Demotion as Discipline: Learning to be a "Big Leaguer"

Florida Marlins' twenty-four-year-old, up-and-coming star, Logan Morrison was sent down to the minor leagues right after a game where he batted third in the lineup. Marlin brass told Lo Mo Morrison (LoMo) that he was being sent down for "baseball reasons" and cited his .240 batting average as evidence.  However, two days after being recalled, Morrison and the MLB Players' Association (MLBPA) filed a grievance against the Florida Marlin for what they see as a wrongful demotion.
Morrison believes that his demotion to AAA New Orleans was a form of discipline without just cause.  At the time,  LoMo was second on the Marlins in OPS, second in home runs, and third in runs batted in.  Additionally, the demotion came the day after LoMo missed a team meet and greet with Marlin season ticket holders.  LoMo had asked his Union Representative, Wes Helms, if he could miss the event, at which Helms replied that it was ok for him to miss.  Helms was released the next day; (perhaps due to his part in the ordeal in giving faulty advice).  Moreover, Larry Beinfest, Marlin President of Baseball Operations commented to the press that LoMo needed some more education on "being a major leaguer."

So the question remains, when can a major league player who has minor league options remaining be sent down to the minor leagues?  For that answer, let's turn to the text of the MLB Collective Bargaining Agreement.

In the NFL, It Gets Better; I Promise.

Pete Olsen, Ohio State University Moritz College of Law 3L Student, and author of the blog "Wide Rights" has uncovered quite a find in the new NFL collective bargaining agreement.  The NFL is the first professional sports league to protect players from any sexual orientation related discrimination (assist PrawfsBlawg). 
As Prawfsblawg (emphasis added by author) points out, the language from the 2006 CBA Article VII, Player Security, reads :

Section 1. No Discrimination: There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA because of race, religion, national origin or activity or lack of activity on behalf of the NFLPA.

The new language in the 2011 CBA, now moved to Article 49, reads:

Professional Athletes' Workers' Compensation? NOT IN MY HOUSE (California)!

One of the little discussed, but increasingly important NFL Collective Bargaining Agreement (CBA) issue in professional sports law is matters relating to professional athletes' workers' compensation claims. A disagreement has arose because numerous professional athletes have decided to choose California as the jurisdiction in which to file their workers' compensation claims, even if he had never played a game for a California home-team due to the belief that when it comes to Workers' Compensation Claims, California has plaintiff favored policies when it comes to work injuries that result from playing professional sports. This strategy was employed  much to the chagrin of the players' out-of-state employer who think that their players (employees) should be required to file their workers' compensation claims in the employers' home-state and have begun including contract provisions that preclude the players from bringing such injury related claims under California law.

However, even though this is an emerging and important issue within professional sports, the NFLPA and Owners punted on this issue, and decided to ratify the CBA and commence the football season  with this issue unresolved.  Nonetheless, both sides agreed to continue to negotiate in good faith regarding these emerging workers' compensation issues.  CBA Article 41 § (5)-(6) states that a joint committee will be formed to negotiate a possible California Workers' Compensation Alternative Dispute Resolution program on a trial basis.  This was agreed to with the big caveat that both sides retain their respective positions with respect to all current pending litigation. An example of such pending litigation was the case of the Chicago Bears versus three of their former players in The Chicago Bears Football Club Inc., et al. v. Michael Haynes, et al. No. 11 C 2668.  In her decision, U.S.  District Judge Elaine Bucklo affirmed an arbitrator's decision that the former Bears players were required to file their workers' compensation claims with the Illinois Workers' Compensation Commission instead of in California because their player contracts' required them to.

But why would a Chicago Bear  file his workers' compensation claim in California anyways?  For that answer, allow me to turn over the floor to Attorney Greg Grinberg; a Northern California Workers' Compensation Attorney who writes the blog wcdefenseca, a blog dedicated to California Workers' Compensation issues. 

Billy Hunter: "The Hunted" LP

The anguish was palpable after the latest NBA labor talks broke down after two long days of talks with little to no progress on a new collective bargaining agreement and a threat that training camps will not open on time.

The players' camp seems to be in disarray. There have been reports that some agents, taking the role as puppet-masters, are attempting to pull their players' strings in forcing the NBPA to decertify their union. Bill Duffy, Arn Tellem, Mark Bartlestein, Jeff Schwartz and Dan Fegan are the starting 5 on Team Agent, who also represent roughly one-third of the Union's players. They believe that the owners have most of the leverage and are ready to take it to the hole and blow up the union as a way to regain some of the power in the CBA negotiations, but union head Billy Hunter has rebuffed their proposal. In order for the Union to vote on the decertification issue, all Team Agent would have to do is convince all the players they represent, which totals roughly 30% of the Union members, to sign a petition to bring the issue to a vote.

NBPA President Derek Fisher rebuked Team Agents' request, and even called their motives into question. One only has to go back to the last NBA Lockout where the NBPA Executive Committee was accused of being run by super agent David Falk trying to protect his elite clients, as 10 out of 19 players on the Executive Committee were Falk clients including Union President Patrick Ewing, and fellow superstars Alonzo Mourning, Juwan Howard, and Dikembe Mutombo. This time around around, and probably much to Team Agent's chagrin, the NBPA executive committee is comprised of mostly role players and veterans (aside from star guard Chris Paul), which is evident by the leadership of veteran role player President Derek Fisher. Fisher and Hunter met with a group of about 40 players to discuss the progress or lack of progress in their negotiations with the owners and special guest presenter NFLPA Head DeMaurice Smith spoke about the decertification process as it was used for the NFLPA's specific needs. Many believe that Fisher is not ready to seriously consider decertification at this juncture as he believes that their NLRB complaint could be sufficient to shift the momentum. The Union appeared to leave the meeting an united front.

Subsequently, Fisher than sent an e-mail out to other members of the Union stating that the dysfunction was not among the players, but an internal divide within the Owners circle. After hearing these statements, Commissioner David Stern denied Fisher's allegations saying that the "vast majority" of the owners favor a hard salary cap and that the owner's negotiating committee has the authority to negotiate on all matters.

At their meeting, the owner's ratified a five year deal with NBA referees. The only question is how many games or if there will be a season to officiate at; Union Head Billy Hunter cautioned that the players should be ready to lose at least half a season at this time. Whether that is a threat or happens will be decided in the upcoming days. Derek Fisher has proven that he not only can lead teams to championship but can also unite all the NBA player's diverse interests. However, Billy Hunter needs to share some of the burden or it may not be too long that he ends up much like Hunter, Jan Levinson-Gould's assistant from NBC's "The Office," and let go to focus on his coffeehouse music tour.

The NFL CBA and Contract Holdouts

The Tennessee Titans put Chris Johnson, their standout running back, on the their reserve/did not report to training camp list today. Chris Johnson has held out for much of training camp in his own personal lockout because he wants to renegotiate his current playing contract to make him one of the highest paid players in the league. The holdout tactic is nothing new as players such as Emmitt Smith, Larry Fitzgerald, Logan Mankins and Vincent Jackson have used the tactic before. I thought that this was such a big issue that something would be included in the new collective bargaining agreement that would limit the practice.

Johnson is in the fourth year of a five year deal where he is scheduled to make $1.065 million this season, which would barely cover the $840,000 in potential fines that he has rung up for missing practices. Under Article 42, Section 1 (vi) of the new CBA, any unexcused late reporting or absence from preseason training camp by a player under contract comes with a $30,000 a day fine.

It is obvious that these fines have not been effective in stopping or deterring contract holdouts from occurring. I am currently writing and editing a law journal article on this topic where I propose that players and their teams enter into mandatory mediation prior to holding out, as opposed to salary or non-binding arbitration, which is prescribed for disputes over minimum contracts. I will either post that article or let you know where you can read it if I find a Journal to publish it. Nonetheless, the new CBA did not do enough to address the holdout epidemic and it will be costly to the players' teams and their fans. If and when Chris Johnson returns to the field for the Titans, he will be way behind the learning curve, which will have negative effect on the teams chances on winning the Super Bowl this season.

What exactly is in the new NFL CBA?

Lost in the excitement of the fact that football is back and the preseason games are in full swing is the fact there is a new 10-year collective bargaining agreement that is chock full of new and modified rules and provisions. With the second and third stringers seeing a majority of snaps, now is a better time to dig deeper into what exactly is in the new NFL CBA and the type of impact it will have on the NFL labor market as well as the ongoing and future CBA discussions in the NBA, MLB and NHL. The NFL CBA can be found here if you want to follow along at home.

Because the majority of the news reporters already covered the salary cap/revenue sharing deal points that seemed to take up a majority of the NFL lockout coverage, I will focus this discussion on more of the nuanced provisions such as: (1) the prevalence of binding arbitration as way to settle most disputes, including player contract holdouts; (2) new performance enhancing drug (HGH) testing; worker's compensation rules; (3) worker's compensation filing rules; and (4) the Commissioner's power to discipline players for off the field conduct, among others. Up first, we will discuss the rise of alternative dispute resolution, specifically the rise in the use of arbitration and whether it can be used to settle contract holdouts. Stay tuned!

No-no-no: David Stern Channels his Inner "Mutombo" to Preemptively Block NBPA

On Tuesday, Commissioner Stern ran up the "court" where he grabbed the first "Board"; National Labor Relations Board to be exact, to "block" the National Basketball Players Association (NBPA) from de-certifying as a Union. But enough for the flagrant foul worthy puns and onto what's going on in NBA Lockout Land. Stern decided to brush off his litigious rust that he fostered early on as the youngest Partner at Proskauer Rose, a white shoe law firm that has a significant sports law practice group, and preemptively strike and prevent the NBPA from decertifying. It seems as Stern learned from NFL Commissioner's Roger Goodell's cautious attitude toward the NFLPA decertification and wanted to stop it before it started. Goodell probably had a good understanding that it would take decertification in order to get the players back to the table. Goodell was rightfully optimistic that a deal would get done before risking any missed regular seasons games. You see, unlike the NBA, all of the NFL Franchises have been profitable. The lockout was just a way to reorganize how profitable the NFL could be and put the owners in a place where they could maximize profits for the longterm (i.e. 10 year deal.) In comparison, the NBA is not in great shape. Many teams have been taking losses the last few year to a point where almost half of the teams requested a credit extension from the League. That is not a good situation to be in when facing possible anti-trust litigation. Where as the NFL tweaked their salary cap structure, it seems that NBA Owners want to completely blow up their soft cap and start over again. This would be no easy fix in anti-trust violation settlement discussions. David Stern knew this and decided to nip it in the bud.