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Wednesday, November 14
 
Settling the dispute

By Darren Rovell
ESPN.com

The Major League Baseball Players Association has filed a grievance against baseball's team owners over their threat to contract two teams from the 30-team league. The grievance could be settled through arbitration, a system of resolution that is quicker than hearing the case in court, though not necessarily less complicated.

Before a case is heard, the arbitrator must determine whether he has jurisdiction to render a decision in the dispute. As a joint appointee of the Major League Baseball and the Major League Baseball Players Association, the arbitrator is bound by the league's collective bargaining agreement (CBA). If the grievance filed by the players association against the owners over their intention to contract two teams conflicts with parts of the CBA, the arbitrator is within his jurisdiction to rule. While there are no specific stipulations in the CBA involving contraction, owners may have violated other principals spelled out in the agreement.

Who is the arbitrator?
Shyam Das, who has been a full-time arbitrator since 1977, was named Major League Baseball's permanent arbitrator in late 1999.

His landmark case to this point was the resolution of the suspension and fine of John Rocker after his racial remarks in a magazine article. After the players' union filed a grievance concerning Bud Selig's 73-day suspension and $20,000 fine, Das reduced Rocker's penalty to a 14-day suspension and a $500 fine.

Neither side can fire an arbitrator while he is hearing a case, though Major League Baseball tried to do it in the late 1980s when it attempted to fire Tom Roberts before he ruled on a collusion dispute. The players association filed a grievance against the league that was heard by another arbitrator, who ruled in the union's favor.

After the case is over, however, either side can terminate the arbitrator.

-- Darren Rovell

If the arbitrator determines that the dispute has its base in the CBA, the arbitrator must then hear the facts and issue a decision. The arbitrator has broad powers. He can rule over the owners' right to contract or he can simply decide whether the owners need to bargain in good faith with the players association for contraction to take place. The arbitrator also may choose to issue an economic or other remedy if a violation of the CBA is found. It is arguable that a violation has not taken place since the owners have merely voted on contraction. Contraction itself, of course, hasn't taken place.

Cases go to arbitration in order to speed up or avoid the judicial process. It is realistic for an arbitrator to render a decision in a matter of days or weeks, while a court case could take much longer. For example, baseball salary arbitration cases are decided within 24 hours after a three-hour hearing. But if the decision does not satisfy the losing party, it may file a motion to overturn the arbitrator's ruling, which would then be heard in a federal district court. According to Robert Creo, a former baseball salary arbitrator and an NFL grievance arbitrator, an arbitrator's decision can be overturned in three instances:

  • If the arbitrator has exceeded his jurisdiction. For example, the arbitrator orders that baseball commissioner Bud Selig should be fired based on his lack of cooperation with the union over contraction.
  • If the arbitrator's decision was made unethically. For example, if the arbitrator had a financial stake in the outcome.
  • If the court finds the decision is contrary to a recognized public policy. A simple disagreement or argument over the outcome is not sufficient to challenge the decision.

    Creo says an overturned arbitrator's decision is rare.

    If the owners win the arbitration, contraction isn’t necessarily imminent. The players association might ask for support from the National Labor Relations Board in the event it can prove contraction would violate the the Wagner Act of 1935, which grants rights that enable unions to negotiate with management over working hours, wages and working conditions. Working wages and working conditions may be interpreted to be at stake in contraction, said sports labor expert Paul Staudohar.

    Even if the NLRB doesn't take up the case, contraction isn't definite. Not only because some people within the state and federal government already have threatened to become involved by attempting to remove parts of baseball's antitrust exemption, but because the owners might use contraction as a negotiation tactic.

    "What they have done might have been within the law," said sports economist Rod Fort, who testified before a Senate subcommittee on antitrust last November regarding revenue disparity and competitive balance between baseball's teams. "But they might not actually do it. They could just bring it to the table when they sit down to negotiate the new collective bargaining agreement and threaten to do it if they don't get an additional luxury tax or some sort of salary cap."

    Darren Rovell covers sports business for ESPN.com. He can be reached at darren.rovell@espn.com.




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