I can't retweet Jon Heyman's tweets related to his incredulity that the MLBPA did not make a counter offer, but I can explain why, under labor law, they didn't. (He blocked me) That said, a lack of education on a subject should never preclude taking a position.

The parties 1/
have an agreement. It's called the CBA. It lays out all of the responsibilities of the parties, including the reporting dates for spring training, the start of the season, number of games, salary payment process, league rules, players' playoff share, and all other wages, hours 2/
and terms and conditions of employment. The duty to bargain is based on reciprocal requirements over mandatory subjects. Those mandatory subjects are all contained in the CBA. It is a permissive subject (meaning voluntary) to negotiate certain other things. One of those 3/
permissive subject is reopening an existing agreement. It is not required. It is not mandatory. It's permissive, voluntary. MLBPA has stated it has no desire to reopen the existing agreement. That's their right.

MLB wants to reopen the agreement. They made an offer. MLBPA 4/
rejected it. MLB made another offer. MLBPA rejected it.

Why didn't they counter?, Jon asks. First, because they didn't have to. But, more importantly, once they counter, they have agreed to reopen the existing agreement. Now, those matters become mandatory subjects again. 5/
They have a duty to bargain. If they can't reach agreement, and the parties reach a legitimate legal impasse, management may unilaterally implement terms and conditions. Why would they reopen an agreement they are comfortable with, especially when it puts that agreement 6/
in peril? It makes zero sense.

Yes, MLBPA wants a universal DH, but guess what MLB does too. They could agree on that subject without including new TV revenue for clubs in the proposal. They could agree to a small deal on game play changes. It could benefit both parties. 7/
But, MLB wouldn't make a proposal that didn't pre-stack the deck on playoff expansion in advance of the 2021-22 off-season CBA negotiations. That's always been the real issue between the parties. It will remain so. MLB wants it. MLBPA wants other things in the next CBA. 8/
They will negotiate over those big things at the same time, not management's big thing now and the Union's big thing next time. It makes no sense. Last year, MLBPA proposed a 50/50 split in increased TV revenue from expanded playoffs. MLB rejected that. It would have resolved 9/
the issue last year, this year, and into the future. But, MLB didn't want that then. Perhaps it will lead to a lockout this December. That's too far in the future to know.

But, MLBPA could not counter without giving up what it already has, something that was agreed to 10/
by both parties. Let's not pretend that the CBA is a unilateral document to benefit players. By many accounts the current CBA has greatly benefited management financially and has led to stagnated player salaries, except amount the absolute pinnacle performers. 11/
That said, it has very clear processes laid out for the season this year. The issues of salary arbitration, draft pick free agent compensation, salary minimums are all important, but they aren't going to be changed this year under any counter proposal. They will only be 12/
addressed in term CBA negotiations. That's when the issue of expanded playoffs and those big player financial issues can be addressed concurrently. This is not the time.

MLB knew its proposals weren't going to accepted or countered. It's merely a PR move and those who serve 13/
MLB's PR interests will criticize the Union for enforcing its agreement with MLB, partially because they are trying to serve their bosses, and partially because they are ignorant of the framework under which these discussions occur.

Something that's clear. Until there's a 14/
COVID related quarantine of a team similar to the Marlins or Cardinals last season, the games will go on.

Play ball!
I went back to a treatise on labor law to look at the subject of mid-term when subject to a reopener agreement in the CBA versus voluntary reopener. I made a mistake regarding unilateral implementation last night. If it's subject to voluntary reopener, the duty to bargain does
not attach in the same way. Either party may refuse to bargain and either party may withdraw from bargaining without reaching agreement. Because of that, the employer may not unilateral implement terms and conditions, like it can during required reopeners or negotiations over
matters not contained in the CBA. In those cases of required reopens negotiations over new subjects, economic weapons are availability.

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More from @EugeneFreedman

2 Feb
I made a mistake in the risk of the potential unilateral implementation in my thread last night. I do my best to get these things right when I make my long, impromptu threads. When I make mistakes of law, I seek to correct them. Here's the correction, as appended tot he original.
Someone asked me to explain this further. So, I'll try. In most bargaining there are duties and the parties cannot withdraw from negotiations. This applies in term contract (CBA) negotiations over mandatory subjects, mid-term bargaining subject to a CBA's reopener clause, and
mid-term bargaining over subjects not covered by the CBA. However, in this case, the mid-term bargaining is over matters already covered by the CBA. That means they can only be negotiated if both parties voluntarily agree to negotiate. In this rare instance, either party can
Read 7 tweets
1 Feb
Has anyone actually read FLRA caselaw?

"And once the agreements take effect, they purport to “irrevocably” block the government’s ability to challenge anything about the concessions to the ICE union for the next eight years."

This is completely wrong. 1/x
Under FLRA law, an agency can refuse to implement a "non-negotiable" provision at any time. Non-negotiable is a term of art in federal sector labor relations. It means a provision that if a provision of a proposal or implemented CBA directly interferes with management rights 2/
defined in 5 USC 7106, it can be invalidated. If an agency declares a provision non-negotiable during the term of the CBA, the burden is on the Union to enforce the provision, meanwhile, the CBA operates in the absence of the provision. The FLRA applies the same standard 3/
Read 5 tweets
31 Jan
Let's discuss this "proposal." MLB is proposing to pay employees exactly what they are entitled to under the season, but shorten their work schedule by ~5%. That's essentially a 5% raise. It moves the dates, which is essentially a push, although take note, MLB was unwilling 1/
to extend the dates of thee playoffs last season because of their TV contracts. It would seem that those TV schedules are no longer untouchable.

And, here's the kicker-expanded playoffs. This is a unilateral desire by management. MLB has wanted expanded playoffs for several 2/
years. It proposed them last year, reaching agreement, but only for one season. The MLBPA proposed splitting the TV revenue increases as part of the players' share of playoff money and MLB balked. That's why the deal was only for one year.

This remains the primary driver of 3/
Read 11 tweets
31 Jan
Rule 3.3 Candor Toward the Tribunal-Comment
[2]..." the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false."
[5] ..."requires that the lawyer refuse to offer evidence that the lawyer knows to be..." 1/
"false, regardless of the client’s wishes. This duty is premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence."

[6] "If a lawyer knows that the client intends to testify falsely or wants the lawyer to" 2/
"introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence." 3/
Read 6 tweets
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

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