Lockouts Defined

I read Greg Steiner’s December 6th contribution to Culture in Sports “Locked Out”, expecting to be critical of it. Instead, I loved it and it very accurately reflects how fans feel about the zero-sum game of collective bargaining and the bargaining process.

Why would I be critical of an earnest colleague like Greg? I am a sports labor lawyer who has spent most of the last two decades commenting on the labor wars of professional sports and the ins and outs of that “sausage-making” process that no fan should really look at, too closely. I have for most of the last 12 years taught a class on collective bargaining in pro sports either at New York University, or now at Penn State’s School of Labor and Employment Relations where I am slated to teach that class again this spring. This is such a rich area of study I stopped representing players before the cataclysmic years of 2011-12 when three of the four major sports all locked out their players to gain an economic advantage in collective bargaining to be free to consult and comment on the games outside the games. The only major sport that avoided a lockout then was Major League Baseball (MLB), in part because the owners in baseball realized that they had suffered so much economic harm in their past labor battles. But every time the economic realities of a sport change, we end up having to come back the brink of a lockout or to a lockout itself.

So just what is a lockout? It is management device that exists to mitigate the economic harm of the workers’ right to strike which is a legal right given to organized workers and labor unions in the U.S. under the National Labor Relations Act. In most business activities there are moments when workers have the ability to inflict economic harm by striking- think of harvest season when all the watermelons, tomatoes, or grapes, you name it, are ripened and need to be picked and courts have recognized that management as a result can lock out workers before this harm occurs, and in some cases hire replacement workers to even out the economic harm a strike at a critical moment can inflict. Management in professional sports that depend on collective bargaining to keep labor peace and provide certain important antitrust protections have figured out that lockouts can be an offensive mechanism, too. The players are generally young, have short careers, often live very large, meaning they can’t go a long time without receiving their paychecks, and they are usually paid only in season. So, locking players out at the end of a collective bargaining agreement keeps them from their off-season bonuses, threatens the resumption of training camps, and the flow of new money. And this is just what we are seeing in baseball now.

Lockouts have been used in all of the Big Four (MLB, NBA, NFL & NHL) professional sports to force the players into a concessionary posture in collective bargaining for decades, but you can describe the first two decades of the 21st Century as the Empire Strikes Back era, through the offensive use of lockouts.

Don’t believe me?

Quick, when was the last players’ strike in either baseball, basketball, hockey or football?

If I told you, it was 1994 when the Major League Baseball Players Association (MLBPA) faced with accepting a salary cap or the threat of being locked out, said, “you can’t lock us out… we are on strike,” you’d probably call me a liar.

You’d say, “not so fast my friend, wasn’t there a whole year we lost in hockey and weren’t there a couple half seasons also lost in hockey and in basketball in the 90s and 00s?”

All lockouts by management, not players’ strikes. That is how management uses the lockout offensively.

As Greg Steiner correctly points out, fans typically won’t and don’t care. They are just like the 8-year old version of me, who when opening day rolled around, back in 1972 and games weren’t played due to the first ever players’ strike in pro sports, just wanting my baseball. But it is important to note that a December lockout is management flexing its muscles early to put players on their back foot in upcoming negotiations and drive-up pressure on younger and less established players to agree to what they are offered and get back to playing rather than hang on for what they want in collective bargaining.

Will we see a protracted dispute? I don’t see that looming. Sure, the first signs of Spring, or at least the hope of Spring, pitchers and catchers reporting could be threatened. But again, as Greg Steiner points out, baseball is an entertainment business and has myriad competitors for our entertainment dollars, far more than it did in the last century when its labor troubles helped in some measure to erode its singular position as the national pastime and first among equals in all U.S. team sports. I expect to see baseball back for Opening Day in April because it simply can’t afford, after two Covid diminished seasons, not to be. The players know this, too, which is why you are seeing the owners taking this tact now.

And after complimenting Greg’s analysis, let me quibble on just one point. The biggest wins, achieving independent grievance arbitration, getting salary arbitration, and creating free agency, that the players in baseball have achieved were not won through the courts but in collective bargaining and through collectively bargained processes. Basketball and football players have successfully used the courts and antitrust actions to make up for weaknesses at the bargaining table- too short playing careers, gaps in solidarity, and the imbalance of millionaires taking on billionaires. But for baseball it was an arbitrator who limited the reserve clause in a grievance, not the Supreme Court in Curt Flood’s famed suit and it was wins at the bargaining table that made baseball players both highly paid and also the owners of the best benefits in all of sports, because free agency was initial foreclosed because of the reserve clause, the MLBPA focused on run of the mill collective bargaining issues like retirement and lifetime health insurance.

I joked at the beginning of this that collective bargaining can be a zero-sum, unsightly process, like “sausage-making,” that has its blind spots and challenges, but it remains the name of the game for getting players back on the fields ending this lockout and the solution to the problems in pro sports all must run through the bargaining table.