top labor lawyers in the country, currently serving as Special Counsel to the President of the National Air Traffic Controllers’ Association, where he previously was deputy general counsel.

In other words, Freedman knows baseball, and he knows collective bargaining — which means that few have better insight into the current labyrinth that is the negotiations between MLB and the MLBPA for a potential 2020 season. He was also kind enough to sit down with me so that I could share his insights with all of you.

We began with the March 26 agreement - the one which the union believes states that player salaries are prorated on a per-game basis, and which the league says leaves the door open for further negotiation on the basis of “economic feasibility.” Freedman pointed out that the Collective Bargaining Agreement also was relevant to this discussion. “I would say this: when there was some initial discussion of postponing the season or starting the season later, I suggested that there may actually be something in the CBA that covers the issue,” Freedman said. “I had read the CBA and thought it implied if not directly provided for prorated salary for a partial season. It struck me in reviewing that that prorated player salaries was the most likely outcome and perhaps something that had been contemplated by the parties.” (He’s right, I wrote about that language, which is also in the uniform player contract, here.)

Freedman also notes that “economic feasibility” should be read in light of that language. “It is also reinforces the part of the CBA that provides the owners [which Freedman calls “management”, using the industry parlance] with the opportunity to set the schedule. It seemed to me that the whole argument to me was about whether or not it was economically feasible to not set a schedule at all, and not actually play games.”

Freedman correctly notes, however, that this dispute isn’t the primary impediment to playing games in 2020. “I would say that health and safety has to be paramount - the number one issue,” he said, noting that unlike health care workers, MLB players haven’t assumed the risk of contracting COVID as part of their job, as I wrote last month. “Major Leaguers, well compensated though they are, they have not signed up to put their health at risk, other then the risk of injury inherent to their job,” Freedman explained. Some of the proposed health measures, like temperature checks, are also dubious; “athletes running around in the sun will have higher than normal body temperatures.”

That’s not to say that ensuring player safety isn’t possible. “Obviously there are things that can be done: sanitation, [personal protective equipment],” Freedman said. “But of course, that brings in risk to the non-player employees who are tasked with cleaning up after the players.” There’s also the question of how you can social distance effectively during a baseball game. “Umpires, catchers, and batters are all within a six-foot area,” Freedman pointed out. “They’re not going to wear masks over their noses and mouths. They’re violating [Centers for Disease Control (“CDC”)] recommendations right there.”

All of that, and we haven’t even discussed in-game action yet. “A lot of umpires put their hands on catcher’s back. That’s part of the game, within accepted practice. Even tagging another player - sometimes you’re tagging another player with your non-glove hand, and potentially there’s skin-to-skin contact. There’s just so many little things. I don’t know that you can protect players right there. If the players are agreeing to that, they’re accepting additional risk.”

It’s for these reasons that asking players to accept additional risk and accept a meaningful pay cut has been met with such consternation. But as Freedman pointed out, what the league is asking for goes well beyond even a pay cut. “[The League is proposing] changes to terms and conditions of employment from past practice and behavior that were previously accepted,” Freedman said, pointing to spitting and chewing gum and seeds as an example. What assurances do the players have that these rule changes won’t be permanent - especially in cases, such as tobacco, where the players have previously rejected the proposals? “MLB wants to do [revenue sharing] through shock doctrine, basically, but also wants to do work rules through shock doctrine. I’d be very wary of allowing or agreeing to permanent changes where the league has been trying to make changes for a long time and the union has been rejecting that.”

Perhaps the most complex aspect of this issue relates to players with underlying health issues, for whom playing might pose significant dangers to their health - such as Rockies outfielder David Dahl, who has a weakened immune system due to having no spleen. “With service time being a key factor in discussions, you want to make sure that players are not choosing between their own personal health and their income, without losing benefits or service time,” Freedman said. “There should be some opportunity for players to self-declare to the injured list because they are unable to play under these circumstances.”

Freedman suggested a status similar to what the union contracts he has negotiated call “incapacitated for duty,” and noted that players like Dahl or southpaw reliever Jake Diekman, who has ulcerative colitis, might be covered by the Americans with Disabilities Act. “You also want to consider whether they are going to be paid during this time period because they are technically disabled – normally people who have incapacitating illnesses are placed on the 60-day IL and paid during that time period.”

But Freedman also noted there was another complicating factor as well. “What about those players with spouses or children who are immunocompromised or who have respiratory illnesses? How do you deal with them? Are you going to allow them to self-declare also?” The recent CARES Act passed by Congress is implicated as well - MLB may be required to provide players with sick leave to care for family members who contract COVID. “So you have a lot of other laws [like the CARES Act and ADA] that ride on top of the collective bargaining relationship,” Freedman explained. You can’t waive them through collective bargaining; they’re a floor, not a ceiling.”

Next time, we’ll talk with Freedman about the minor leagues - and how they could, or could not, be organized.

Special thanks to Eugene Freedman for his time and expertise.

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.