Marvin Miller is thinking of the days when professional baseball players needed winter jobs to make ends meet, when they had no guaranteed contracts or free agency.
Now he sees the Major League Baseball Players Association, a union he created one player at a time more than 40 years ago, allowing Bud Selig to browbeat Jason Giambi into cooperating with George Mitchell’s doping investigation. He sees Congress threatening to insert itself into a labor dispute involving private industry. And he can’t understand why his union isn’t doing anything about it.
“They ought to be speaking out,” he was saying last week, a day before Giambi agreed to cooperate. “It’s self-destruction.”
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Miller, who left the union in 1983, says his successor, Don Fehr, doesn’t know how bad things could get. No active players were around in the days of the reserve clause, which bound a player to a team for life.
“He has no idea what they can descend into again,” Miller says. “Not one idea.”
Some labor experts scoff at the idea that Major League Baseball players, who make an average salary of $2.94 million a year, will ever go back to five-figure salaries. But during the last few years, something has clearly changed in baseball’s labor landscape.
The union that made the Teamsters look like a badminton club, the union that held together through the 1994-95 strike without a single defection, has compromised in ways many never would have imagined.
That was obvious in 2004 and ’05, when the players association agreed to reopen the labor agreement twice to toughen the drug-testing policy — no agreement had ever been renegotiated between bargaining sessions — and was underlined last week when officials allowed Giambi to accept Selig’s ultimatum to meet with Mitchell.
“There isn’t the slightest basis for the players association to be doing what it’s doing,” Miller says. “They ought to be speaking out on the following basis: The commissioner has no authority over whether Giambi, in this case, or any player should speak with the investigator appointed by the commissioner or not. If he wants to take action [by suspending or fining Giambi], everybody’s free to take action. That’s not the question. Would it be upheld? Not a chance.”
The basic agreement says a player can be punished for using steroids only if he fails a test or if MLB can show that he violated the policy in the last year. There was no policy before 2003. The union argued that Giambi, who admitted he used steroids before there was testing or punishment, had done nothing for which he could be punished.
Experts believe the union would have won a grievance if Selig tried to suspend him. But after Selig demanded that Giambi meet with Mitchell, all the parties participated in talks that led to Giambi agreeing to do just that.
To some, Selig’s actions with Giambi weren’t simply an effort to rid the game of doping: They were an attack on the union itself, an attempt to exploit a perceived weakness.
“It’s absolutely an attempt to provoke a fight,” says Paul Finkelman, professor of law at Albany Law School.
Several factors have changed the landscape in recent years, starting with the fact that there wasn’t much more for the union to win after decades of shutout victories. MLB also improved its strength by having one commissioner in place with one labor team for the last 15 years.
But Finkelman believes Fehr and union Chief Operating Officer Gene Orza miscalculated players’ feelings about doping.
The union, whose officials declined interview requests, also stumbled when officials failed to order the destruction of urine samples and records from the 2003 “survey” year of testing, which was supposed to have been anonymous. Because the samples were not destroyed, federal prosecutors were able to seize the material as part of the BALCO investigation.
To union stalwart Tom Glavine, reopening the basic agreement in mid-contract was a “bad precedent,” but he sees the steroid-related machinations of previous years as a unique chapter.
“The players understand the issue, and they understand what’s going on,” he says.
And while players disagreed over the extent of the game’s doping problem, they ultimately agreed that testing was necessary.
Beyond the feelings of the players, however, pressure from the government got the players association to cave.
While President Bush raised the issue of steroids in his 2004 State of the Union address, increasing attention on the topic, Mitchell, the former Senate majority leader from Maine, has been Selig’s real weapon in getting the union to cooperate. Mitchell made it clear to owners in January that if they didn’t want to deal with him, they could face congressional subpoenas.
Miller argues that there is little Congress can do to the union. The antitrust exemption, which primarily allows MLB to control where its teams are located, is an issue for owners, not players, he says.
But after watching Mark McGwire, Sammy Sosa and Rafael Palmeiro at steroid hearings in March 2005 and then seeing members of the Senate Commerce Committee berate Fehr six months later, Finkelman says the union has plenty of reason to keep Congress at bay.
“Baseball players don’t want to be called before Congress and have to take the Fifth,” Finkelman says.
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“It’s kept Mark McGwire out of the Hall of Fame.”