Evaluating the Mechanics of a Grievance Filed by the MLBPA by Mike Scott August 25, 2020 On June 23, it was reported that Major League Baseball and the MLB Players Association had agreed to terms to resume play in 2020 following the sport’s suspension due to the COVID-19 pandemic. This agreement came on the heels of the now-infamous March 26th agreement that was the subject of debate and contention between both sides of the bargaining table. Among other things, the agreement does not foreclose the right of the MLBPA to file a grievance and seek financial damages as it relates to the interpretation of the Agreement. Specifically, the players may look to challenge whether the league did in fact negotiate in good faith as it relates to how many games were to be played in the abbreviated 2020 season. Further, the agreement also states that the Office of the Commissioner’s effort to issue a schedule for the 2020 season shall only be performed to the extent it is “…practicable and economically feasible.” The term “economically feasible” is likely another point of dispute, as the league did not reveal any financial data, supposedly requested by the union, that would help to justify their claim that a season without fans would be a detriment to its bottom line. As the season now rolls along, we can explore the process by which the MLBPA may file a grievance to have its claims be heard and adjudicated. What Is A Grievance? Article XI of the parties’ 2017–2021 Basic Agreement (the CBA) sets forth the terms and conditions of grievance procedure. As defined, a “grievance” is “a complaint which involves the existence or interpretation of, or compliance with, any agreement, or any provision of any agreement, between the [MLBPA] and the Club…or between a Player and a Club.” Presumably, the March 26th Agreement would fall within this definition. Grievance hearings between the MLB and MLBPA are traditionally held between a tripartite panel made up of one neutral arbitrator and one arbitrator each appointed by the league and the MLBPA. A majority vote of the panel will decide a matter before it. At the very end of Article XI is Section E, which authorizes the MLBPA to initiative a grievance on behalf of the players “…on all matters not involving player discipline.” In the event that the parties cannot agree upon an impartial arbitrator, they may appeal to the American Arbitration Association to provide a list of arbitrators who have a body of experience and are qualified to adjudicate the matter at hand. Upon the furnishing of a list to the parties, the league and the MLBPA, in accordance with the CBA, will take turns striking names from the list until only one remains. The last remaining arbitrator will be selected. Rules of Procedure Appendix B to the CBA describes the procedure by which grievance arbitration hearings before the tripartite will proceed. The procedure explicitly states that the hearings will be informal and “…shall be viewed as a cooperative endeavor to review and secure the facts….” This varies the hearing a bit from how a normal proceeding would occur before a traditional court of law. In fact, the panel may vary the normal procedure by which the parties present their arguments so long as both sides are afforded an equal opportunity to do so. As one may expect, the parties may be represented by its in-house counsel and/or by any outside counsel that may be appointed. Where a grievance procedure greatly varies from that of a state or federal court proceeding is that the there is no obligation to adhere to the Federal Rules of Evidence (e.g. hearsay is admissible); moreover, the chair of the panel may request and require any additional evidence as he/she deems necessary. This presents a potentially sticky situation as the panel chair may require MLB’s financial statements be produced if the league does in fact continue with its argument that a season without fans is immensely harmful to its bottom line. It should also be noted that the omnipotence of the panel chair is likely what pushed MLB to try and reach a settlement with the MLBPA rather than mandating a season early on in the process. Interestingly, in the case of Twelve Clubs Comprising Nat. League of Prof. Baseball Clubs and Twelve Clubs Comprising Am. League of Prof. Baseball Clubs, L.A. and Montreal Clubs and MLBPA, the league was not required to produce its books and record in an National Labor Relations Board hearing when the league claimed financial distress in the absence of free agent compensation. On the other hand, on the heels of the sixth CBA negotiations between the two parties in 1985, the league was required to hand over financial data. Although this is not a negotiation, but rather a resolution of the interpretation of a side agreement, a panel chair would have to determine whether financial data is necessary to the MLBPA’s claim that the league is in fact not in financial distress. Nevertheless, both sides can elicit testimony from witnesses that is provided under oath at the hearing or through affidavit. At the close of the evidentiary proceedings, the panel chair may deem the hearing closed and issue a decision. There is no firm deadline for how long a hearing may be or how long a panel has to render a decision. However, the CBA often makes reference to Section B of Article XI as it relates to different timing requirements for filing and hearing a grievance, although this section specifically relates to a grievance filed by a player. For a player-field grievance that reaches the stage of arbitration, the procedure dictates that a decision shall be rendered by the panel “as soon as practicable following the conclusion of such hearing.” Finally, the decision of the panel shall constitute the full, final, and complete decision as it relates to the grievance filed.