NEXT, A SUIT OF PINSTRIPES?

If death and taxes are the only certainties, George Steinbrenner seems convinced that his New York Yankees are going to experience death by taxes unless the players’ union can remove some of the sting from the bargaining proposals on the table.

It’s a strange business when Steinbrenner and the Yankees become de facto partners with Don Fehr’s union, but that’s basically the situation as the bargaining negotiations approach crunch time. The Yankees are so concerned about the financial hit they will take from the proposed revenue-sharing and payroll-tax components that they have asked noted attorney David Boies, who carried Al Gore’s election case to the Supreme Court, to investigate a possible lawsuit against baseball if the ultimate bargaining agreement is, for them, too onerous.

The Yankees, of course, have signed and agreed to abide by the provisions of the Major League constitution, and legal experts don’t think they would have much chance in court. Nor are they certain on what basis the Yankees would sue, but as Gary Roberts, the Tulane sports law professor, said by phone, “This is America. You don’t always need a basis or precedent to sue.”

Boies did not return messages left at his office, and the Yankees refused comment, but it is safe to say that they have not generated much sympathy among the 29 other teams given the rampant envy that is the byproduct of the Yankees’ industry-high revenue and four World Series titles in the last six years, and the rampant anger at how they flaunt their riches.

A high-ranking baseball official said that when the Yankees recently acquired Raul Mondesi and Jeff Weaver, spiraling their 2002 payroll to about $135 million, he got all over club executives, telling them, “What you’re doing is rubbing it in people’s faces. I mean, the Yankees are a hard club to deal with because they’re light years ahead of everybody financially. It’s not easy to be sympathetic.”

It’s also safe to say that the Yankees are in a category by themselves in more ways than one.

First of all, baseball’s revenue classifications can now be defined as the Yankees, the Haves and the Have Nots. Second, aside from some private concerns among the Boston Red Sox and a couple of other big spenders regarding the proposed tax/revenue-sharing bite, the Yankees are pretty much isolated on the issue.

This is not to say that Commissioner Bud Selig, trying to control his varied and self-interested factions, among them a group of militants who apparently don’t mind shutting the industry down for as long as it takes to get a deal that will cap payroll and salary growth, has total unanimity.

It’s only to say that as Selig tries to prevent the type of splintering and capitulation that eroded management efforts in previous negotiations, the Yankees are the team that will be hit hardest by the proposals, possibly the only team affected by the payroll tax, depending on the threshold at which the tax kicks in. And they certainly are the only team considering a lawsuit against its collective bargaining partners.

Yankee executives have already met with baseball officials to express their concerns. Selig, choosing his words carefully, said, “I hear from a lot of clubs on a daily basis and I’m sympathetic to their positions, but I have to make decisions based on the greater good. I’d add that the road map regarding our labor objectives was very public and shouldn’t have come as a surprise to any team or anyone else.”

He referred to the recommendations in the report by his blue-ribbon economic committee in July 2000--recommendations that have been followed by management negotiators.

Now, with the strike date only six days away, the Yankees are hoping that union negotiators can reduce what their increased financial obligation will be over the next three to five years, if there is a settlement.

And if there is not?

In that case, the Yankees’ obligation will probably be even larger, because owners will ultimately try to implement new work rules, imposing a more restrictive tax than any emerging from a settlement with the union.

According to figures released by the commissioner’s office, the Yankees had local revenue of $217.81 million last season and a payroll of $120.86 million, and they paid about $28.2 million in revenue sharing, with no payroll tax.

The Yankees’ 2002 revenue projection is $230 million, and although their 25-man payroll of $135 million is imposing enough, it goes to $171 million for tax purposes, because those computations include the 40-man roster and benefit plan contribution.

The union, of course, wants to minimize the toll on the Yankees and the half dozen or so other clubs that drive the salary market, but even on the basis of the union’s current revenue-sharing and tax proposals, the Yankees would pay about $51 million next year. The owners’ proposals would cost them about $86 million. It’s a heavy burden either way, but the Yankees are clearly rooting for the union to lighten the load.

Said a lawyer supportive of their position:

“The Yankees pay more than anybody pays, and are willing to continue paying, but what’s the point if it depresses their franchise value and threatens the way they do business?

“The guy in San Diego [John Moores] paid $80 million for his franchise and does nothing to improve it. Why should he get a windfall at the Yankees’ expense? I mean, when you get beyond sound-bite words like ‘competitive balance,’ this is all about people doing what’s in their own best interest, and if it comes down to a fight for survival, the Yankees will use everything at their disposal.”

The point, indeed, is that fellow owners want to threaten the way Steinbrenner, who bought the Yankees for $10 million in 1973 and whose holdings include hotels, a thoroughbred horse farm, a transit company and a lucrative cable network tied to Yankee telecasts, does business. The intent is not to break up the Yankees but to bring them back to the pack.

Meantime, one of the tools at his disposal is Boies.

William B. Gould, a Stanford law professor and former director of the National Labor Relations Board, said he had not looked at filings in the mail-and wire-fraud case brought by former minority partners of the Montreal Expos against Selig and former Montreal owner Jeffrey Loria under the racketeering statute known as RICO, but that, perhaps, the Yankees could cite the same statute in alleging conspiracy and violation of a contractual understanding.

But, Gould added, “It would be my impression they would have a very tough time legally and practically.”

It would be new terrain, said Roberts, the Tulane law professor.

Using legalese, he cited the agreements that commit the Yankees to a “joint venture partnership” and a “multi-employer group for bargaining purposes” and said maybe they could claim breach of fiduciary duty and good faith bargaining.

He added, however, “I don’t think this situation has ever been addressed, and my instincts tell me that at the end of the day, they would lose.”

Fay Vincent, the legally schooled former commissioner, agreed.

“I have no expertise except my own experience, but it strikes me as a loser’s game,” he said. “David Boies is a first-class lawyer, but the Yankees signed the major league agreement and they have to live with those judgments. I can’t believe it’s a serious issue.”

Perhaps not, but the thought of Steinbrenner rooting for Fehr? And the 29 other clubs rooting against both?

Well, as Professor Roberts said, “As the backdrop of a potential strike, it makes for an interesting sideshow.”