Sports and the Law 3 Above the Law blog.jpgLast season, Barry Bonds, Major League Baseball’s all-time home run king, batted .276 with 28 home runs and 75 runs scored. Bonds also reached base 48 percent of the time—the best in all of baseball.
This season, however, Bonds is unemployed. The San Francisco Giants, his former team, prefer to play journeymen outfielders Dave Roberts and Rajai Davis. The Washington Nationals, meanwhile, seem to prefer outfielder Elijah Dukes, who has nearly as many lifetime arrests (6) as Major League home runs (10). Stranger still, the New York Mets claim to be content beginning the season with Ryan Church, Angel Pagan and Endy Chavez playing their corner outfield positions. Last season, the Church/Pagan/Chavez combo had 438 more at bats than Bonds, yet combined for eight fewer home runs, not to mention a lower combined batting average.
Bonds recently told the media that he is “working out” and “training,” in hopes of playing for some team this season. With recent notification that prosecutors must revise their perjury indictment against him, Bonds for the moment is free from any legal conflicts. In addition, Bonds is relatively healthy, not to mention just 65 hits shy of the 3,000 milestone.
So what’s going on here? Read more, after the jump.


Without any team outwardly expressing interest in Bonds, Donald Fehr, the executive director of the MLB players union, announced recently that he will begin to investigate whether MLB clubs are colluding against Bonds in violation of the league’s collective bargaining agreement (“CBA”). Specifically, Article XX(E)(1) of the MLB CBA states that “players may not act in concert with other players, and clubs may not negotiate with other clubs.” If MLB clubs reached an agreement not to sign Bonds, it would surely violate the CBA.
The history of baseball’s anti-collusion clause is interesting. The article’s current language comes from Article XVIII(H) of baseball’s 1976 CBA, which was drafted at the onset of the game’s free agency. The language was proposed by club owners who feared baseball’s first free agents might attempt to bargain in tandem against the clubs. Nonetheless, most of baseball’s neutral arbitrators have interpreted this clause as a source of potential liability for club owners. On three separate occasions in the 1980s, labor arbitrators found that MLB clubs illegally colluded with one another, leading the MLB clubs to ultimately pay $280 million in damages to the players union.
If Barry Bonds truly believes that he is a victim of collusion, he should encourage Fehr to file a labor grievance quickly. Yet, even if Fehr does so, the matter would not likely be resolved in time to save Bonds’s 2008 season.
Another possibility, albeit humbling, might be for Bonds to sign a blank contract with a team of his choice. During the heart of collusion in the 1980s, veteran outfielder Andre Dawson did just that. Seeking to play for a team that played its home games on grass rather than Astroturf, Dawson called a unilateral press conference and announced that he would sign a blank contract to play for the Chicago Cubs for the 1987 season. Although Dawson saw his annual pay slashed by 50 percent, Dawson still had the last laugh by not only winning the 1987 NL MVP award but also claiming a share of the players union’s $280 million collusion settlement.
Unlike Dawson, Barry Bonds is often described as surly and a poor clubhouse fit. Many general managers further believe that Bonds has used performance-enhancing drugs. However, neither of these purported blemishes to Bonds’s resume seems to fully explain why not a single team has made the slugger an offer at any price. If surliness truly were a disqualifying factor, then players such as Carl Everett, Dave Kingman and Jeff Kent would not have enjoyed careers each stretching for more than a decade. In addition, if alleged performance-enhancing drug use really made a player unmarketable, then players that actually tested positive for drug use under the new policy, such as Guillermo Mota and Rafael Bentancourt, would have never received new contracts.
If Bonds does not start receiving bona fide contract offers by Opening Day, it might be time for Fehr to file that collusion grievance. Although Bonds might not win any contest for Mr. Congeniality, he still is entitled the same rights as every other MLB player. It seems doubtful that any neutral arbitrator would earnestly believe that Roberts, Davis, Dukes, Church, Pagan, and Chavez, amongst others, are all better fits for Major League rosters than one of the game’s all-time most prolific sluggers.
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Marc Edelman is an attorney, business consultant, published author and professor, whose focus is on the fields of sports business and law. You can read his full bio by clicking here, and you can reach him by email by clicking here.


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