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

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.

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More from @EugeneFreedman

26 Jan
First, it's not an impasse, because there's no duty to bargain over things that are already in the CBA.

Second, the Commissioner cannot unilaterally suspend the opening of the season.

The only way MLB is going to get MLBPA to the table to negotiate over a later season start 1/
expanded playoffs, and the other bells and whistles, is if it agrees to something similar to the MLBPA's proposal from 2020 regarding the split of additional playoff TV revenue, maybe also other revenue such as streaming too. I don't say this based on any insider info. 2/
It's based on the status quo labor agreement, what the PA wants in the next round of term negotiations, and how it can leverage now to get what it wants moving forward. It has no incentive to agree to something less now. It only has disincentive. The deal to change things now 3/
Read 7 tweets
25 Jan
There are two paragraphs in this article that are frustrating. The first:
"A typical negotiation includes offers and counter-offers, but the league’s proposal did not lead to further discussion. Only last week did the league learn that the union had rejected its offer," 1/x
"and that the union would not counter it."

The second: Players last season received a combined $25 million in salary per day league-wide, so eliminating 26 days in April would cost them $650 million. But the league probably can make up a chunk of those days with split" 2/x
"doubleheaders, play into mid-October and possibly get to 154 games, at full pay. The players might want other benefits. The postseason would then extend into November, perhaps forcing the league to take a hit in its network television deals. But all of the elements" 3/x
Read 10 tweets
16 Jul 20
Here we are. We have an agreement, the season is moving forward, and @BNightengale is still carrying owners' water and posting their outrageous opinions about how it's all the Union's fault. Let's break it down in a thread.

Jerry Reinsdorf is one of the key architects of 1/
collusion. For those who don't remember, from 1985-87 MLB engaged in a violation of the CBA to prevent free agents from receiving any offers from any team other than their original team. It was a direct violation of the CBA. Andre Dawson had to offer a blank contract to the 2/
Cubs. Tim Raines, who was perhaps the best player in baseball at the time, was not offered a single contract and missed an entire month of play before returning to the Expos. Over three arbitration cases the owners had to pay millions of dollars in damages. Reinsdorf was on 3/
Read 18 tweets
23 Jun 20
Apparently there are a lot of columns declaring a pox on both houses today regarding MLB/MLBPA failing to reach an agreement. What's missing in that superficial analysis is that they DID reach agreement. The reached it nearly 3 months ago. The parties are now agreeing to live
with the agreement they reached, which provides MLBPA represented players with pro rata pay and the Commissioner with the authority to set the schedule after meeting certain criteria and discussing things with the PA. It did not require negotiations.

This outcome is a win-win
Here is a thread explaining why this is a win-win at this point:

But, there's more than that. And, it's an analysis based on the outcome and not the methods of achieving that outcome.
Read 15 tweets
17 Jun 20
This article by @KenDavidoff may have set a new low for both-sidesim. It completely ignores facts and doubles down on a completely and utterly debunked "smoking" published by @Joelsherman1. A short retort 1/
Davidoff: "With Major League Baseball dangling on a branch on the side of a cliff above shark-infested waters, in the wake of Manfred’s announcement Monday that he won’t unilaterally implement a 2020 restart schedule after all"

Wait, what? MLB is reaching out an olive branch
Actually, what has happened is MLB has walked itself back into a corner & needs a way out. MLB has attempted to renegotiate a mutually agreed March agreement. There is no reciprocal duty for the parties to do that, so the PA has said "no" about two dozen times publicly
Read 17 tweets
16 Jun 20
This article is a series of management falsehoods, presenting itself as a path forward. It's scary how a reporter would have missed everything that has gone on over the past few months, but apparently this one has. Let me hit the high notes in a thread 1/
Nightengale: "You don’t need a Twitter account to know the union and players are furious at Manfred. You don’t need to turn on the TV or radio to know that owners are incensed with the union." Why would the owners be incensed with the Union? Because they want to adhere to 2/
the contract they agreed to March 26? We hate that you agreed with us. We don't agree with ourselves anymore, so we are incensed with you. This is classic both-sides garbage. One party wants to break the negotiated agreement. The other party should be furious. 3/
Read 17 tweets

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