Talking Has Stopped so Litigation Looms : Baseball: Players’ union will take case to NLRB. More questions surface after owners implement salary cap.

Donald Fehr, executive director of the baseball players’ union, found the message light blinking when he returned to his hotel room in Washington late Thursday night after the final breakdown of bargaining talks with the owners.

The hotel operator told Fehr there was a package for him at the front desk. A Christmas gift? Fehr suspected otherwise.

The package contained 66 detailed pages on the owners’ new economic system and a five-page letter from management lawyer Chuck O’Connor, saying he was sorry it had come to this and was hopeful they could still negotiate a settlement. No handshake. No call. No invitation to a seminar explaining how the system works.

“This is the way people do things when they’re not very proud of it,” Fehr said Friday.

Chaos is soon to become the name of the game.

Litigation will soon replace negotiation.

Four months into a bargaining dispute that the owners have said is all about cost controls and revenue disparity and re-establishing competitive balance, owner Jerry McMorris of the Colorado Rockies seemed to finally say Friday what the players have always suspected.

In a Denver news conference, McMorris conceded that the owners needed help controlling their spending habits and that it was the players’ responsibility to provide that because the owners are too “fiercely competitive” to do it on their own.

“I was asked, ‘Why should players help with this behavior when the owners don’t seem to behave themselves?’ ” McMorris said. “I just took that straight on. There’s no point in trying to kid anybody. You have to get some kind of restraint on clubs because everybody thinks that if they get close, they’re only a player or two away, and that helps drive the prices to where they are. The system we have doesn’t work.”

Self-control, in other words, is as much an issue as cost control.

“What he’s saying is that, left to their own devices, the owners can’t stop themselves,” Fehr said. “So they are going to make sure the industry is shut down until the players agree to do what the owners can’t or are unwilling to do.”

The union is certain to cite McMorris’ quotes when it seeks injunctive relief through the New York office of the National Labor Relations Board on Tuesday, charging the owners with creating an illegal impasse and failing to negotiate in good faith.

It’s the next step in a dispute that has only begun. Here are some immediate questions and answers:

Question: What authority does the NLRB have and how long will that process take?

Answer: The NLRB, recognizing baseball’s seasonal aspect, has promised to expedite the situation. Nevertheless, it will take two to four weeks for the NLRB to determine if the union’s charge has merit.

If the board determines that it does, it will issue a complaint against the owners and may also pursue an injunction on behalf of the union. If an injunction is granted, the salary cap system will be put on hold while the issue of good-faith bargaining is debated before an administrative law judge, whose decision can be appealed by either side to an NLRB panel in Washington.

The panel’s decision can then be appealed by either side to a federal circuit court, putting it on the road to the Supreme Court.

The process could take months, possibly years, during which time the owners might be forced to operate under the old economic system.

Ultimately, if they are found guilty of having negotiated in bad faith, the salary cap probably will be overturned and the owners could face a fine that would make their $280-million collusion payment seem paltry.

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Q: Hasn’t the NLRB already cited the owners for negotiating in bad faith?

A: Yes. The NLRB issued two complaints--a complaint is comparable to an indictment--against the owners for withholding a $7.8-million pension payment due the union in August. The case will go to an administrative law judge on March 14.

The complaints--failing to negotiate in good faith and discriminating against union members--will be used by the union to support the charges it will file next week.

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Q: Sen. Daniel Patrick Moynihan (D-N.Y.) said Friday that he will definitely seek removal of baseball’s antitrust exemption. How would removal of that exemption facilitate a settlement?

A: If a bill removing the exemption also included an injunction against the salary cap while that issue played out in court, the players might be tempted to return to the field.

Basically, the exemption allows the owners to implement restraints of trade, such as the salary cap, that would be illegal in any industry regulated by antitrust laws.

The exemption also makes it more difficult for the union to pursue relief directly through the courts, although it is expected to do so in this instance, filing in Philadelphia, where a federal court recently ruled that the exemption applied only to the reserve system.

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Q: Where does all this leave the 1995 season? Are the owners definitely planning to open the spring camps with replacement players?

A: They appear headed in that direction. Several clubs have initiated ticket plans that will allow customers to get refunds if they are dissatisfied with the product on the field, and the general managers have formed a committee to study the replacement concept.

Considering that the 28 teams will need more than 600 replacement players, it will not be easy to pull off, however.

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Q: Where would the replacement players come from?

A: It is thought that the owners would focus on the lower minor leagues, veteran minor leaguers who might feel they have nothing to lose by crossing the line, college players willing to jump at a chance they might otherwise never get and retired players eager for one more shot at the majors.

The union privately believes that a small number of its members will cross the line, but whether the clubs can find 600 players willing to face possible retribution from the striking players is doubtful.

In addition, the Canadian province of Ontario prohibits the use of replacement workers during strikes, and the Toronto Blue Jays have said they will honor that restriction unless forced to challenge it as a reluctant litigant by Major League Baseball.

There is a similar law in the province of Quebec, but the Montreal Expos believe they can circumvent it because the union is not certified in that province.

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Q: How do managers and coaches fit into the replacement picture?

A: No one is caught in a more awkward situation. Managers and coaches are paid by their respective clubs. However, they are also members of the union’s health and pension plans and receive a yearly licensing check from the union.

“Players aren’t stupid,” Rockies Manager Don Baylor said. “They have to understand that all managers and coaches are in this position. We have to go out and do our job.”

Nevertheless, it’s a difficult issue.

“You have relationships with veteran players and at some point you think they’ll be back and at some point you have to explain why you did what you did,” Manager Tony La Russa of the Oakland A’s told the Oakland Tribune.

“If you tell me the game is better served by my sitting out, then I’ll sit out. I can pass up some paychecks. It’s something I’ll try to figure out for myself when the time comes.”

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Q: Are any players currently getting paid? How come there have been so many signings in the last few weeks?

A: It’s this simple: Both players and clubs were trying to position themselves before the new system was implemented and a possible signing freeze was ordered by the union.

The union, to this point, has said only that it will ask players and agents not to sign until it has had a chance to fully review the new system.

No players are getting paid and none will be until there is a settlement or they cross the line. The union will start doling out payments from its $175-million strike fund again in April.

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Q: Has there been any indication of major breaks in either the owners’ or players’ solidarity?

A: There is thought to be some unrest among the owners regarding the financial and legal risks of implementation, but only the Blue Jays, Baltimore Orioles and New York Mets voted against it, and only Baltimore owner Peter Angelos has been a consistent and outspoken critic of the owners’ bargaining strategy.

Acting Commissioner Bud Selig and his strangely silent partner, Chicago White Sox owner Jerry Reinsdorf, have remarkably and mystifyingly held the normally divisive owners together through cancellation of the World Series and the growing threat to the 1995 season.

The union figures to lose a small percentage of players if the camps open, but it is impossible to predict how many or who they will be.

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Q: Were there any 11th-hour changes in the system the owners implemented? Are any negotiations scheduled?

A: The owners elected not to implement a provision that would have credited players on the disabled list with only 50% service time and players called up in September with no service time.

They also chose not to implement a provision that would have required all players to make 20 free promotional appearances a year.

In response to the loss of $600 million in revenue because of the strike, they had previously removed a provision guaranteeing $1 billion in compensation to the players.

Last year, players received about 58% of industry revenue in salaries and benefits. The owners hope to lower that to 50%.

There are no negotiations scheduled and no indication that Jimmy Carter will replace William J. Usery as the mediator when and if negotiations resume.

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Q: Does the labor dispute with the umpires affect the dispute with the players?

A: The issues are different, but the owners seem to have taken the same uncompromising stance with the umpires that they did with the players, and the umpires’ union has already filed a complaint with the NLRB, charging the owners with having failed to negotiate in good faith.

Has anyone considered the possibility that the 1995 season could have replacement umpires working games involving replacement players?

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Uncovering the Cap

Teams payrolls in 1994 as calculated by management, their 1995 salary caps and the amount they will have to reduce their payrolls under the new economic system owners imposed Friday. Payrolls are for 40-man rosters and include averages of multiyear contracts; health and pension benefits; clubs’ medical costs; insurance; workman’s compensation, payroll, unemployment and Social Security taxes; spring training allowances; meal and tip money; All-Star game expenses; travel and moving expenses; postseason pay; and college scholarships.

TEAM 1994 1995 CAP REDUCTION Detroit $56,780,024 $51,145,846 $5,634,178 Atlanta 54,015,026 49,072,098 4,942,928 San Francisco 53,783,495 48,898,450 4,885,045 Chicago White Sox 52,277,283 47,768,791 4,508,492 Toronto 51,461,770 47,157,156 4,304,614 New York Yankees 50,670,072 46,563,383 4,106,689 Kansas City 48,733,109 45,110,660 3,622,449 Cincinnati 48,068,511 44,612,212 3,456,299 Dodgers 46,569,923 43,488,271 3,081,652 Baltimore 44,589,165 42,002,702 2,586,463 Oakland 44,380,517 41,846,216 2,534,301 Boston 43,973,007 41,540,584 2,432,423 Texas 43,097,772 40,884,158 2,213,614 Philadelphia 41,254,674 39,501,834 1,752,840 Houston 40,724,728 39,104,375 1,620,353 Cleveland 40,239,723 38,740,621 1,499,102 Chicago Cubs 38,924,936 37,754,531 1,170,405 Seattle 38,494,139 37,431,433 1,062,706 Angels 36,595,498 36,007,452 588,046 St. Louis 34,734,086 34,611,393 122,693 New York Mets 34,355,341 34,327,334 28,007 Minnesota 32,771,479 34,243,314 0 Milwaukee 30,445,458 34,243,314 0 Colorado 30,205,243 34,243,314 0 Pittsburgh 29,828,970 34,243,314 0 Florida 27,893,384 34,243,314 0 Montreal 24,268,772 34,243,314 0 San Diego 20,347,852 34,243,314 0 Totals $1,139,483,957 $1,127,272,699 $12,211,258

* CONGRESSIONAL VIEW

Sen. Daniel Patrick Moynihan (D-N.Y.) says he will introduce a bill to repeal baseball’s antitrust exemption. C4

* LEFT OUT

Dodger President Peter O’Malley’s involvement in the talks is from a distance, but that’s not his choice. C5