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eugenefreedman.bsky.social Profile picture
eugenefreedman.bsky.social
@EugeneFreedman
counsel to the President @natca; Union lawyer; writer about baseball labor relations; @cornellilr; @UMDLaw; #ChevyVolt driver; #Prince #Gangstarr4Ever He/Him
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Sep 9, 2022 • 6 tweets • 2 min read
A friend asked me why this all seemed to happen so quickly, when it should have happened 50 years ago. I will say that there are 3 main reasons. Tony Clark, hubris, and COVID.

Until two days ago I had never been in the same room with Tony Clark, nor heard him speak, except 1/ in limited sound bites. Also, the media portrayed him as not up to the job, something I took with a grain of salt. But, in hearing him speak Wednesday and subsequently meeting him, I can say unequivocally, he is a trade unionist. He has big goals for protecting and advancing 2/
Sep 9, 2022 • 5 tweets • 2 min read
One of the best thing about subscribing to a number of newsletters is that when you miss an important story, newsletter authors give you a heads up. Today, @injuryexpert put me on to this one I missed.

It's about one of the biggest subjects in the new CBA - the bonus pool for 1/ pre-arbitration players. We knew about it generally based on how it was reported at the time, but now we get to see how it is specifically working.

MLBPA and MLB are still operating under their Memorandum of Understanding (MOU), rather than a formal CBA; it's why the CBA 2/
Sep 7, 2022 • 10 tweets • 2 min read
A number of people on threads for national baseball writers asked, what is the AFL-CIO and what does it mean that the MLBPA is now affiliated with it.

I will try to give a brief answers to those questions and also explain the benefits of AFL-CIO membership. 1/x The AFL-CIO is the American Federation of Labor-Congress of Industrial Organizations. It is a federation of labor unions, meaning it is not a labor union itself, but rather a collection of labor unions that have chosen to ally themselves to seek mutual aid.
The AFL-CIO has 58 2/
Sep 7, 2022 • 7 tweets • 3 min read
.⁦@LizShuler⁩ President of ⁦@AFLCIO⁩ and Tony Clark of ⁦@MLBPA⁩ at talking about organizing MiLB and that MLBPA is joining the labor federation. #1u #aflcio Image Tony ClarkLiz Shuler
Apr 29, 2022 • 11 tweets • 3 min read
So, I wrote about how the union gets to appoint in-house or select outside counsel in an arbitration under this policy, but I'll also address the Union's duty of fair representation and how many unions determine whether to pursue a case.

A union cannot 1/ act arbitrarily, discriminatorily, or in bad faith when making decisions about whether and how to represent employees for whom they are the exclusive representative. Because discipline is covered by the CBA and the policy on domestic violence etc. is covered in the CBA, the 2/
Apr 29, 2022 • 9 tweets • 2 min read
I want to lay out the procedures of appeal, because the player has indicated he will challenge the discipline.
1) Discipline under the Joint Domestic Violence,
Sexual Assault and Child Abuse Policy is subject to grievance arbitration panel review (1 neutral, 1 from Union, 1 1/ from MLB. But, essentially, it's the neutral who makes the final decision.
2) Only the Union and/or the Union's appointed outside counsel may argue the case for the player. This could lead to conflicts, but arbitration is a creature of the contract, so the player has little 2/
Feb 28, 2022 • 5 tweets • 2 min read
I'm pleased that there have been so many more truth tellers recently. I just wish they had come sooner. And, I hope that partners like ESPN will allow their writers to bring the honesty (and that they are willing to do so- I know some won't be willing).

In this column Andy 1/ makes a lot of important points.

The first is that Manfred and the owners want to cancel games. The reason, which is unstated, is that they know the money is back ended. It's in the pennant races and the playoffs. They realized in 2020 that a credible season is short. It's 2/ What it looks like you can’t do, on that final day in Marc
Feb 27, 2022 • 6 tweets • 3 min read
No both sides arguments from Ken Rosenthal this morning. He doesn't pull any punches in his column about the status of negotatiations placing this crisis of lost games on Manfred's lap. 1/ The players’ union made moves on Saturday, moves it consid He goes on to make some of the points I've been making regarding the owners treating this as a zero sum game and a cavalier disregard about missing games - he stops short of the reason for that, which I've said is a misguided belief that they can break the union. 2/ Meyer and the union strongly deny all of those criticisms. E
Feb 27, 2022 • 7 tweets • 2 min read
As I've said throughout, I don't want to make a prediction about the timing of an agreement. It happens when the parties are ready to make it happen.
But, what has become increasingly clear is what Evan identifies in this article, "The owners were never, ever going to hand over hundreds of millions of dollars to the players unless they had to."

Normally a lockout is immediate. Employees don't get paid and aren't allowed to work. They aren't locked out in a period when they are on a months long unpaid vacation. Opening day is when the lockout really
Feb 27, 2022 • 18 tweets • 4 min read
The 1947 Taft Hartley amendments to the Wagner Act (National Labor Relations Act) are generally despised, but there was one good thing and that was the inclusion of the "good faith" standard in 8(d) of the Act.

I've previously mentioned the duty only attaches to mandatory 1/ subjects (wages, hours, and other terms and conditions of employment) and not permissive subjects that either party can refuse to bargain over (such as supervisors' pay - or in this case minor league pay for players not on the 40-man roster).

So what is "good faith?" 2/
Feb 26, 2022 • 4 tweets • 1 min read
So, we are still in the place where MLB wants its two big asks - additional round of playoffs and a reintroduction of the CBT, but they want a CBT that's completely unchanged, despite increasing revenues, and the Union has mostly given up on expanding arbitration eligibility. 1/ Yet, it's management who is angry.

George Cohen, the great labor lawyer, who was Chairman of the FMCS in the Obama Administration, (who had negotiated for NBA players in 70s and District Court case for MLBPA in 94-95) once told me that the owners are all rich men who are 2/
Feb 24, 2022 • 8 tweets • 2 min read
There's a lot here to unpack and correct.

It would be mean to start with the homophone, so instead, I'll just say, don't take legal advice from this guy.

The standard is not "sufficient good faith efforts." That's a whole load of made up nonsense. I wrote about impasse two 1/ years ago. I mistagged the wrong Ken Rosenthal, but the rest is still good. It's a long thread explaining what the NLRB looks at when determining an impasse. 2/
Feb 24, 2022 • 16 tweets • 4 min read
Ken wrote an interesting piece today that I want to spend a little time discussing. Yesterday, I made a general warning not to spend too much time reading articles about how to resolve the difference between the parties. I'll give you some reasons why in this thread: 1/ We only know the basics of every proposal. If you were to look at the MLB-MLBPA CBA, it has long articles, particularly the ones on complex subjects like the luxury tax/competitive balance tax, free agency, arbitration eligibility, service time, and a host of other subjects. 2/
Feb 24, 2022 • 4 tweets • 2 min read
Here, Maury is saying the cause of the lockout is the absence of a CBT. Management would not agree to any CBA without one and they would not go forward this season without one.

I have said repeatedly, in the absence of a lockout the CBA would continue in full force and effect 1/ and that the CBT is not part of the current CBA that would continue. His details basically make that academic, because management cannot live without its CBT.

Of course, negotiating to impasse and unilaterally imposing a last, best offer isn't child's play. MLB screwed it up 2/
Feb 24, 2022 • 7 tweets • 2 min read
For new readers I have a more than a few threads you may want to revisit from November-now. This thread will contain links to other threads you may be interested in reading.

On MLB's proposal re: free agent eligibility: 1/ On why MLB was going to lock out players when the CBA expired (it's the competitive balance tax).
2/
Feb 24, 2022 • 9 tweets • 3 min read
Dan raises an interesting question. The duty to bargain in good faith is a totality of the circumstances test (although there are several things that are bright line violations). The problem is that the public, including me, are not privy to all fo the details. The Board 1/ has found "The essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground." It's hard to say management has done so here.

It has put on a facade of bargaining, meeting and making proposals, as such, but hasn't been willing to 2/
Feb 23, 2022 • 8 tweets • 2 min read
MLB may have asked for mediation because of internal communication problems/misunderstandings. Owners may have mistakenly believed that a lockout would pressure players to give in. Now that they haven't, they don't know how to get out of the box they've built for themselves. 1/ Ending the lockout would appear weak without a no strike agreement, which they aren't going to get. I addressed the timing & leverage of a strike vote & strike in this thread. 2/

Feb 22, 2022 • 4 tweets • 1 min read
Owners want to both control expenses completely & have unlimited revenues. They believe players will bend if not break on these subjects. It's a new group of owners who didn't live through 70s/80s or 94-95. They think they will win absolutely. Only solidarity will counter that. With regard to controlling expenses, what they really want is an agreement with the Union to control the expenses of the owners who would otherwise spend more in order to try to win championships. It's anti-competitive at its core, yet it's called the "competitive balance tax."
Feb 18, 2022 • 9 tweets • 3 min read
This has shades of the restart negotiations in 2020. Players get paid in the regular season. Teams get paid throughout spring training, regular season, and playoffs, but make the most of their money during the late pennant race and playoffs. Consequently, MLB cares less about 1/ missing early regular season games. The players consider all of the games the same from a financial standpoint.

This lockout was as much to lock out Steve Cohen and other high spending owners during a lapse in the CBT as it was to put pressure on the players to reach 2/
Feb 18, 2022 • 5 tweets • 2 min read
It looks like someone filed an Unfair Labor Practice charge against MLB. It was filed by an individual not MLBPA. The charges include bad faith bargaining including surface bargaining, which I discussed with @keithlaw on his podcast this week. 1/

nlrb.gov/case/02-CA-290… What's interesting is that it was filed by an individual. It alleges surface bargaining and direct dealing (meaning going to employees directly and not through their Union representative). It also alleges unilateral changes to terms and conditions of employment. And it alleges 2/
Feb 16, 2022 • 5 tweets • 1 min read
More both-sidesing a complex asymmetrical situation.

Reminder - MLB took 43 days to make a counter proposal after unilaterally, voluntarily implementing a lockout. MLB delayed its most recent counter said it wasn't going to respond at all, wasted time requesting mediation. 1/ Management has refused to address several of the Union's primary interests - earlier arbitration, reduced revenue sharing so teams don't profit from not trying to win, and earlier free agency. The Union has withdrawn the final of those subjects.

Meanwhile, management's two 2/