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Commentary > SportsBiz
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Bud's worst nightmare: No union
Players could wield greater threat than strike if they drop union and fight owners in court.
August 26, 2002: 1:35 PM EDT
A weekly column by Chris Isidore, CNN/Money Staff Writer

NEW YORK (CNN/Money) - Imagine if the Major League Baseball Players Association not only passed up the chance to bring this season to a halt with the union's sixth strike but decided to disappear from the game altogether.

Sounds like Commissioner Bud Selig's wildest dream come true. In fact, it could be his worst nightmare. And there is a chance, a real chance, it could happen.

The reason is the nation's antitrust laws, which for the first time apply to labor relations in baseball. The sport's longstanding exemption to antitrust laws was stripped away as it related to labor relations after the last strike when Congress passed the Curt Flood Act, named for the player who helped bring about free agency by challenging baseball's reserve clause, which bound players to their franchises for as long as their owners desired.

The Curt Flood Act, named for the player who helped create free agency in sports, could give baseball players the chance to win the battle with owners without a strike this time.  
The Curt Flood Act, named for the player who helped create free agency in sports, could give baseball players the chance to win the battle with owners without a strike this time.

Without that exemption, the owners need the union and a mutually-agreed upon collective bargaining agreement to band together in ways that would limit player salaries. Otherwise, the players could bring lawsuits charging that they are being hurt by anti-competitive actions by the owners, and if they won, would be entitled to three times their proven economic damages.

The fact that the players' association would have to disband for players to pursue the course makes it unattractive to the union, especially since it's risky to count on the outcome of a lawsuit.

"Nobody knows really what that act means until it's been tested with a couple of cases," former player union's executive director Marvin Miller told me this week. "I wouldn't go down that path with much hope."

But others argue that just the threat of decertification and legal challenges to baseball practices might be enough to stop the owners from trying to impose a contract that the players found onerous.

"I don't think baseball could operate with the Curt Flood act in place and without a collective bargaining agreement," said Doug Pappas, a New York antitrust attorney and an official with a baseball enthusiasts' group that studies the business of the game. "The draft (of amateur players) is immediately challengeable. While the owners might be able to have revenue sharing, there's no way they could have a luxury tax."

The "luxury tax" is a key management demand that would penalize teams with large payrolls, thus reducing the money available to sign top players. The owners have also spoken of the need to expand the amateur draft, which gives teams exclusive rights to sign top North American prospects, by making it a worldwide draft in the future.

A decertification and antitrust suit by baseball players would leave owners with no attractive choices.

If they didn't impose a new economic structure, they wouldn't be able to make the changes they argue are crucial for some team's economic survival.

Union chief Don Fehr says the players view a strike as a last resort.  
Union chief Don Fehr says the players view a strike as a last resort.

If they impose a new structure, they risk the possibility of crippling court losses.

And if they instead follow the National Basketball Association strategy of locking out players in an attempt to get agreement on a new contract, they lose the public relations advantage they now have with fans ready to blame players for a strike.

The decertification path has been tried once before -- the National Football League Players Association used it to win free agency in that sport, which never enjoyed the baseball's antitrust exemption. And it is the best alternative if players balk at the idea of a strike during the season, when they have leverage over the owners.

The New York Times reported earlier this season some players were advocating not striking during the season, even if it meant the loss of leverage. Union Executive Director Don Fehr would only say that it will be up to the players whether or not to strike, and that the players see that as a "last resort."

Pappas said that he believes the players could maintain collective action even without the union by all joining the same antitrust lawsuit, and using their licensing fees that now go to the union to fund the case.

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"In order for this to work, you need a situation where even without the union in place, the players will still stick together," he said. "The baseball players could pull it off easier than any other union. They're sufficiently organized. They have sophisticated legal advice."

And while Pappas agrees there are risks to not striking and counting on only legal challenges, he said there are risks to the union and players from going on strike as well.

Besides the loss of paychecks with an annual average of $2.4 million that would be the envy of some CEOs, let alone other union members, fans' loyalty and future revenue could take hits. Fehr and his members know that baseball's short-term and long-term revenues are important to the players.

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"If revenues continue to go up, you can expect salaries to go up," Fehr said at a recent press conference. "If revenues flatten, or revenues fall, salaries will flatten or salaries will fall."

Beyond that, Pappas points out that if teams are forced to file for bankruptcy court protections, as the owners say is likely if there's another strike, then players due deferred compensation become unsecured creditors who could lose money owed to them. And teams could even go to a bankruptcy judge and try to void expensive player contracts.

If the union decided to decertify and let the owners set up the luxury taxes and other procedures they want, the players signing contracts this offseason would likely get less than they would under the status quo. But they would have the upside potential of triple economic damages if the suit is successful.

Treble damages is how the union won $280 million in damages from baseball when owners were found guilty of colluding together not to sign free agents in the mid-1980's. That affected only a limited number of players at the time. Miller agreed that record $280 million award could seem like chump change compared with the size of an award if antitrust suit affecting all players was successful.

Major League Baseball's own financial figures show 2001 player salaries totaled $2.1 billion. If the owners' new procedures saved them only 10 percent of that money, and players won a antitrust suit challenging those procedures, the damages award would be more than $600 million, or more than baseball's own questionable claimed losses in 2001.  Top of page




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Most stock quote data provided by BATS. Market indices are shown in real time, except for the DJIA, which is delayed by two minutes. All times are ET. Disclaimer. Morningstar: © 2018 Morningstar, Inc. All Rights Reserved. Factset: FactSet Research Systems Inc. 2018. All rights reserved. Chicago Mercantile Association: Certain market data is the property of Chicago Mercantile Exchange Inc. and its licensors. All rights reserved. Dow Jones: The Dow Jones branded indices are proprietary to and are calculated, distributed and marketed by DJI Opco, a subsidiary of S&P Dow Jones Indices LLC and have been licensed for use to S&P Opco, LLC and CNN. Standard & Poor's and S&P are registered trademarks of Standard & Poor's Financial Services LLC and Dow Jones is a registered trademark of Dow Jones Trademark Holdings LLC. All content of the Dow Jones branded indices © S&P Dow Jones Indices LLC 2018 and/or its affiliates.