By Dick Barnes
Dick Barnes is a retired lawyer and a former sportswriter and investigative reporter for The Associated Press.
Baseball could use some help if it intends to have any sort of meaningful partial season in 2020.
The health safety issues generated by the COVID-19 shutdown that began March 12 are, to some extent, under the control of state and local authorities. The parties have already had much discussion of these, and there seems no reason they can’t be finally resolved once a spring training start date is determined.
The financial issues are the hang-up: compensation for the players, and loss of revenue for the owners if games must be played with no fans in the stands. The dollars are measurable, and like any other haggling over money, can be resolved somewhere between the extremes.
But Major League Baseball (MLB) and the Major League Baseball Players Association (MLBPA) have each postured themselves into a showdown position of back-and-forth offers and rejections. Whichever side breaks the ice by yielding any significant financial ground to the other will look weak, with implications for both the 2020 season and the Collective Bargaining Agreement negotiations following the 2021 season. Plenty is being written about this stalemate. See, for example, Jeff Passan’s ESPN article of June 5.[i]
These folks need third-party help, and quickly, if spring training 2.0 is to start soon and begin the countdown to a meaningful partial season.
The parties already are accustomed to one form of third-party help: arbitration. It is used to settle some player contract salary disputes that the player and his team have been unable to settle through negotiation. In the form of arbitration used by MLB and MLBPA, the arbitrator hears the arguments and reviews the facts from both sides. Then the arbitrator must choose one side’s salary number or the other’s. No splitting the difference. That forces each side to present a sufficiently defensible number rather than an extreme. But such an all-or-nothing approach isn’t the best option now. In salary arbitration, there is ultimately one number at issue. In the current dispute, the issues involve many numbers and are complex.
But there’s another form of third-party help: mediation. There is a world of difference between arbitration and mediation.
In mediation, the third party doesn’t make the decision. The mediator learns the facts from each side and talks privately with each to try to learn where its “give” might exist and what is its most important must-have. The mediator then tries to frame a solution that could work for both sides. In the back-and-forth, the mediator can throw out suggestions as their own. The process enables each side to avoid being seen as the first to blink. It facilitates what are essentially simultaneous steps toward a solution.
The U.S. Government provides mediators through the Federal Mediation and Conciliation Service (FMCS)[ii]. Under the law, the FMCS “may proffer its services in any labor dispute in any industry affecting commerce, either upon its own motion or upon the request of one or more of the parties to the dispute, whenever in its judgment such dispute threatens to cause a substantial interruption of commerce.”[iii] Major League Baseball clearly substantially affects commerce, so either side, or both, could request a mediator. Private organizations also provide mediators upon request.[iv]
It’s time for one side or the other to ask for help.
[i] https://www.espn.com/mlb/story/_/id/29269242/inside-mlb-financials-fight-numbers-solve-it. [ii] https://www.fmcs.gov/. [iii] 29 U.S.C. Sec. 179(b). [iv] See https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/mediation/.