Thread by @EugeneFreedman

I just linked to my previous thread on this subject. I probably should also create a long thread in which I analyze the CBA provision related to national emergencies. I had some dialog with a national baseball writer that I will now thread for others to read. 1/x

https://twitter.com/BNightengale/status/1348792926344675328

I took a screenshot of the provision b/c it's too big to fit in one tweet. 2/x

The first thing that’s notable about it, compared to other force majeure provisions, is that it is in the Uniform Players Contract, not the CBA. The UPC is an appendix to the CBA, so it has the same force and effect, but applies to each player individually, not all players 3/x

collectively.

So, when it states, “this contract is subject to…” it is referring to the individual player’s contract, not the CBA as whole. I think that’s important and I will come back to that question. 4/x

The language itself is not unambiguous. That is the first thing an arbitrator would look at to determine what evidence he or she would admit. With unambiguous language, the arbitrator is restricted to the plain meaning, however with ambiguous language, bargaining history 5/x

testimony and documentary evidence is considered as well. I haven’t reviewed how far back this language goes and whether it has been amended over the decades since it was included in the UPC for the first time. 6/x

The other thing to consider is that CBA language is not reviewed in a vacuum. The clause “and subject also to the right of the Commissioner to suspend the operation of this contract during any national emergency during which Major League Baseball is not played” is not 7/x

independent from the remainder of the provision. The first part of the provision refers to “This contract is subject to federal or state legislation, regulations, executive or other official orders or other governmental action…” This was referenced last year pretty 8/x

extensively related to the possibility that non-essential services, including baseball, would be restricted nationally or locally. It is why the Blue Jays were required to play in Buffalo rather than Toronto. I think it would be reasonable to argue that baseball would not 9/x

be played because of the same national emergency that led to the executive order or governmental action restricting its play. MLB may argue that the clauses are independent, and any national emergency is grounds for suspension of the UPC, but I don’t think 10/x

that’s as reasonable a reading of it. Ultimately, such a question comes down to a preponderance of the evidence, meaning, which reading is more likely the meaning intended by the parties. 11/x

The other thing is the location of this force majeure language. Unlike other CBAs it’s not in the body of the CBA. I didn’t read the CBA front to back, but doing a search for emergency did not yield any additional language on this subject. 12/x

I think that’s because the parties did not contemplate suspension of the CBA itself. Further, I think we can extrapolate some from the behavior of the parties last season. In March, they quickly engaged in bargaining to establish a process to restart the season, creating 13/x

and responsibilities. Among them, that agreement vested the Commissioner with significant additional authority related to restarting the season. The Resumption of Play section gave the Commissioner conditional authority over whether or not a season would commence at all. 14/x

The Agreement further provided the Commissioner the right to suspend or cancel games after the commencement of the season if the same conditions were no longer met. That agreement ties-in to this section in the UPC, but not directly. The UPC provision is not referenced. 15/x

It also uses different language than the UPC related to federal, state, city, and local restrictions and additionally references air travel and player, staff, and spectator safety. 16/x

I think last year’s March agreement provides context that the CBA and UPC do not grant unilateral discretion to the Commissioner to suspend the season outside of matters related to governmental orders that would prevent play. 17/x

If such unilateral authority already existed, the March agreement would not have had to include such specific language, it would have just referenced the existing CBA language. That doesn’t entire foreclose the argument, however. 18/x

The parties may have not agreed on Commissioner authority under the UPC/CBA, and that is why they included a no waiver of rights, arguments, and defenses provision. 19/x

One final thought. If conditions are not materially different than last year, MLB would be hard pressed to argue that play cannot take place this year compared to last. 20/x

The national emergency continues, however without greater restrictions in place on air travel or non-essential businesses, MLB could create great liability for itself if it chose to cancel or delay the season (without an agreement) and fail to pay players for the games 21/x

it canceled.

In summary, I think that the UPC does not grant unilateral discretion to the Commissioner to suspend the CBA or season. 22/x

It now appears that the Commissioner's Office agrees with this assessment that he does not have such unilateral discretion. After all, I don't have the bargaining history that they parties themselves do. If there is no credible argument that the language means something else 23/x

it's nothing more than liability to attempt that argument. 24/24

My older thread here explains the liability.

https://twitter.com/EugeneFreedman/status/1345854917576167425