How a Major League Baseball lockout would work this winter

Baseball Commissioner Rob Manfred and Major League Baseball Players Association executive director Tony Clark speak before Game 1 in baseball's World Series against the Atlanta Braves Tuesday, Oct. 26, 2021, in Houston. (AP Photo/Ron Blum)
By Evan Drellich
Nov 1, 2021

ATLANTA — When labor experts discuss strikes and lockouts, they often refer to them as “weapons.”

“The goal is to have parties bargain collectively,” said Marty Edel, a professor at Columbia Law School and the head of the sports practice at Goulston and Storrs. “And what the National Labor Relations Act does is it gives the parties various economic weapons.”

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“The courts even called it that,” said Dave Leach, a professor at Brooklyn Law School and former National Labor Relations Board regional director. “I grew up on the streets of Brooklyn. We used to have games of king of the hill during snowstorms. … Well, that’s what collective bargaining is: the strongest pushes the weakest off the hill.

“They’re throwing weapons at each other.”

Just as a strike is typically the most powerful tool available to workers in a labor dispute, a lockout is the strongest available to management. And while there are some technical differences between lockouts and strikes aside from the initiating party, both have a shared result: work stops. 

In a lockout, an employer says, “’I’m not going to let you work until you agree to my deal,’” explained Lauren Rich, an attorney who worked both for the Major League Baseball Players Association and the NLRB. “And the strike counterpart, is ‘I’m not going to offer you my services until you agree to my deal.’ It’s supposed to impose economic pressure on the other side.”

During the last quarter-century in the major U.S. men’s sports, work stoppages have exclusively been lockouts, not strikes, and that trend may soon continue. If Major League Baseball and the Players Association have not agreed on a new collective bargaining agreement by midnight entering Dec. 2, it is very likely that the sport’s owners will lock out the players. If that happens, all of the typical offseason transactions, from free agency to the arbitration process to the Rule 5 draft, would likely be frozen until a new deal is reached. The sport’s annual mid-December winter meetings would likely be canceled — at least the portion of the meetings involving the major leagues. (There is a minor league component, as well.) Players would not be able to use club facilities, but spring training and the 2022 regular season itself would only become threatened if the lockout lasted long enough. Spring training starts in February, the regular season at the end of March.

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The sides could still reach a new deal prior to the current one’s expiration at 11:59 p.m. ET on Dec. 1. Proposals have been made on dozens of topics, and some have led to more progress than others. On Tuesday, prior to Game 1 of the World Series, commissioner Rob Manfred and MLBPA executive director Tony Clark expressed tepid optimism. 

But on the core economics, the piece both sides are most concerned with, the gap is large. The league and union have made one such proposal each, and neither was well received by the other party. More discussions are to come as the deadline nears. Although Clark and Manfred are both involved strategically, the talks at the table have been headed by their lieutenants, chief operating officer Dan Halem for MLB, and senior director of collective bargaining and legal Bruce Meyer for the MLBPA.

Every negotiation is different, but first offers are typically wish lists. In that context, it’s unsurprising that the sides are far apart. 

“We always used to sit down whenever we got any offer from the clubs at any point, and we would always look at that offer in terms of what in here looks like a throwaway, because they had to put it in,” said Rich, who left the MLBPA in the 1990s. “Because they have a group of 30 (owners) they have to satisfy in terms of how they go forward. And what looks real, in terms of what they have to have?”

But how quickly owners and players can bridge the gap, and whether they can do so by Dec. 2, is unclear. Movement often waits until a deadline nears.

If no deal is reached by then, the owners are free to lock out the players. The only preconditions for a lockout are the expiration of a CBA, which will have taken place, and a couple formalities of notice to relevant agencies, one of which has already happened. There is no threshold for a certain number of proposals the sides must make prior to a lockout or a strike.

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A lockout would create the sport’s ninth work stoppage since 1972, and its first since the 1994-95 strike — ending a streak of 26 years of labor peace.

Even though baseball itself has avoided a stoppage for more than a quarter-century, every subsequent work stoppage across the NBA, NFL and NHL since the 1994-95 strike has been a lockout. That does not appear to be a coincidence. Baseball’s last strike was devastating in part because it began in August, in the middle of the playing season. From that point on, owners became unlikely to ever allow players to pick the time and place of a work stoppage. They see it as wiser to institute a lockout before games begin, rather than entering spring training without a deal agreed to, and giving players a chance to walk out.

“The tactic du jour … has lately been lockouts,” Rich said. “It gives them a big hammer. They’re using the weapon.”

Despite that pattern, a lockout in baseball this year would nonetheless represent a choice by the owners. The expiration of the CBA does not mandate that they freeze the winter. The owners could choose instead to keep bargaining while free agency and the rest of the offseason unfold along their typical calendar. But that could create complications if baseball’s economic system changed in bargaining. (At the same time, the sport has to have a month of free agency no matter what. Players can be signed in November. Owners may be hesitant to make signings quickly in the month ahead of the CBA’s expiration, but owners also cannot collectively decide to halt free agency prior to Dec. 2.)

But ultimately, the owners would want a lockout most for the purpose of creating pressure, which likely could come in a variety of forms.

Back in 1965, American Ship Building — a company that George Steinbrenner would later come to run — played a key role in allowing employers to use a lockout as they do today in any industry. The Supreme Court ruled in favor of American Ship Building in a case against the NLRB.

“Up to that point, the NLRB had said, ‘It’s too disruptive of bargaining for an employer to lock out offensively, to put economic pressure. They can lock out to be defensive, to protect themselves from a strike,’” Leach said. “But it goes to the Supreme Court of the United States, and the Supreme Court rejects the board’s offensive-defensive theory, and says, ‘This employer has a right to put economic pressure on it just the way the union did.’ … So since that point, employers have the right to lock out to put economic pressure.”

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One club executive said owners would “lose all their leverage” if they did not institute a lockout right away in December.

“Why would the players ever reach an agreement then?” the executive said.

Owners might also have interest in testing the players’ resolve, and might not mind shifting free agency to a later, more condensed window on the calendar, either. A scramble to sign players, say, two weeks before spring training — were the CBA to be agreed to then — could work to the owners’ benefit.

A lockout in December also could create a longer runway for negotiations, and thereby could help avoid interrupting games later on. There’s a reason the CBA expires in December rather than, say, just before the start of the regular season.

“That mitigates the impact if the parties can’t reach a conclusion at the bargaining table,” Edel said. “This gives the owners and players a chance to bargain like the dickens now, and see where it goes.”

A lockout doesn’t necessarily mean a deal will come quickly, though.

At any point, a lockout is a serious measure. Halting free agency would have a chilling effect on the industry as a whole. But a work stoppage in December isn’t as threatening to either party as it would be once the spring training and playing calendar begins. Fears spike once paychecks are on the line. Player salaries are paid during the season, not over the winter.

“When do you give your best offer for anything?” Rich said. “You want a new apartment, and your lease is expiring, so when are you going to give your best offer? When you have to. In that sense, baseball labor negotiations are no different from any other negotiation. … It has historically been when they have to start playing again, because that’s when the owners start getting revenue and the players start getting paid.”

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Of the eight prior work stoppages in the sport, three were lockouts, the last in 1990. To this point, lockouts in baseball have not led to any canceled games, although Opening Day was delayed a week in 1990, and the season’s calendar was extended.

If there is a lockout, both sides will still be required to bargain in good faith, to demonstrate “a present intention to reach an agreement,” Leach said. Either side could file a complaint with the NLRB if it had evidence of unfair labor practices.

“You can tell from the bargaining, do they really intend to reach an agreement, or are they just going through the surface and bargaining without trying to make an agreement?” Leach said. “As with anything with the NLRB, it’s a question of fact.”

Kate Bronfenbrenner, director of labor education research at Cornell’s School of Industrial and Labor Relations, or ILR, said “there are some special things about lockouts that are tricky.”

“They’re kind of dangerous turf for employers,” Bronfenbrenner said. “And the thing to look out for is a tainted lockout. Employers that have experience with lockouts — I imagine most of the lawyers in sports are aware of this, but you never know — (are aware) that if a lockout happens in the context of unfair labor practices, then a lockout turns into the equivalent of an illegal strike. And if it’s gone on a long time, then the back pay is incredible. … A tainted lockout can put pressure on the employer to then make concessions that they might not otherwise make.”

For example: a failure by the league to properly respond to the union’s information requests could result in a tainted lockout. But MLB indeed has very experienced lawyers at the top, making easily avoidable mistakes unlikely.

Technically, lockouts do have some differences compared to a strike. In a lockout, an employer can replace workers temporarily, but in a strike, employers can permanently replace workers. Bronfenbrenner therefore does not see a strike and a lockout as equivalent tools.

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“The employer can replace the workers in a lockout, and the employer can replace the workers in the strike,” Bronfenbrenner said. “There is not a balance of power. The employer gets to have the power in both.”

But at this point, without a lockout underway, the topic of replacement players is not germane to baseball. MLB owners used replacement players in 1995, angering the players who were holding out. But baseball players are much more difficult to replace than workers in many outside industries, and there are still many months to go, and many proposals to be made, before the controversial maneuver would potentially enter the picture.

In baseball, a more salient difference between a lockout and a strike might be the potential effect on the public.

“What the numbers show is … when employers lock out, the union is more likely to get community support,” Bronfenbrenner said. “When workers are locked out, the union is able to say, ‘We didn’t choose to go out, and the employer locked us out, and we’re prepared to go back to work, and they won’t let us go back to work.’”

At the same time, sports work stoppages can engender different feelings than those involving blue-collar workers. Sports labor disputes often produce a millionaires vs. billionaires narrative.

Ultimately, if MLB does move for a lockout, both the owners and the commissioner alike would be taking a risk, one that could affect the commissioner’s legacy.

“Does he want to be the commissioner who took the first labor dispute in 25 years? Does he want to be that commissioner?” said Rich. “I don’t know. … But also what’s going to matter is where the owners are at. And if Rob is good at anything, he is a master at figuring that out.”

(Photo: Associated Press / Ron Blum)

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Evan Drellich

Evan Drellich is a senior writer for The Athletic, covering baseball. He’s the author of the book Winning Fixes Everything: How Baseball’s Brightest Minds Created Sports’ Biggest Mess. Follow Evan on Twitter @EvanDrellich