The Legality of Clubhouse "Codes of Conduct"

In an effort to get some of the L'Affair du Grimsley egg off its face, the Arizona Diamondbacks may implement a "Code of Conduct" for its players that is more stringent than Major League Baseball rules, as reported here. The Arizona Republic's headline: "Rules May Block Kendrick's Code of Conduct." Who's cited in the article for the proposition that such a move would be illegal? A law professor? A union executive? Nope, shortstop Craig Counsell:

"A code of conduct will not happen," shortstop Craig Counsell said. "Our rules in this game are through the collective bargaining agreement.

"If it's through the collective bargaining agreement, if it's something that's bargained, fine. But for me, doing things individually, team by team, is a dangerous precedent, and I don't think it's something we should get into."

Is Counsell’s counsel correct? He is certainly is right that baseball has collective bargaining. As to “mandatory subjects” of collective bargaining (broadly speaking, wages, hours and working conditions), an employer could not make a change mid-contract that imposed more onerous restrictions on employees without committing an unfair labor practice. There’s little doubt that a drug testing policy would be a mandatory item of bargaining as a “condition of employment”. While the exact scope of the Code of Conduct hasn’t been released, it would likely touch on mandatory items. And since the team has threatened to release players who violate the Code, regardless of the scope of the Code it likely affects the wages of the team's employees.

However, where Counsell may be going astray is in his presumption that because MLB is it will always be represented by just one bargaining voice. The Diamondbacks are tied to the MLB collective bargaining agreement only because Major League Baseball is a "multi-employer bargaining unit." Each team employs its own players -- that is, MLB players are not employed by the league. Multiple employers can consent to negotiate collectively, which MLB teams have done, delegating authority to the Player Relations Committee (PRC) to negotiate collectively on the teams' behalf. That consent must be genuine. Unions may not coerce employers to bargain as a multi-employer unit, and employer consent to negotiate as a multi-employer unit can be withdrawn -- either before the next contract is negotiated, or in "unusual circumstances" (notably, an employer can’t withdraw from a multi-employer bargaining unit after impasse is reached during negotiations). If the union wants to push the issue here, the Diamondbacks could always withdraw from the multi-employer unit before the date of the next contract negotiation (this December). The D-backs players would still have the right (by way of the MLBPA) to negotiate a contract with the team, but it would be a contract that applied only to D-backs players. Might the team also have room to argue that the Grimsley affair (and the current federal investigation of baseball) has created “unusual circumstances” allowing a team to break free of the multi-employer bargaining unit mid-contract?

UPDATE: Reader Pete Kreher writes to inquire whether my suggestion--that a baseball team could (NOT will), prior to the next bargaining session, withdraw from the multi-employer bargaining unit--is consistent with the Fifth Circuit's decision in NASL v. NLRB, 613 F.2d 1379 (5th Cir. 1980). That's a very good question. In NASL, the 5th Circuit held that the league and individual teams were joint employers and thus that multi-employer bargaining was mandatory. Some have indeed read that case as meaning that all sports leagues must bargain as a multi-employer unit (for example, the attorneys briefing Brown v. Pro-Football in the Supreme Court, see 1996 WL 72350 at 15 n. 8). To be sure, there are many legal and negotiating advantages to be had by teams in bargaining as a multi-employer unit (notably, the non-statutory labor exemption from antitrust law, which may or may not be of significance in baseball, depending on what one views the scope of the "business of baseball" exemption to be in light of Flood v. Kuhn and the Curt Flood Act). I'm not sure that NASL was good law when it was decided, or that its reasoning would be extended to sports leagues other than the now-defunct NASL. To my knowledge, courts and the NLRB have followed NASL only in connection with Arena Football and a rodeo league. This issue was the one of the subjects of Tulane's Sports Law Moot Court competition a few years ago, see 11 Sports Law. J. 273. As others have pointed out, it would be an odd result to hold that a sports league is a joint employer (for the sake of the NLRA), but not a "single entity" for the sake of the Sherman Act. Since most case law suggests that the major leagues are not single entities, it would produce some instability in the law to hold that they are joint employers.

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