Thursday, February 12, 2009

Agents of Change

The Major League Baseball Rule 4 draft (its annual draft of amateur ballplayers from the United States, Canada, and Puerto Rico) is, frankly, troublesome. In the real world, when a job prospect negotiates with a potential employer, that employer has to compete with all the other companies offering that candidate a job. In baseball, when a player is chosen to enter the league, he is allowed to negotiate only with the team that picked him. You have 30 individual businesses restricting the rights of young men to choose their employer, under the guise that the league is somehow a single entity, rather than a confederation of competing states. And while this makes little sense from a logical standpoint, it's basically what has kept the league functioning smoothly since the early 1960s, as perenial losers like the Phillies, Browns, Senators, and Boston Braves (to name just a few franchises that had incredibly long fallow periods) now have the first crack at exciting young talent, which allows them to (in theory) return to competitiveness sooner (note, may not apply to the Pittsburgh Pirates or Kansas City Royals).

Anyway, because of this system, young men just out of high school and college have been at an extreme disadvantage as they've tried to negotiate contracts. And the NCAA hasn't made this any easier. Until yesterday, if a high school or college player retained legal counsel, to help them sort through their drafting team's offer, to double-check the contract to make sure it really was in the player's best interest (basically hiring an agent, but not paying them), they lost their college eligibility. In other words, 18-22 year old kids were expected to negotiate with grown men with 20+ years of experience in baseball. While "advisors" were allowed to have contact with the kids, they were not allowed to communicate in any way with the ballclub. That system, with its arbitrary distinctions and half-baked rules, makes absolutely no sense to The Common Man.

And so, when Andrew Oliver, a 21 year old kid, wanted to be pitching for Oklahoma State this year, he could not because his advisors went to a meeting with the Minnesota Twins, the boy and his father. According to ESPN,
"His former advisers, Tim and Robert Baratta, were at a meeting between Oliver and Twins officials when they discussed a potential contract.

That meeting led to Oliver's suspension from Oklahoma State last spring and his lawsuit.

Oliver and his father testified that the advisers were at the meeting because neither of them knew enough to negotiate a professional contract.

Instead of playing ball, Oliver was forced to the bench, even though the Twins never paid him a dime.

Yesterday, however, ESPN reports the wise Judge Tygh Tone (awesome name, by the way) ruled, "An NCAA rule that allows players to hire a lawyer but prohibits them from negotiating a contract is impossible to enforce and allows for the player to be exploited." Tone struck down the NCAA's rule and ordered that Oliver be allowed back on the team. And there was much rejoicing.

This is an important development for a couple of reasons. First, and most importantly, remember that the overwhelming majority of players who get drafted never even sniff the major leagues. Unlike football and basketball, there is an extensive minor league system that weeds out players who simply never develop the skills needed to make it. For most of them, their signing bonus is the biggest paycheck they'll ever collect from their ballclub. Also unlike basketball and football, many of the draftees are taken right out of high school, meaning that they're barely legal to begin with, and not at all up to understanding the complexities of their market value.

Second, it's potentially another step down the road toward Major League Baseball losing its anti-trust exemption, or at least all the perks that go along with it. While this ruling does not address baseball's draft specifically, it does attempt to deregulate the rules limiting ameteur players. An enterprising attorney and player, The Common Man imagines, would have little difficulty demonstrating that the current draft structure is also exploitative, and should be deregulated, or even that the draft rules do not apply to players who have yet to join the Players' Association (who negotiates the league's collective bargaining agreement). Given that the Supreme Court has said (in 1972) that only Congress can revoke the anti-trust exemption, perhaps a court ruling that addresses the league's rules and structure is unlikely. However, it is unclear to The Common Man why the Court believed Congress had jurisdiction in this matter, when the court has been the only entity to officially address the league's status since 1922, and when the Supreme Court itself bestowed the anti-trust exemption. The Common Man wonders whether, after 36 years, legal opinions may and interpretations may have changed radically, and wonders what has stopped agents and players from attacking the league and the draft through the courts. Maybe one of you dear readers can set him straight.


BillP said...

Off the top of my head, I think it's because the antitrust rules themselves are a creation of Congress, so Congress gets pretty wide discretion as to how they're going to be applied. The Sherman and Clayton Acts don't really protect a constitutional right or anything; Congress just decided that it was in the best interests of our economy etc. to be concerned (sometimes) about how powerful companies are able to manipulate the markets for their products and such. So as long as doing so doesn't impair some right that is constitutional, Congress can spell out how they want those rules to be applied (or not applied).

I suppose a creative lawyer (I hear tell that there are a few of those out there somewhere...maybe Shyster, or John Grisham) might try to argue that the exemption is limiting the players' freedom to contract for their services and such, but I don't think that works, for a lot of reasons that will take too much time to explain.

The Common Man said...

But, as The Common Man understands it, the courts decided baseball has an anti-trust exemption because its games were not considered (in 1922, Federal Baseball Club of Baltimore v. National League, when the court originally decided, interstate commerce. Well, that's obviously not the case today, isn't it? Indeed, you can get every baseball game on MLB's Season Ticket package, regardless of where you live. And teams claim large realms of influence that supersede state borders (the Mariners claiming the entire Pacific NW, for instance). So, based on the original ruling, couldn't the original premise that the Supreme Court applied to declare baseball exempt be attacked and the original ruling overturned?

BillP said...

You're totally right. I forgot that it was the Court that put the exception in place (impressive feat, since I read a whole book about that once...I'll use the "it was very early in the morning" excuse). Frankly, even in 1922, the claim that it wasn't interstate commerce was completely fabricated, and there's no way that would stand now even if the game itself hadn't changed at all.

Strangely, though, I stumbled into providing more or less the right analysis anyway.

I read the 1972 case, and basically what they said was that, yeah, the exception was dumb, and not something the Court should be engaging in. But in the 50 intervening years, it had become settled law, and Congress (whose business it should have been in the first place) had acquiesced in it. So the principle of stare decisis (basically, "let settled law stand," even if it was stupid in the first place, unless there's a really compelling reason not to...same principle that kept Roe v. Wade ambulatory in 1992) prevented the Court from overturning it 50 years after the fact. So they gave it back to Congress, and what I said up there is right for a slightly wrong reason.

Anonymous said...

Blackmun wrote the majority opinion in both Roe v. Wade and the baseball antitrust case. I think his approach in the baseball case was to name as many players as possible to exponentially increase the stare decisis effect of the decision. Personally, I think his inclusion of Fred Merkle in a list of great players was a real boner and substantially decreases the precedential weight of the decision.

Blackmun's litany:

Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanela, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganess, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiske, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. The list seems endless.

Steven said...

Blackmun's list is more frequently perceived as evidence of the court's bias. Basically 9 old men who should know better ignored the law because thoughts of diamonds and hot dogs reduced them to skittish little boys.

It's worth remembering that the case in question was Curt Flood's challenge to the reserve clause. While Marvin Miller's leadership of the players union has largely corrected these injustices in the interim, the Court at the time upheld the right of every major league team to hold the rights to a drafted player for life. Under the reserve clause players had no rights to negotiate the terms of their employment ever.

raphael said...

the draft is part of the CBA and no court is going to find for a complaint against a CBA.