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What MLB’s legal waiver demand is really about

Manfred doesn’t just want the players to suffer financially. He wants them to be willing to risk their lives.

MLB: Winter Meetings Orlando Ramirez-USA TODAY Sports

Rob Manfred continued his descent into the annals of professional sports’ worst commissioners on Sunday. Per Jeff Passan:

The chance that there will be no season increased substantially on Monday, when the commissioner’s office told the players’ association that it will not proceed with a schedule unless the union waives its right to claim that management violated a March agreement between the feuding sides, a source told ESPN, confirming a report by the Los Angeles Times.

That’s eyebrow raising enough, but a nugget in Passan’s article later on also caught my attention (emphasis mine).

Manfred said the MLBPA’s “decision to end good faith negotiations” and the need for an agreement with the union on health and safety protocols “were really negative in terms of our efforts.”

That tracks with what Bill Shaikin wrote on Monday for the Los Angeles Times.

What caught my eye were the three words “Any legal claims” - because that encompasses far more than you might think.

Yes, it’s entirely true that almost all disputes between the league and union must be settled via grievance under labor law preemption, a doctrine we’ve discussed before that basically says that the Collective Bargaining Agreement determines how to resolve disputes rather than a court. However, this waiver is not just about the March 26 agreement, which ownership has never shown any interest in following. Instead, that language shows something deeper.

Back in April, I noted that MLB wanted players to assume the risk of catching COVID whilst taking a paycut. Unlike the NBA, which developed a “bubble league” concept and daily testing, MLB seemed unwilling or unable to draft a safety and testing protocol which insulated players to the extent possible. In fact, Manfred’s comments that “health and safety protocols were a real negative” is quite revealing; the league viewed keeping its players healthy and alive as a burden rather than a duty.

In other words, what MLB wants is not just a waiver of the MLBPA’s (extremely plausible) claim that it violated the March 26 agreement or failed to negotiate in good faith. It also wants players to waive any claims against the league that it failed to keep them safe from the pandemic through substandard safety and testing protocols. Consider: whilst the NBA is doing daily testing, MLB proposed looser testing, banning high-fives, and encouraging social distancing.

On Tuesday, MLB announced that several players and coaches had already tested positive for COVID, ostensibly as a way of bolstering their argument in favor of fewer games ahead of a probable second wave of the pandemic this fall. But in so doing, the league gave away the game. The league’s argument boils down to the fact that players will get the virus anyway, so we should have a shorter season. The players’ proposal for a longer season would simply require the owners to pay for a proper testing regimen. MLB’s insistence on a shorter season is not a substitute for proper medical guidance or necessary tests.

So the bottom line is, once again, MLB’s bottom line.

Ownership wants the MLBPA to waive a grievance for its refusal to adhere to the March 26 agreement. Yes, MLB doesn’t think it would be guaranteed to win a grievance in a system so rigged that arbitrators don’t even require the league and teams to act in good faith. But to take this one step farther, MLB is so unwilling to spend money that it wants players to assume the risk of playing essentially without proper testing. It wants players to waive claims against the league for not keeping them safe because the league doesn’t want to spend the money necessary to keep players safe. The NBA is willing to spend the money. Why not MLB owners?

In April, I wrote that “Rob Manfred is trying to kill baseball, because it’s more profitable for the owners that way.” At this point, it’s absolutely accurate to say that Manfred is willing to increase the risk of killing baseball players, because it’s more profitable for the owners that way. Every employee deserves an employer who will provide them with a safe workplace as a matter of right. Yes, some jobs are inherently dangerous. Yes, some risks must be assumed in order to do the job of baseball player.

But asking players to assume the risk of dying from a pandemic without offering them monetary incentives, or testing, or realistic safety measures, and then demanding players agree not to take legal action against you, is a callback to the robber barons and guilds of the turn of the twentieth century. We abolished those kinds of workplaces for good reason.

No one in this country should be expected to expose themselves needlessly to a deadly disease, no matter what they do for a living.

Sheryl Ring is a litigation attorney 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.