The current collective bargaining agreement expires in less than three weeks. There’s essentially no chance a new agreement will be reached before end of day on December 1. Major League Baseball will immediately implement a lockout to freeze all offseason activity.
The 2021-22 lockout lasted 99 days. The upcoming work stoppage is widely expected to be equally or more contested. MLB has conditioned all its offers on a salary cap, which was never under consideration during the previous lockout. The Players Association has reiterated its longstanding firm opposition. The parties have traded core economic proposals in recent months, but they’re essentially talking past one another so long as they’re working under completely different frameworks. Every MLB proposal to date has been conditioned on the cap; every union proposal has been conditioned on the absence of a cap.
As the sides brace for a lockout, Jared Diamond of The Wall Street Journal writes that MLB has begun to prepare for the possibility of one fairly extreme union action. Diamond suggests the league has planned for a scenario in which the MLBPA opts to file a disclaimer of interest during the lockout. That essentially means that the MLBPA would temporarily step down as an official union and sole bargaining unit on behalf of MLB players, instead operating as a trade association. (The players would surely recertify the MLBPA as an official union once there’s a new agreement in place.)
A disclaimer of interest would mean the MLBPA could no longer bargain on behalf of the players — at least until it’s reestablished as the sole bargaining unit. That would end collective bargaining negotiations without an agreement. Players would forfeit their protections under labor law but would be permitted to file their own antitrust lawsuits (likely in a class-action) against Major League Baseball.
It would be an extreme measure because it ends any hope of reaching a negotiated agreement through the collective bargaining process. One academic described it to Diamond as “the nuclear option.” The MLBPA has not disclaimed in prior negotiations, at least partially because of Major League Baseball’s century-old antitrust exemption.
According to Diamond, the Curt Flood Act of 1998 opens the door for the MLBPA, though the sides have managed to reach an agreement in every subsequent negotiation without decertification. That includes the 2022 negotiation, the first in which MLBPA executive director Bruce Meyer (then the union’s lead negotiator) was involved.
Players associations in other leagues, most notably the NFLPA and NBPA, have done this during previous lockouts. The NFLPA used this tactic back in the early 1990s, eventually leveraging players’ class-action suit into the introduction of free agency. As Bob Oates of The Los Angeles Times reported in 1992, a jury found the NFL in violation of antitrust laws and awarded players $543K in compensatory damages. Those are then tripled as a matter of public policy under a federal antitrust statute, so the NFL ended up paying $1.63MM at the time. (That law remains in place, which raises the stakes for MLB in any civil antitrust matter.) The L.A. Times reported a year later that the NFLPA subsequently petitioned the National Labor Relations Board for recertification to resume the collective bargaining process related to player benefits.
Those interested are also encouraged to read this ESPN article from 2011 about the NFLPA again disclaiming. NFL players at the time filed for an injunction to lift the lockout. The trial court granted the injunction but that decision was reversed on appeal by the Eighth Circuit, Diamond notes. He writes that if the MLBPA were to follow this path, they’d likely file in a different circuit in hope of finding an appellate court that’d render a different decision. MLB might argue that doing so was a sham designed to undermine the negotiating process rather than players genuinely wanting to relinquish union protections. MLB could try to raise claims of unfair labor practices under the National Labor Relations Act.
This is all theoretical to this point. Everyone involved would surely prefer to come to a negotiated CBA rather than going through the court system. If the Players Association goes this route at all, it likely wouldn’t happen until deep into the lockout.
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