Owners Strike Out In Front Of Panel

Baseball labor

Baseball owners got steamrolled again in court Tuesday when a three-judge panel denied their request to have an injunction stayed, clearing the way for the season to start April 26.

The panel of the 2nd U.S. Circuit Court of Appeals repeatedly ridiculed management lawyer Frank Casey during a 1-hour hearing, dismissing his argument that owners had the unilateral right to do away with free agency and salary arbitration before an impasse in bargaining.

“You’re fuzzing things,” Chief Judge Jon Newman told him, adding later, “We’re just going around in circles.”

The judges, following acerbic and caustic questioning, let stand the injunction issued Friday by U.S. District Judge Sonia Sotomayor, which forces owners to adhere to the expired collective bargaining agreement. The 2nd Circuit will hear an expedited appeal during the first half of May, but it may go before a different panel.

“We’re happy,” union head Donald Fehr said. “People are back and we want a long-term agreement.”

“I’ve talked to our lawyers and I understand the hearing didn’t get into the heart of the issues,” acting commissioner Bud Selig said.

Sotomayor’s injunction caused players to end their 232-day strike, and the judges’ questioning made clear it is unlikely the injunction will be overturned.

Newman, his voice rising with incredulity, assailed Casey when the lawyer claimed the injunction and its “whipsaw forces” prevented collective bargaining.

“Do you really think the answer is yes? Is that the point? You really believe it? You really think that the letter that Mr. Fehr sent, which said, ‘We’re ready to resume negotiations,’ your position is, ‘We’d love to resume negotiations over a new contract but the district judge has prevented us from doing it.’ Is that your position?”

“That is correct, your honor,” Casey said.

“Well, what will it take to persuade you that that position is wrong?” Newman said. “Do you want to hear it from Judge Sotomayor? Or from us? Or what?”

Two of the three judges on the panel told Casey they thought owners made a key legal mistake when they dropped their attempt to declare an impasse in bargaining. On Dec. 23, owners declared an impasse and imposed a salary cap, but they abandoned the cap on Feb. 3 after the National Labor Relations Board said it was inclined to issue an unfair labor practice complaint.

Casey called the NLRB’s preliminary finding a “technical violation.”

“You had the possibility … of pursuing that with the NLRB and you threw in the towel,” Judge J. Daniel Mahoney said.

“You could have fought that out in court and had a heck of a good case. You didn’t,” Judge Ralph Winter said. “You agreed to restore the status quo. And the very next day you turned around and disrupted the status quo.”

Three days after rescinding the salary cap, owners unilaterally abolished freeagent bidding, salary arbitration and anticollusion rules, claiming they were permissive rather than mandatory subjects of bargaining. The NLRB issued a complaint on March 15.

“You stepped back,” Mahoney said, “from whatever compulsions and whatever impulses, and never made the case, ‘That look, there’s been a strike, we’ve been bargaining. They say, “Salary caps - never.” We’re at an impasse.’ If there were an impasse, then you wouldn’t be obliged to continue the terms into the 1995 season. Isn’t that the problem from the owners’ point of view?”

Casey made the mistake of trying to explain a case involving the NBA to Winter, who wrote the opinion three months ago.

“With all due respect, let me defend my own decisions,” Winter told him. “I did not say that.”

Casey said owners will not appeal the stay decision to Justice Ruth Bader Ginsburg, the Supreme Court justice responsible for the 2nd circuit.