2011 Seton Hall University School of Law Sports and Entertainment

Home , 1941 World Series, Danny Gardella, Home Run Derby, Wendell Kim

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LABOR RELATIONS AND THE FUTURE OF PROFESSIONAL BASEBALL

EDITORIAL FOREWORD The Set on H al l U ni ver si t y School of L aw Jour nal of Spor t s & Ent er t ai nment L aw i s pr oud t o publ i sh t he pr oceedi ngs of t he l andmar k confer ence L abor Rel at i ons and t he Fut ur e of Pr ofessi onal Basebal l , convened at t he St . John’s U ni ver si t y School of L aw on N ovember 18, 2011. The Jour nal i s a pr eemi nent publ i cat i on i n t he fi el d of Spor t s L aw and Deni s H ughes, N ew Yor k St at e AFL -CIO President, has acclaimed the Labor Law program at St . John’s as “one of t he fi nest i n t he count r y.” The Set on H al l Jour nal of Spor t s & Ent er t ai n- ment L aw’s col l abor at i on wi t h t he Cent er for L abor and Em- pl oyment L aw at St . John’s i s an i nnovat i ve st ep for war d i n l egal educat i on, combi ni ng t he gr eat st r engt hs of t hese t wo t op-tier academic institutions.

Javier Diaz

Symposium Editor

Wol fgang Robi nson

Edi tor -in-Ch i ef

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164 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2

A MESSAGE FROM THE SYMPOSIUM CHAIRS

David L. Gregory* & Joseph Gagliano**

. . . Ther e ar e t he many names, cel ebr at ed for one r eason or another, that have sparked the diamond and its environs and that have provided tinder for recap- tured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season . . . and all the other happenings, habits, and su- perstitions about and around baseball that made it the “national pastime” or, dependi ng upon t he poi nt of vi ew, “t he gr eat Amer i can t r agedy.” Justice Harry Blackmun Fl ood v. K uhn, 407 U.S. 258, 261-64 (1972)

The game’s beauty and drama make it diffi cul t for some t o see t he pl ayer s as empl oyees. I ndeed, basebal l ’s owner s i nsi st ed t hat t he pl ayer s wer e not empl oyees wi t hi n t he meani ng of t he N at i onal L abor Rel at i ons Act . . . . William B. Gould IV BARGAINING WITH BASEBALL: LABOR RELATIONS IN AN AGE OF PROSPEROUS TURMOI L 9 (2011)

[It has been 165 years] . . . si nce t he N ew Yor k N i ne de- feat ed t he K ni ck er bock er s 23 t o 1 on H obok en’s El ysi an Fi el ds June 19, 1846, with Alexander Jay Cartwright as the instiga- t or and t he umpi r e. The t eams wer e amat eur , but t he cont est marked a significant date in baseball’s beginnings. That early game l ed ul t i mat el y t o t he devel opment of pr ofessi onal baseball and its tightly organized structure. . . . On St. Patrick’s Day in 1871, the National Association of Pr ofessi onal Basebal l Pl ayer s was founded and t he pr ofessi onal l eague was bor n. The ensuing colorful days are well known. . . . The for- mation of the National League in 1876; . . . t he for mat i on of t he Amer i can Associ at i on and t hen of t he U ni on Associ at i on in the 1880’s; . . . interleague warfare with cut-r at e admi ssi on pr i ces and pl ayer r ai di ng; t he devel opment of t he r eser ve “cl ause”; t he emer gence i n 1885 of t he Br ot her hood of Pr ofes- sional Ball Players, and in 1890 of the Players League; the appear ance of t he Amer i can L eague, or “j uni or ci r cui t ,” i n

* The Dor ot hy D ay Pr ofessor of L aw, t he Execut i ve D i r ect or of t he Cent er for L abor and Empl oyment L aw, and t he Facul t y Advi sor t o t he L abor Rel at i ons and Empl oyment L aw Soci et y. J.S.D., Yal e L aw School , 1987. * * Adj unct Pr ofessor of L aw, and t he Facul t y Advi sor to the Entertainment, Arts & Spor t s L aw Soci et y. J.D., St . John’s University School of Law, 1985. SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 165

1901, r i si ng fr om t he mi nor West er n Associ at i on; t he fi r st World Series in 1903, disruption in 1904, and the Series’ re- sumption in 1905; the short-l i ved Feder al L eague on t he ma- j or s’ scene dur i ng Wor l d War I year s; t he t r oubl esome and di scour agi ng epi sode of t he 1919 Ser i es; t he home r un bal l ; the shifting of franchises; the expansion of the leagues; the i nst al l at i on i n 1965 of t he maj or l eague dr aft of pot ent i al new pl ayer s; and t he for mat i on of t he M aj or L eague Basebal l Players Association in 1966. The game’s nuances mak e any obser vat i on a mul t i -l ayer ed one. The ball and strike count on a particular batter may de- t er mi ne t he k i nd of pi t ch t hat i s del i ver ed, and t hat , al ong with the comparative strength of hitter and pitcher, will have a gr eat deal t o do wi t h wher e t he pl ayer s posi t i on t hemsel ves in the field. We gat her t oday as l abor l awyer s, spor t s l awyer s, l aw st u- dent s, l aw pr ofessor s, spor t s r epor t er s, spor t s agent s, and as l over s of t he game t hat t he N ew Yor k Ti mes i n 1971 dubbed “t r ul y i mmor t al .” As Pr ofessor Goul d r emi nds us, we gat her i n a t i me of t ur moi l . The chal l enges faci ng pr ofessi onal baseball today are many-fold and multi-facet ed: t he pr obl em of hyper -speci al i zat i on of pl ayer s; t he monument al expansi on of t he number of t eams; t he never -ending litany of increasingly compl ex st at i st i cs used t o eval uat e and “val ue” pl ayer s, hi t- ters, and pitchers; the continuing saga of illegal, performance- enhanci ng dr ugs; t he effect s of l egal i zed and i l l egal spor t s gambling on the game; t he st agger i ng economi cs of new st a- dium construction; the expansion of the draft system on an in- t er nat i onal l evel ; and t he pr essur e t o r eadj ust r evenue shar- i ng among t eams and pl ayer s. These chal l enges ser ve as t he backdrop as the Players’ Association (“MLBPA”) and the L eagues commence t he pr ocess of negot i at i ng a new col l ect i ve bar gai ni ng agr eement t o gover n our “nat i onal past i me.” These chal l enges come t o a boi l dur i ng a t i me of unpr ecedent ed pr osper i t y. Whi l e many ot her for ms of l i ve, publ i c en- ter t ai nment and di ver si on suffer , pr ofessi onal basebal l has become mor e and mor e pr ofi t abl e. Our count r y may be en- t r enched i n r ecessi on; never t hel ess, pl ayer s ear n mi l l i ons and t eams ear n bi l l i ons. St . John’s L aw School does not and cannot come t o di scuss these challenges in a vacuum. Consonant with our mission, we ar e Cat hol i c, Vi ncent i an, M et r opol i t an, and Gl obal . We are suffused with the charism of St. Vincent de Paul, and with SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

166 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 speci al focus on t he pl i ght of t he poor and t he oppr essed. That char i sm i s woven i nt o al l t hat we do as an academi c i n- st i t ut i on. I t i s t he fl ame t hat we hope t o k i ndl e i n al l our st u- dent s as we send t hem out i nt o a mor e and mor e chal l engi ng and compl ex wor l d. N ei t her t he L abor Rel at i ons & Empl oyment L aw Soci et y (“LRELS”) nor the Entertainment, Arts & Sports Law Society (“EASL”) are strangers to tackling issues of human rights, abuses, and societal power imbalances head-on. L ast year , L REL S convened T he T heol ogy of Wor k and the Di gni ty of Workers Confer ence. 1 In 2010, EASL co-sponsor ed a symposium on t he et hi cal and l egal concer ns of i l l egal musi c downloading: Reaching Acc[h]ord – Resol vi ng Di sput es Over M usi c Downloading.2 For many year s, our st udent s have pr oduced maj or paper s on t he subj ect s of t oday’s confer ence, especi al l y in our Advanced Labor Law, Sports and Entertainment Law, and di r ect ed r esear ch and advanced wr i t i ng cour ses. The st udent s i n EASL r enewed ever yone’s i nt er est i n addr essi ng t he chal l engi ng myr i ad of l abor , empl oyment and soci al just i ce i ssues faci ng pr ofessi onal baseball when, during the Society’s participation in a Mock MLB Salary Arbitration Compet i t i on, t hey wer e exposed t o some of t he pr act i ces of t he L at i n Amer i can dr aft pr ocess. That exposur e became t he spark that inspired this gathering. With the enthusi ast i c col- l abor at i on of t he Cent er for L abor and Empl oyment L aw and t he st udent l eader s of L REL S and EASL (t hr ee of whom ar e on the Conference Plenary Panel), that spark was nurtured i nt o t oday’s confer ence. We wel come our pr est i gi ous and dedi cat ed al umni , Gene Or za and Jeff Fannel l , who cont i nue t o answer al ma mat er ’s cal l t o gi ve gener ousl y of t hei r t i me, t al ent , and ment or i ng and t eachi ng r esour ces. We ar e pr i vi l eged t o have est eemed member s of t he medi a, t he spor t s agency communi t i es, and t he M aj or L eague and t he Pl ayer s Associ at i on wi t h us t oday. Thei r voi ces wi l l i nsur e t hat vi t al const i t uent s needed for our di scussi on t o be meani ngful l y i ncl usi ve wi l l be r epr esent ed. We wel come our fel l ow academi cs fr om t he N YU and t he Se- t on H al l L aw School s, and fr om M anhat t an Col l ege. Above al l , we ar e pr i vi l eged t o have Pr ofessor Goul d l ead us on our j our ney t hr ough t hi s age of “pr osper ous t ur moi l .”

1. 50 J. Cath. L. Stud. 1 (2011) 2. Unpublished. SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 167

Bill has been a wonderful and inspirational friend of St. John’s. In 1968, Professor Gould launched his stellar teachi ng career; he taught at Detroit’s Wayne State University, Dave Gr egor y was a seni or at Sacr ed H ear t H i gh School , and t he Det r oi t Ti ger s won t he Wor l d Ser i es for t he fi r st t i me si nce 1945. We di d not put t hese pi eces t oget her unt i l t he summer of 1984; that summer, Gould was the international labor law star at Stanford and a distinguished featured speaker at an i nt er nat i onal l abor confer ence at Oxfor d U ni ver si t y; Gr egor y was an attendee, and an associate professor at St. John’s. On January 31, 1992 at a labor confer ence at St et son L aw School , Gr egor y ask ed Goul d what pol i ci es L abor Secr et ar y Goul d would pursue in the Hillary Clinton administration. Someone must have been listening. On April 24, 1996, NLRB Chair- man Goul d spok e t o a st andi ng r oom audi ence at St. John’s. In January, 1997, Gregory chaired the Labor Law Section of t he nat i on’s l aw pr ofessor s, and he r efer eed t he char ged debat e bet ween Chai r man Goul d and Pr ofessor Ri char d Ep- st ei n. Bi l l has been a feat ur ed l uncheon speak er for t wo maj or international confer ences sponsor ed by St . John’s and chai r ed by Gr egor y, at t he U ni ver si t y Col l ege Dubl i n Jul y 22, 2000 and at Cambridge University this past July 20-22. We wel come and we honor t hi s gr eat fr i end of St . John’s, t he wor l d’s l eadi ng academi c aut hor i t y on labor relations and pr ofessi onal spor t s. H i s book i s a mast er pi ece, r efl ect i ng a l i fet i me of l ove of t hi s wonder ful game. But , mor e i mpor t ant , Bill is the consummate teacher because of his humanity, compassi on, and concer ns for t he l east amongst us. And, perhaps most of al l , t hi s deepl y evocat i ve book r efl ect s t he deep l ove of Bi l l ’s par ent s for t hei r pr ecoci ous bal l -pl ayi ng son, t he l ove that he so manifestly passes on to his children and grandchil- dr en. Thi s book i s a beaut i ful and compel l i ng l ove st or y on many levels, a labor of love by this great public servant, bril- l i ant t eacher , pr eemi nent schol ar , t he H onor abl e Wi l l i am B. Gould, I V. Fi nal l y, we t hank ever yone for your at t endance and act i ve participation.

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168 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2

ST. JOHN’S UNIVERSITY SCHOOL OF LAW SYM POSI UM

November 18, 2011

The one const ant t hr ough al l t he year s . . . has been baseball. America has rolled by like an army of steamrollers. It’s been erased like a blackboard, rebuilt, and erased again. But baseball has marked the time. This field, this game, i s a par t of our past . I t r emi nds us of al l t hat once was good, and i t coul d be agai n. Ohhhhhhhh, peopl e wi l l come, Ray. Peopl e wi l l most defi ni t el y come. FI ELD OF DREAMS (Universal Pictures 1989)

DEAN MICHAEL SIMONS: Good mor ni ng ever yone. M y name i s M i k e Si mons. I ’m t he Dean her e at St . John’s. I t ’s my pl easur e t o wel come you t o St . John’s and t o t he Bel son M oot Cour t Room. I t ’s al so my pl easur e t o wel come you on behal f of not j ust St . John’s U ni ver si t y but our Cent er for L a- bor and Empl oyment L aw, our St udent L abor Rel at i ons and Employment Law Society, our Student Entertainment Arts and Sports Law Society, and all of our cosponsors, including t he N YU Cent er for L abor and Empl oyment L aw. Thi s i s an apt t i me for t hi s confer ence on l abor r el at i ons and t he fut ur e of basebal l . The N BA i s i n t he mi ddl e of a shut down because of l abor st r i fe. The N FL had i t s own l ock out over t he summer . The N H L t ook year s t o r ecover fr om i t s lockout back in 2005. And yet baseball just is wrapping up its wi nt er meet i ngs in the midst of what has been more than 15 year s of r el at i ve l abor peace. Thi s book , “Bar gai ni ng wi t h Basebal l ,” t el l s a st or y not onl y about t he l ove of basebal l but about how that labor peace came about. Thi s i s al so an apt pl ace for t hi s confer ence, this gathering of labor and employment law scholars. I can’t say it’s an apt pl ace for a gat her i ng of basebal l l over s. Queens has not been t he best pl ace for basebal l over t he l ast coupl e of year s, but St. John’s has been a fantastic place for labor and empl oyment law and entertainment and sports law. What my col l eague and fr i end, Davi d Gr egor y, has bui l t over hi s 28 year s her e, and i n t he l ast coupl e year s wi t h t he Center for Labor and Employment Law, has turned St. John’s i nt o a l eader i n t hi s ar ea. We have a ver y act i ve St udent L a- bor Rel at i ons and Empl oyment L aw Soci et y, a ver y act i ve Student Entertainment Arts and Sports Law Society, and a SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 169 bur geoni ng I nt el l ect ual Pr oper t y Depar t ment . And I ’m pr oud to say starting next year a new program in International Sports Law, which will help make St. John’s a leader in that field as well. I t ’s a pl easur e for me t o wel come you al l her e t hi s mor n- i ng. I t ’s al ways a pl easur e for me t o be i n t he Bel son M oot Cour t Room i n t he pr esence of our benefact or and my fr i end Jer r y Bel son. And I ’m l ook i ng for war d t o an engagi ng day of i nt er est i ng conver sat i ons about l abor , spor t s, and basebal l . Thank you and wel come ever yone. PROFESSOR DAVID GREGORY: Good mor ni ng. I ’m Davi d Gr egor y. I feel l i k e a weddi ng pl anner . Thi s i s our t hi r d maj or confer ence i n t he cal endar year . I t ’s been t he best year of my now cl ose t o 30 year s at St . John’s, fr om at l east where I’m sitting. I thank all of you for being with us today. I have the great privilege of introducing Bill Gould, but first t he per son who r eal l y has gi ven us a gr eat syner gy i n- t er nat i onal l y and i s t he l abor and empl oyment l aw equi val ent of E.F. H ut t on; when Sam Est r i cher speak s, peopl e l i st en. Two year s ago Sam ask ed me i f we woul d be wi l l i ng t o co- sponsor some of our pr ogr ams wi t h N YU L aw School (wher e he i s t he bel oved Dean of t he Gl obal L abor and Empl oyment L aw academi c communi t y). Of cour se, I i mmedi at el y sai d yes. I ’ve wor k ed wi t h Sam si nce I came t o N ew Yor k i n 1982 t o begin teaching at St. John’s. He was the chair of the City Bar ’s L abor and Empl oyment L aw Commi t t ee. I was a r ook i e and he quickly became my intellectual big brother in so many ways. Thi s past Jul y we t ook our pr ogr am t o Cambr i dge U ni- ver si t y; empl oyment di sput e r esol ut i on spar k ed a r emar k abl e gathering. I ’ve ask ed Sam t o say a few wor ds. Sam i s al ways t hi nk i ng and seei ng over t he hor i zon, so I ’ve ask ed hi m t o come as our seni or par t ner i n l abor and empl oyment l aw t o t el l us a bi t mor e about what he’s up t o and what he sees over t he hor i zon. So, Sam, t hank you so much. PROFESSOR SAMUEL ESTRICHER: David gave me what seemed t o be a l ar ger r emi t t hat I t hi nk I shoul d exer- ci se. You ar e her e t o hear Bi l l Goul d speak on basebal l . I have a l i t t l e bone t o pi ck wi t h t he Dean because he sai d t hat Queens has not been a good pl ace for basebal l . N ow, my wi fe and I have never l i ved i n Queens, but my wi fe i s a di ehar d, passi onat e fan of t he M et s. Bei ng a fan for t he M et s i s a l i t t l e bit like being a national in one of these tiny little principali- ties that always get dest r oyed whenever t he war comes. I t ’s SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

170 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 terrible. I mean it’s punishment, but it’s also loyalty. That’s a virtue that I’d like to further in myself, and she has a great deal of. Queens has been l oyal . Queens i s t he home t o t he gr eat est team in baseball. I s i t gr eat because i t wi ns al l t hese games? N o, i t ’s gr eat because i t ’s a fi ght er . I t ’s l i k e t he ol d Br ook l yn Dodger s, t hey’r e fi ght er s. I t ’s r eal l y easy when you buy al l the high talent and you bring them to New York and you name a cook i e bar aft er them. That’s just the easy path. The hard path is to do it without money, to do it without a great stadium, to do it without being in a big market. That’s the har d pat h and t hat ’s wher e your met t l e get s st r engt hened and t est ed. So t hat ’s t he bone I have wi t h t he Dean. I have a bone t o pi ck wi t h Davi d. I l ove Davi d and my bone i s not wi t h Davi d, i t ’s r eal l y wi t h God because God seems t o have made me Davi d’s bi g—he said his intellectual— hi s bi g br ot her , hi s i nt el l ect ual bi g br ot her . I t woul d suffi ce for me had he made me his basketball playing big brother and he coul d have l eft t he i nt el l ect ual i sm for someone el se. I mean i t j ust goes so far , t hi s i nt el l ect ual gr owt h, when i t ’s not accompani ed by ot her aspect s of gr owt h. N ow, my wi fe woul d say t he pr obl ems, Sam, ar e not j ust physi cal , but we l eave t hat for anot her t i me. I am her e because I l ove t he game of basebal l . I have got- t en t o k now Gene Or za over t he year s. H e’s a gr eat fi gur e i n t hi s spor t and I ’m gl ad he’s now been l i ber at ed t o do ot her things. I t hi nk t hat ’s ver y good. Ther e ar e ot her peopl e i n t he audi ence t hat I k now ver y wel l , i ncl udi ng my col l eague on t he L abor Cent er Boar d Ei sner , Gene Ei sner . I ’ve k nown Gene Ei sner for a ver y l ong t i me. I ’ve al so k nown Bi l l Goul d for a ver y l ong t i me. I told him just yesterday that I was at Cornell ILR. I think it was called Col l i ngswood Readi ng Room, and we wer e al l owed t o smok e t hen. I t ’s a gr eat t i me t o be al i ve. And, you k now, you di dn’t have t hi s access t o Xer ox machi nes or t he pr i nt but t on, so we had t o get t hese book s. I r emember r eadi ng Wi l l i am B. Goul d I V, wr i t i ng about r ace i n t he l abor movement and wr i t i ng r e- al l y good st uff. One, I t hought he must be unbel i evabl y ol d and, two, he must be unbelievably rich because who has a ro- man four aft er hi s name? [Laughter] So I was ver y eager t o meet hi m. We di d meet i n Phoeni x. We wer e on an ABA pr ogr am t oget her , and I ’ve been an ad- SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 171 mi r er ever si nce. The r eal r eason I ’m her e i s because of Davi d. I ’m not gi l d- ing the lily. David and I are both Irishmen so somet i mes we have a tendency to do this. But David is, in my view, the model of what a l aw pr ofessor shoul d be. M ost l aw pr ofessor s think it’s a cushy job. They come into the building; they write t wo or t hr ee ar t i cl es a year t hat nobody r eads. They have no t i me for t he st udent s because t hey want t o t each t he st udent s high theory, which nobody needs, which nobody understands even i f t hey needed i t . And t he st udent s ar e t hen l eft t o dr i ft for t hemsel ves i n t he mar k et pl ace. This is a basic model of moder n l egal educat i on, but t hat i s not Davi d. Davi d car es about t he fi el d, wr i t es i n t he fi el d, and most i mpor t ant l y car es about t he st udent s. And I ’ve seen this a number of years now. This is a truly remarkable per- son. He’s having an impact on the field through his sponsor- i ng and ment or i ng of al l t hese young peopl e who ar e goi ng t o be i n t he fi el d. So i t ’s r eal l y wi t h a gr eat deal of pr i de t hat I share this podium with David and all of you. PROFESSOR GREGORY: Thank you Sam. I t el l ever y- body at ever y chance I have that Sam’s most enduring work is goi ng t o be hi s r emar k abl e t al k t o t he Amer i can I r i sh H i st or i- cal Soci et y some year s ago on M i chael Qui l l , on whom he wr ot e hi s mast er ’s t hesi s at Cor nel l . Ther e was not a dr y eye in the house. That’s Sam’s r eal l egacy. The par adi gm exampl e her e i n-house of someone who has a t r ue vocat i on and who l oves hi s wor k i s Joe Gagl i ano, an ad- j unct pr ofessor who i s wor k i ng mor e t han ful l t i me sever al t i mes over . Joe sang “Whi ch Si de Ar e You On?” i n St . Thom- as M or e Church for Cardinal Edward Egan on March 19, when t he Car di nal cel ebr at ed t he cl osi ng M ass of our T h eol o- gy of Work and the Dignity of the Workers’ Confer ence. I t i s Joe who r eal l y put some of t he pi eces t oget her for t oday’s confer ence, and I ’d l i k e hi m t o say a few wor ds. PROFESSOR JOSEPH GAGLIANO: Thank you very much, David. You might want to stand for this. [Singing the N at i onal Ant hem] “Oh, say, can you see by t he dawn’s ear l y light what so proudly we hailed at the twilight’s last gleam- i ng? Whose br oad stripes and bright stars, through the peri- l ous fi ght , o’er t he r ampar t s we wat ched wer e so gal l ant l y st r eami ng? And t he r ock et ’s r ed gl ar e, t he bombs bur st i ng i n air, gave proof through the night that our flag was still there. Oh, say does that Star-Spangl ed Banner yet wave o’er t he SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

172 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 l and of t he fr ee and t he home of t he br ave?” Pl ay bal l ! I ment i oned t o fol k s l ast ni ght t hat my most pr oxi mat e connect i on t o basebal l i s t hat I act ual l y di d deal with baseball in Queens. I had the privilege of singing the Nat i onal Ant hem for t he M et s for a number of year s. When- ever t hey had nobody famous, t hey cal l ed me. I t was a wonder ful , wonder ful exper i ence. That was t he cr ux—t hat was r eal l y t he ful l scope of my connect i on, ot her than being a fan, until I started teaching here at St. John’s and had the blessing, truly, to work with the students in our Entertainment, Arts, and Sports Law Society as their faculty moderator. They’ve taught me a lot about baseball. And t hey’r e t r ul y a wonder ful gr oup of st udent s who ar e ext r emel y dedi cat ed. I t i s t hey who put i n al l t he wor k . I j ust hel ped them along the way. That’s all. I never can actually fully sum up the amount of gratitude t hat I have for Davi d. I t i s ext r emel y an honor t o be abl e t o teach with David, since David was my pr ofessor . I t ’s har d t o i magi ne because at t he age of 40, you k now, he pr obabl y started teaching when he was nine. Right? And he is an amazing man to work with. He is a colleague that you can col l abor at e wi t h on any and ever y l evel . H e suppor t s and he doesn’t j ust come up wi t h t he i deas but t hen he expands t hem and wor k s t i l l t he end of t he day t o mak e sur e t hat ever y si n- gle detail is in place. It’s always my pleasure. I thank you all for comi ng t oday and on behal f of t he Ent er t ai nment Soci et y I am happy that we can present this panel to you. PROF. GREGORY: St. Augustine says that when you si ng, you pr ay t wi ce. We j ust pr ayed sever al t i mes past t wi ce. Read t hi s book . K en Bel son and I wer e t al k i ng l ast ni ght at some l engt h. The gr eat book s ar e r eal l y l ove st or i es. The gr eat book s t each us about t he t heol ogi cal vi r t ues of fai t h, hope, and charity, about the cardinal virtues of justice, pru- dence, t emper ance, and for t i t ude. Gr eat book s ar e about mor e t han t hei r subj ect mat t er i n t he i mmedi at e sense; t hey’r e about t he t hi ngs t hat r eal l y mat t er . As Gene Or za put i t r emar k abl y wel l when he was her e i n M ay, “Val ue most t he t hi ngs t hat you cannot see.” Thi s i s a book t hat appr oaches that high standard. We won’t go near t he fi nal four quest i ons—deat h, judgment , heaven, or hel l —we’l l save t hat for t hose above our pay gr ade. Thi s book i s a l ove st or y about Bi l l and hi s par ent s; i t i s deepl y evocat i ve. When Joe and I we wer e col l abor at i ng on SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 173 our st at ement openi ng t hi s symposi um you coul d hear t he vi o- lins pl ayi ng and t he angel s weepi ng t ear s of j oy. I have k nown Bi l l befor e he k new me. I fol l owed hi s wor k as a j uni or academi c, and t her e we wer e at Oxfor d U ni ver si t y in the summer of 1984. Going back to the Martha and the Vandel l as t heme, you can’t for get t he M ot or Ci t y. When I was a seni or hi gh school st udent i n Det r oi t i n 1968, t he Det r oi t Tigers obliged me by winning their first World Series champi- onship in 23 years, 1945 to 1968. Bill was a junior professor starting a brilliant career, kicking things off at Wayne State University in Detroit. We didn’t know any of this until we met i n t he fal l of ‘84. Bi l l ’s been a t r emendous fr i end of St . John’s. H e’s been wi t h us on sever al occasi ons. H e’s k eynot ed t wo maj or confer ences for me, one at Dubl i n L aw School i n Jul y of 2000, and most recently Cambridge University this past July. Can Bill Gould follow Bill Gould? This was the question. I’m thinking, “There is no way.” At the Dublin conference he talked about his ancestor who swam out to a Union navy ship and t hen embar goed goods off t he coast of I r el and dur i ng t he Civil War. He kept a journal and ultimately published it. Bill read from that journal before it became a book; a remarkable st or y. M y wi fe Gar r i s, who had been at bot h confer ences, sai d at t he July conference that Bill really did trump his original t al k . N ow t he quest i on i s can Bi l l go t hr ee for t hr ee? For t he l aw st udent s i n t he audi ence, r ead t he foot not es. Foot not e one, news t o me whi ch I ’ve never hear d befor e, Bi l l has a for- bear er on hi s mom’s si de who pl ayed for t he N egr o l eagues. BARGAINING WITH BASEBALL is a remarkable book. It’s a love story. And I’m delighted that Bill is with us. Without further ado, Bill Gould. MR. WILLIAM GOULD: Thank you. Thank you very much, Dave, and thank you t o Dean M i chael Si mons and al so Pr ofessor Gagl i ano. H ow can we t op t hat ? What a wonder ful rendition and how important it is to sing and to, as in his case, si ng so wel l . And, Sam Est r i cher , i t ’s gr eat t o see you her e. Sam i s someone I ’ve k nown over t he year s. Dave Gr ego- r y and I al so go back a number of year s t oget her . I r emember meet i ng Dave at St anfor d L aw School as wel l and then, as he indicated, in the 1990’s to be invited by St. John’s L aw School t o be her e wi t h Basi l Pat t er son, one of your di st i ngui shed gr aduat es, as wel l as Gene Or za. M ost r ecent l y, SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

174 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2

I was invited to this wonderful conference that Dave put to- get her i n Cambr i dge i n t he U ni t ed K i ngdom agai n demonst r at es how Dave has done a fabul ous job her e at t he St . John’s Law School. And I am r eal l y humbl ed and honor ed t o be par t of your pr oceedi ngs her e. What I want to talk to you about today is what I talked about i n l ar ge par t i n t he book , t he way I ’ve seen t he game of basebal l i n par t i cul ar . The cont ext of spor t s gener al l y evol ved si nce 1946 through this year, 2011. The book talks about the ear l i er year s, t he fi r st 70-pl us year s befor e, as I say i n t he pr eface, I came i nt o t he wor l d of basebal l . And I r eal l y began wi t h t he wor l d of basebal l t hat sweet summer of 1946 when a l ot of t hi ngs happened t o me per sonal l y and t o basebal l generally that have had an important impact on me and baseball i n t he year s t hat fol l owed. That summer , for what ever r eason, when our four t h gr ade class let out a bunch of us went down to the ball field and our mot her s pack ed our sandwi ches ever y day and we pl ayed baseball all morning and all afternoon, all summer, every day, with no uniforms, with no equipment rather than a couple of bat s and a coupl e of bal l s, one or t wo bal l s. The guy who had his own ball was the most powerful and popular guy around. Ther e wer e no uni for ms and no umpi r es, so t hat t he game was very much—as a Red Sox fan I al ways l oved good hi t t i ng and t he game was ver y much sk ewed t owar ds hi t t i ng because no umpi r es, no cal l st r i k es. And i t wasn’t quite like it was for a period in the 1880’s and 1890’s when the hitter could call for the kind of pitch he wanted, but you waited for your pitch and onl y peer pr essur e for ced you t o swi ng at somet hi ng t hat might be a little less suitable from your perspect i ve. We had gl oves. We l eft our gl oves, as t he maj or l eaguer s did until the rules changed in 1953, on the field. The field, t her e wer e no uni for m di st ances bet ween t he bases. The bases wer e wher e t he gr ass was t hi n, wher e t he gr ass was wor n out , and no measur ement . And t he cat cher , t he cat cher was t he guy on your t eam who t ook t he bal l on one bounce. We had no equi pment for t he cat cher . We l oved i t . We pl ayed ever y day and we r ead about i t and l i st ened on t he r adi o; not on t el evi si on because onl y t he r i ch peopl e had t el evi si on t hat year of 1946. And t her e was one guy down at t he end of t he bl ock whose pl ace I woul d be abl e t o vi si t fr om t i me t o t i me, when I saw a game or t wo on t el evi si on t hat year . I t wasn’t unt i l ‘47 when t el evi si on became mor e popu- SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 175 lar. The wonderful biography of Willie Mays chronicles in de- t ai l t he advent of t el evi si on and how t el evi si on changed t he game. But t he r adi o, t he r adi o cr eat ed i mages i n our mi nds about that season of 1946, about the great Ted Williams. And my father who, as Dave sai d, pl ayed such an i mpor t ant r ol e i n this and was not interested in baseball at all, but he indulged me and when he consol ed me when Wi l l i ams, as he r ar el y di d, st r uck out when t he bases wer e l oaded t o me and sai d t o me, “It has happened t o t he Babe al so.” So he had been i n t hat period and that made me—it didn’t make me feel particularly gr eat but i t made me feel a l i t t l e bet t er . 1946 was the year that players, the great players were comi ng home fr om t he war . And, as you k now, FDR had decr eed t hat basebal l shoul d cont i nue dur i ng t he war because of t he war mor al e. So suddenl y you had many pl ayer s comi ng back. Greenberg had arrived in the fall of 1945 but Williams, DiMaggio, and Musial were all coming back in ‘46. I don’t t hi nk we appr eciated the full impact of this until the summer went on. What we didn’t realize that summer of 1946 was that not onl y wer e we l ear ni ng about t hi s game of basebal l and bei ng dr awn t o i t and bei ng exci t ed about i t and feel i ng passi onat e about i t because of i t ’s on t he fi el d di mensi ons, but t hen off t he fi el d di mensi ons wer e devel opi ng t hat ver y year whi ch have had an impact on the way in which the game has gone in these 65 years subsequent to that sweet summer of 1946. One, Jack i e Robi nson, Br anch Ri ck ey si gned Jack i e Robi nson in 1946 and Dodgers assigned him to the Montreal Royals and we woul d r ead about hi m as he came t o N ew Jer sey t o pl ay t he Jer sey Ci t y Gi ant s and t he N ewar k Bear s. Jack i e has been wr i t t en about ext ensi vel y; what an ex- traordinary individual. H e was t he fi r st —not as so many be- lieved until recently the first black player in baseball. Base- ball had a number of black players in the previous century, but the first black player—at least known black player—in t he 20t h Cent ur y. Ther e wer e of cour se a number of t eams that had players who—many of t hem fr om L at i n Amer i ca who wer e l i ght sk i nned and not r egar ded as bl ack . And t eams talked about—Cincinnati, in getting one of its ace pitchers in t he ear l y 1920’s, t al k ed about whet her hi s col or was suffi ci ent t o be accept ed i n t he maj or l eague. Ther e wer e a number of pl ayer s who wer e—I al ways r e- SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

176 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 member my fat her woul d smi l e when some of t he pl ayer s wer e r efer r ed t o as I ndi ans. Wel l , maybe some of t hem ar e Indians. But Robinson was the first acknowledged bl ack player in the 20th century. It had an enormous impact, of cour se, on soci et y, t he wor l d. Br own v. Boar d of Educat i on 3 of 1954 fol l owed Pr esi dent Tr uman’s desegr egat i on of t he ar med for ces i n t he year aft er Robi nson came i n 1948. Some of t he t hi ngs t hat I say in this book about baseball in t he wak e of Robi nson r emi nd me a l i t t l e bi t about t he mi r r or i mage, I t hi nk , of our count r y i n t he wak e of Br own v. Boar d of Educati on; i ndeed, l ook i ng back fur t her , t he passage of t he gr eat post -Civil War amendments whi ch gave r i se t o t he ci vi l rights revolution ultimately in this country. And that is that the actual practice has fallen, in many instances, considerably shor t of t he pr omi ses. M uch has been—somet hi ng has been done for t he N egr o l eague pl ayer s who woul d have been t her e but for discrimination. As Dave so kindly mentioned last ni ght and t oday, one of my for bear er s pl ayed for t he Phi l adel- phia Stars in the Negro league prior to—and is still alive— prior to the war, and was a very important part of that scene. But what came i n t he wak e of Robi nson wer e t he el i t e bl ack pl ayer s. You k now, I poi nt out how t he bl ack s out -hit whi t es i n t hose year s aft er Robi nson, 290 t o 260 some. Wel l , why was that? Because you had only the very top black player s comi ng i nt o t he l eague. And t hen of cour se, as has been so wel l chr oni cl ed i n year s subsequent i n t he 70’s, t her e has been a r et r eat i n some r espect s, a decl i ne i n t he number of black American players playing the game, a decline which is, I think, is attributable to a number of fact or s, some of whi ch ar e not wi t hi n or gani zed basebal l ’s di r ect cont r ol . The r ecr ui t ment of mor e pl ayer s fr om t he col l eges i n r e- cent year s and t he sk ewi ng of col l ege schol ar shi ps, whi ch hel p t he di spr opor t i onat el y poor , and di spr opor t i onat el y minority t owar ds t he bi g r evenue spor t s l i k e foot bal l and bask et bal l and not basebal l . And t her e have been year s when t he St an- ford team, which I watch, has not had one black player on the fi el d. And so one of t he avenues for r ecr ui t ment i s r esponsi bl e for t hi s decl i ne, and st i l l t he pr obl em of fr ont l i ne l evel , emer gi ng of t op posi t i ons, st i l l i s one t hat i s wi t h us ever si nce Frank Robinson became the first black manager in 1975. Still in this very year, 2011, with the managerial vacancies

3. Brown v. Bd. of Educ., 347 U.S. 483 (1954). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 177 occur r i ng, we don’t see one Afr i can Amer i can bei ng consi der ed for t hem even t hough DeM ar l o H al e, who has sur vi ved t he very hazardous occupation of being a third base coach in Fenway Park; ask Rene Lachemann and Wendell Kim and Dal e Sveum hi msel f, who i s bei ng hi r ed t hi s year, about him and about t hat posi t i on. And DeM ar l o H al e, bei ng a bench coach, not even on anybody’s r adar scr een t o be hi r ed. So we’ve come some di st ance but t her e i s much di st ance t o go i n t he wak e of Robi nson, who came on t he scene t hat year in 1946. Then he came t o t he Dodger s t he fol l owi ng spr i ng and my—I came home fr om school and my fat her , who had no interest in baseball, we sat down at the dinner table and he sai d, “I hear Robi nson k nock ed one i n t oday.” And I was absolutely stunned by that. I, you know, “Dad, you don’t have any i nt er est i n basebal l . You’ve never t al k ed about basebal l .” We fol l owed Robi nson t hr oughout t hat summer wi t h k een i nt er- est , and event ual l y got t o see hi m pl ay i n Ebbet s Fi el d. So t hat was one ver y i mpor t ant devel opment that summer of ‘46 which has had an impact and which continues to be a matter of pol i cy di scussi on t oday. The second was somet hi ng t hat happened j ust a coupl e of mont hs befor e we t ook t he fi el d at t he St at i on Fi el d we cal l ed it, which was right near the New York Long Branch railroad train station. It’s called the Station Field. The distances weren’t all that grand, although I had some difficulty in r eachi ng t hose fences most of t he t i me. I t al k about one i n- st ance i n t he pr eface wher e I was successful , kind of lucky better than lucky, I suppose, than anything else, where I hit one out t her e at t he St at i on Fi el d ont o Thi r d Avenue. But whi l e we wer e pl ayi ng at t he St at i on Fi el d we di dn’t k now about t he M exi can l eague because t he M exi can l eague had come al ong j ust a coupl e of mont hs ear l i er . The M exi can l eague, t he Pasquel br ot her s i n M exi co, ent i ced many of t he big stars. I didn’t realize at that time how close Phil Rizzuto was. I got t o meet Phi l Ri zzut o. Er i c Schmer t z had a 100t h anniversary of Babe Ruth’s birthday at Hofstra University in 1995. I got t o meet Phi l Ri zzut o and I di dn’t r eal i ze at t hi s t i me he was about t o go. H e was about t o go down t o M exi co. Ther e was bot h fr ust r at i on wi t h t he sal ar i es t hat wer e be- i ng pai d maj or l eaguer s and a concern about their security and l ack of pensi ons; no pensi ons, t he bi g concer n al ways of at hl et es who have a ver y abbr evi at ed pl ayi ng car eer . Ver n St ephens, who became so i mpor t ant t o my emot i onal for t unes SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

178 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 in those great pennant races of 1948 and ‘49 when he was with the St. Louis Browns, almost went. But many did go, guys l i k e Fr ed M ar t i n, M ax L ani er of t he St . L oui s Car di nal s, L eft y, M i ck ey Owen—-who I think Gene talked aboutFalse Gene Ei sner t al k ed about l ast ni ght —-who dropped the third st r i k e i n t he 1941 World Series and— MR. GENE EISNER: That may be why he l eft . MR. GOULD: Par don? MR. EISNER: That may be why he l eft . H e may have l eft because of that ‘41 disaster. MR. GOULD: And then finally Danny Gardella, who became the plaintiff in an antitrust litigat i on t hat fol l owed. 4 Because what happened after that summer of 1946 was that t he si r en’s song t hat t he Pasquel br ot her s wer e pl ayi ng t ur ned out t o be mor e ephemer al t han r eal and t he pl ayer s wanted to come back. And baseball said, “No. You can’t come back . You’r e goi ng t o be banned because of t he fact t hat you l eft basebal l . You wer e t i ed t o us by t he r eser ve cl ause and you wer e t i ed t o us i n some i nst ances by cont r act . Ther e was cont r act l i t i gat i on about some of t he pl ayer s l eavi ng i n her e, in the cour t s of N ew Yor k , i n N ew Jer sey. And, wel l , you’r e not goi ng t o be abl e t o come back .” N ow, we pl ayed ever y summer at t he St at i on Fi el d ‘46, ‘47, ‘48, ‘49. ‘49 we suddenly began to hear of these names that we really didn’t know very much about. These ver y names L ani er , Gar del l a, because now t her e was a case i n t he Sout h- er n Di st r i ct of N ew Yor k cal l ed Gar del l a agai nst t he Commi s- sioner, against baseball, suing baseball for a violation of the Sher man Ant i t r ust Act because of t hi s gr oup boycot t engaged in agai nst t he pl ayer s who had gone t o M exi co. A big hurdle for Gardella and those players was the 1922 Supr eme Cour t Rul i ng cal l ed F ed er a l B a seba l l ,5 which had sai d—in which Justice Oliver Wendell Holmes had said that baseball is not a business within interst at e commer ce, wi t hi n t he meani ng of commer ce. And al t hough Just i ce Al i t o has wr i t t en an ar t i cl e r ecent l y 6 sayi ng t hat H ol mes must be un-

4. Gardella v. Chandler, 79 F. Supp. 260 (S.D.N.Y. 1948), r ev’d, 172 F.2d 402 (2d Cir. 1949) 5. Federal Baseball Club, I nc. v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922). 6. Samuel A. Alito, Jr., The Origin of the B asebal l Antitrust Exemp- t i on: Feder al Baseball Cl ub of Bal t i m or e, I nc. v. N at i onal L eague of Pr ofessi onal Baseball Clubs, 34 J. SUP. CT. H I ST. 183, 186 (2009) SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 179 der st ood, t he H ol mes opi ni on i n F ed er a l B a seba l l must be under st ood as i l l ust r at i ve of t he er a i n whi ch he l i ved, H ol mes i s gener al l y r egar ded as been havi ng, l i k e many l aw pr ofessor s and baseball players, a bad day. And the decision has been roundly condemned on the—as t he year s have gone on. When t he Gar del l a case, however , got t o t he Cour t of Ap- peal s, t he Cour t of Appeal s for t he Second Ci r cui t i ssued a di- vi ded opi ni on—t hr ee di ffer ent opi ni ons. 7 Judge H and vot ed wi t h t he maj or i t y t o r emand t he case t o t he di st r i ct cour t for trial in light of the changed economics of baseball which had emer ged si nce 1922. 8 In 1922 of cour se we had t el egr aph. Asi de fr om t he fact t hat t he t eams wer e cr ossi ng st at e l i nes, you had t he games t hemsel ves, whi ch H ol mes sai d wer e pur el y a l ocal fai r , bei ng communi cat ed about acr oss st at e l i nes for pr ofi t , for busi ness. N ow you had r adi o. N ow the plot was thickening. You had r adi o. You had t el evi si on. You had a much mor e l ucr at i ve and complicated situation. The case was remanded and baseball, thinking that there wasn’t a chance that the handwriting was on t he wal l , set t l ed wi t h t hese pl ayer s, notwithstanding the fact that Federal Baseball had not been reversed as a re- sul t of t he Gar del l a l i t i gat i on. I t set t l ed wi t h basebal l , wi t h Gar del l a. And so suddenl y t her e we wer e on t he St at i on Fi el d i n t he summer ‘49 r eadi ng about t hese guys t hat we had never hear d about , who wer e comi ng back . The Dodger s qui ck l y, per haps because of t he exper i ence t hat Gene had i n 1941, qui ck l y deal t M i ck ey Owen t o t he Chi cago Cubs. But some of t hese pl ayer s became pr om- inent. Lanier still had some gas in the tank and some of t he ot her pl ayer s—Gardella, was always—I char act er i ze hi m as light hitting although I’m very careful to note that he had hit a number of home r uns pr i or t o hi s depar t ur e. And so we t hought , as t he r esul t of t hose event s i n 1946 and what fol l owed i n 1949, t hat t her e wer e goi ng t o be bi g changes i n basebal l . L at er we wi l l see t hat ot her s at t empt t o attack Federal Baseball, which has been partially now re- ver sed—and per haps we’l l t al k mor e about t hi s at t he l unch hour—by t he Cur t Fl ood Act of 19989 for maj or l eague l abor management r el at i ons pur poses. We t hought t hat Feder al

7. Gardella v. Chandler, 172 F.2d 402 (2d Cir. 1949) 8. Id. at 407-08. 9. The Curt Fl ood Act of 1998, 15 U.S.C. § 26b (2012). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

180 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2

Baseball itself might be under attack. An individual named Mr. Toolson who played at Bing- hamton and who that, I’m sure probably with a good deal of justification, his career was bei ng t hwar t ed by t he N ew Yor k Yank ees because of t he r eser ve cl ause whi ch r el egat ed hi m t o Bi nghamt on and put hi m at t he bot t om of t he Yank ees’ st ock- pi l i ng of r eal l y good pl ayer s. Thi s i s i n t he per i od of pur e Yank ee hegemony, a per i od i n t he 1950’s when I began t o l ose some interest in baseball as a Boston Red Sox fan, and began t o become ver y unhappy. I n t he 1940’s my fat her was concer ned and even com- plained to our local parish priest in St. James Episcopal Church Father Anderson that, “Bill knows ever y aver age of every player, all 25 players in all clubs, in 16 clubs. This is not a wel l -balanced individual.” But in the 1950’s I began to t ur n t o ot her t hi ngs and became di scour aged by t he scene t hat was emer gi ng i n N ew Yor k t hat M r . Tool son was compl ai ni ng about . And my fat her woul d say t o me fr om t i me t o t i me, “Bi l l , what ever became of basebal l ? What ever happened t o t hi s game you wer e so deep, you fel t so deepl y about ?” I t was hard. The commi ssi oner t al k ed about , you k now, t he need for compet i t i ve bal ance t o mak e basebal l fl our i sh. I n some r e- spect s I t hi nk he’s done a good j ob wi t h t hi s, i n some r espect s, not . And so Tool son t r i ed t o at t ack F ed er a l B a seba l l 10 and he was deni ed on t he basi s of what we l awyer ’s cal l st ar e deci si s i n a per cur i am opi nion by the Supreme Court. And ultimately Curt Flood as well,11 once he was t r aded fr om t he St . L oui s Cardinals to the Philadelphia Phillies, a consignment at that t i me t hat fr om M r . Fl ood’s per spect i ve, gi ven t he domi nance of Cardinals and the subordinate nat ur e of t he second di vi si on run of the Phillies with the development, which was unattrac- t i ve fr om hi s per spect i ve. So we had t he M exi can l eague t hat summer of 1946 whi ch l ed t o a r econsi der at i on of and an ar- gument about whet her F ed er a l B a seba l l in 1922 made good sense. And t hen t he ot her and most i mpor t ant devel opment as well, that is the union; the union. Robert Murphy, a lawyer for t he N L RB, got i nvol ved wi t h some of t he pl ayer s who wer e

10. Tool son v. N ew Yor k Yankees, I nc., 346 U.S. 356 (1953). 11. Flood v. Kuhn, 407 U.S. 258 (1972). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 181 i nt er est ed for many of t he r easons whi ch pr omot ed t he exodus to t he M exi can l eague i n a uni on. And t hey deci ded t o t r y t o or gani ze t he pl ayer s i n t he Pi t t sbur gh Pi r at es because Pi t t s- bur gh was a uni on ci t y. The st eel wor k er s wer e ver y st r ong there and Murphy, I thought, and I guess some of the players thought that thi s was a good pl ace t o begi n. There was a pitcher that summer of 1946 called the Rip Sewel l who t hr ew a pi t ch—a bl ooper cal l ed t he “Eephus pi t ch”—which sailed up into the air and was very difficult to time. Ted Williams in the 1946 All Star game, which was won by t he Amer i can L eague t wel ve t o not hi ng, unl oaded t wi ce i n Fenway Par k and Ted hi t one off Sewel l , what was r egar ded at t hat t i me a r emar k abl e feat . The N ew Yor k Dai l y N ews, which my parents prohibited me from reading but which I coul d see fr om t i me t o t i me when I went t o t he l ocal bar ber- shop, had a gr eat pi ct ur e of t he cour se of Sewel l ’s pi t ch i n t he air, which Williams waited for and then lofted it into the right fi el d seat s wher e al l , vi r t ual l y al l of Wi l l i ams’ many homer s went . But Sewel l was against the union and he was a leader in the Pittsburgh Pirates when the Pirates turned their back on the union in a vote not to strike. The union was squashed in its tracks and the owners then jumped in. Recognizing dis- cont ent , t he basebal l wr i t er s wer e l ater to say that the doxol- ogy now i s t he appr opr i at e way t o l ook at basebal l , t hank t he maj or l eague, fr om whom al l bl essi ngs fl ow. They for med a pensi on commi t t ee whi ch I suppose mi ght have been l ook ed upon as a violation of the Act at that time, but was not pr o- t est ed and t hey wor k ed out a pensi on pl an i n t hat per i od. No union came along until 1954 and no active union was to come al ong unt i l M ar vi n M i l l er became t he l eader of t he un- i on chosen by t he pl ayer s i n 1960’s. A gr eat book by Char l es K oor , 12 on t he devel opment of t he uni on and i n whi ch K oor i n- t er vi ewed not onl y M i l l er but many of par t i es. I t was qui t e a feat for M i l l er t o gai n t he confi dence of many of t he pl ayer s who were saying at that time publicly that collective bargaining has no place in basebal l ; maybe we do need some r epr e- sentations but not collective bargaining. Miller formulates t he fi r st compr ehensi ve col l ect i ve bar gai ni ng agr eement i n basebal l and negot i at es a pr ovi si on for gr i evance ar bi t r at i on

12. CHARLES K ORR, THE END OF BASEBALL AS WE K NEW I T: THE PLAYERS UNI ON 1960-81 (2005). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

182 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 machi ner y, whi ch i s t o become most i mpor tant as this story plays itself out. Meanwhile, as he is moving along, Flood, with union suppor t , i s pur sui ng hi s case, pr ot est i ng hi s t r ansfer . H e l oses hi s t r ade. H e l oses i n t he U ni t ed St at es Supr eme Cour t fi ve t o t hr ee. And t he Supr eme Cour t sayi ng that, “Yeah, maybe i f we wer e t o l ook at t hi s i ssue of whet her basebal l i s an i n- dust r y wi t hi n t he meani ng of t he i nt er st at e commer ce cl ause t hen t he i nt er st at e commer ce pr ovi si ons of t he Sher man Ant i- trust Act, maybe we’d look at it differently, but stare decisis compel s us t o adher e t o F ed er a l B a seba l l because Congr ess has had the chance all this time to change it and it never has.” 13 M eanwhi l e, M i l l er and t he uni on wer e negot i at i ng a number of pr ovi si ons i n t he col l ect i ve bar gai ni ng agr eement . One of t hem becomes t he so cal l ed “t en and fi ve r ul e” whi ch al l ows a pl ayer t o vet o a t r ade, whi ch we hear of qui t e fr equent l y these days, when he has sufficient seniority. Ron Sant o, who r ecent l y di ed, was t he fi r st pl ayer t o i n effect get , t hr ough col l ect i ve bar gai ni ng, what Fl ood coul d not get t hr ough t he ant i t r ust cour t s because of Feder al Basebal l . And i n t he wak e of Fl ood comes t he sal ar y ar bi t r at i on pr ovi- si on, somet hi ng di r ect l y as a r esul t of t he r epr esent at i on made t o t he Supr eme Cour t by t he owner s who sai d, “Your H onor s, col l ect i ve bar gai ni ng i s t he way t o go her e, not through the antitrust laws. We’ll go back to the bargaining table with the players.” And they get the salary arbitration syst em whi ch comes i nt o exi st ence i n 1973, but t hen i n many ways t he most i mpor t ant of t he devel opment s of al l unfol d. A pi ct ur e t hat you her e i n N ew Yor k k now somet hi ng about, James “Catfish” Hunter is employed by the Oakland Athletics, part of these great dynasty athletic teams, very much like Whitey Ford. You know, if you couldn’t get him in the first inning; he’s weak in the first inning. If you couldn’t get him in the first, it’s awfully tough to get thereafter. Char- l i e Fi nl ey, who was owner of t he A’s, a r at her i r asci bl e, di ffi- cul t per sonal i t y deci des t hat he i s not goi ng t o pay H unt er hi s insurance. “I’m not going to provide Hunter an insurance pol- icy, which is in his agreement,” but Finley discovers it’s not to hi s t ax advant age, i n hi s vi ew, t o do so. And t hi s mat t er i s taken to arbitration, the grievance arbitration machinery.

13. Flood v. Kuhn, supra note 11. SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 183

Fi nl ey i s found t o have mat er i al l y br eached hi s cont r act . H unt er becomes a fr ee agent and negot i at es offer s fr om; he’s t he onl y k i d on t he bl ock . H e negot i at es a gr eat offer fr om t he N ew Yor k Yank ees, but al so wi t h t he Yank ees get s a guaranteed contract. And this, in many ways, is more im- por t ant , t he mor e i mpor t ant par t of t he st or y, t he guar ant eed cont r act . I f he becomes i l l or he becomes unabl e t o pl ay or sk i l l s depr eci at e, t hat money has t o be pai d. And t he guar an- t eed cont r act becomes, not because of t he col l ect i ve bar gai n- i ng agr eement or anyt hi ng i n i t but t he pr act i ce t hat emer ges i n t he wak e of H unt er , t he r ul e and not t he except i on i n i ndi- vi dual cont r act s of empl oyment because of ver y t ough agent s l i k e some ar e l awyer s, l i k e some t hat we have her e; Tom Rei ch fr om Pi t t sbur gh who was a l eader i n negot i at i ng t hese t ypes of agr eement s. And then in 1975 Andy Messersmith and Dave McNally chal l enged t he owner s’ vi ew t hat even when your cont r act expi r es as a pl ayer , pl ay out your opt i on year , you can’t go el sewher e. 14 Why? Because you’r e our s. You’r e r eser ved t o us because of t he r eser ve cl ause. What about t he Bi l l Goul d who wanted to play baseball but now is 75-year s-old and he’s no good t o anybody? N o, i t doesn’t mat t er . H e’s our s for l i fe, whet her he’s 75-year s-ol d or 25-year s-ol d. And so Pet er Sei t z, the arbitrator who ruled in the “Catfish” Hunter case 1975,15 rules that when the players play out their option that their contract is at an end. And, if they do not negotiate another agr eement , t hey ar e fr ee t o bar gai n wi t h ot her t eams. N ow, t he owner s di dn’t even want t o open t he camps t he fol l owi ng year i n 1976. Bowi e K uhn or der ed t hem t o open t he camps. They wer e i n a gr eat per i od of uncer t ai nt y. They final l y negot i at ed a col l ective bargaining agreement in the summer of 1976 which has, in basic broad parameters, really remained the situation that we deal with in basic broad terms t o t hi s ver y day. You k now, Fi nl ey’s i dea and t he i dea of a few aber r ant s was, “H ey, l et t hem al l become fr ee. See how t hey can mak e out on t hei r own.” You k now, l i k e Br ’er Rabbi t . “I wi l l save you. We can onl y al l ow peopl e t o become fr ee aft er t hey have

14. The ar bi t r at i on of t hat i ssue was l at er affi r med by t he Ei ght h Ci r cui t Cour t of Appeals. Kansas City Royals Baseball Corp. v. Major League Baseball Players Assoc., 532 F.2d 615 (8th Cir. 1976). 15. Professional Baseball Clubs, 66 Lab. Arb. Rep. (BNA) 101 (1975) (Sei t z, Arb.). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

184 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 si x year s of seni or i t y. L i mi t t he number of peopl e who go on t he mar k et .” Fi nl ey want ed t hem al l t o go t her e. K oor t al k s about this in his book. And then this sets off what we think of as a kind of thirty- year s-war bet ween M aj or L eague Basebal l and t he uni on; st r i k es and l ock out s ever y t i me t he col l ect i ve bar gai ni ng agr eement expi r es. Ever y si ngl e occasi on st r i k es and l ock- out s, and t he basi c t heme i s t hat t he owner s ar e t r yi ng t o r e- capt ur e some of what t hey l ost i n 1975. We come t o 1994- 1995, t he mot her of al l st r i k es, wher e t he N L RB i nt er vened i n unfai r l abor pr act i ce pr oceedi ngs under a pr ovi si on that had not been used ver y much i n pr evi ous year s. I n t he year s befor e t he Cl i nt on boar d was t her e, goes i nt o Feder al Di st r i ct Court utilizing Section 10-J and pet i t i ons t hen Judge So- t omayor , now Just i ce, t o gr ant a pr el i mi nar y i nj unct i on against the owner s for t hei r changes, fr ee agency and sal ar y arbitration.16 And t he pl ayer s r et ur ned t o t he fi el d. The owners accept them. They negotiate, after a year and a half, a coll ect i ve bar gai ni ng agr eement i n N ovember 1996. And t hey have negot i at ed agr eement s ever si nce t hat per i od of t i me peaceabl y, wi t hout any di sput e. Ther e ar e many r easons offer ed for t hi s devel opment i n t he wak e of 1995, and I t hi nk maybe al l of t hem have some per suasi veness. One i s t hat t hey may have, aft er al l of t hi s warfare; which reminds us so much of what is going on today in football and basketball, particularly in basketball today; t hey can st ar e i nt o t he abyss and r eal i ze t hat a l ot of peopl e wer e becomi ng di saffect ed, wer e sk ept i cal , cyni cal about t he game, and t hat maybe t her e ought t o be anot her way t o r e- sol ve t he di ffer ences. And appar ent l y, for t he four t h t i me i n a r ow, t hey wi l l do i t agai n wi t hi n t he next day or so i f r epor t s ar e cor r ect about what ’s goi ng on r i ght now i n t he col l ect i ve bargaining process; 1996, 2002, 2006, and now 2011 in the most r ecent set of negot i at i ons. Pr osper i t y—Basebal l has r evenues t oday al most sevenfol d beyond what baseball had in 1995. The game has prospered and i t has pr osper ed for a number of r easons. Obvi ousl y t he i nt er net i s one of t hem. I t al k ed about how when I was a young st udent at t he L ondon School of Economi cs my fat her

16. Silverman v. Major League Baseball Player Relations Comm., 880 F. Supp. 246 (S.D.N.Y. 1995), aff’d, 67 F.3d 1054 (2d Cir. 1995) (applying § 10(j) of the National La- bor Relations Act, 29 U.S.C. § 160(j)). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 185 would send me the clippings in the mail because he knew that I woul d have a gr eat sense of exci t ement t hat spr i ng wi t h t he Red Sox br eak i ng t o t he t op of t he pack for t he first time in a l ong t i me; Johnny Pesk y at t he hel m. Of cour se i t was not t o be. I t was a ver y shor t l i ved exper i ence. But he r el i gi ousl y sent me those standings and I would then rush to see what mor e I coul d fi nd out fr om t he I nt er nat i onal H er al d Tr i bune, which was a day or so late. The British newspapers usually di dn’t have t he st or i es. Wel l , compar e t hat wi t h now. Si x year s ago, I was seei ng what ’s goi ng on wi t h t he Red Sox when I went down t o a l ocal spor t s bar i n L ondon. I can go downst ai r s t o my computer at the school that I was teaching at and I can learn about what’s goi ng on. I can see si mul at ed games; I can see games on t he i nt er net . Globalization—of cour se gener al l y, t he abi l i t y t o sel l t hi ngs, t o go t o I ndonesi a and Tur k ey and see peopl e wear i ng Yank ee hat s, peopl e who ar e wear i ng U CL A j er seys, who don’t know anything about UCLA, but they bought these hats. And of cour se t he t el evi si on t hat Fal se.br oader , mor e t el evi- sion in Japan in the 1980’s of Major League Baseball. . .that we had her e i n t he U ni t ed St at es t hr ough cabl e. I was seei ng whi l e I woul d t r avel i n Japan, see mor e i n t he 1980’s; so, enor mous changes i n a number of ar eas. Of cour se t he focus of t he Bl ue Ri bbon Commi t t ee, whi ch [M L B Commi ssi oner Bud] Sel i g put t oget her at t he beginning of t hi s cent ur y, was mor e compet i t i on. The N ew Yor k Ti mes sai d—and I ’m goi ng t o quot e t he Ti mes agai n j ust i n a second. I t was r egar ded as t he paper of r ecor d, al t hough not neces- sarily in the respect in which I’m going to quote it. But the Ti mes said that, you know, this idea of a wild card is wrong.17 I t goes agai nst t he i dea. Bud sai d, “Wel l , we’r e not l i k e bas- k et bal l , wher e onl y t he bad t eams ar e not par t of t he post season. We’r e a spor t wi t h wi nner s.” Wel l , you k now, I t hi nk t her e ar e a l ot of things that they’re doing wrong, which are agai nst t he i dea of fai r , compet i t i ve i nt egr i t y, but t her e ar e lots of things obviously that are being done right, which affect s fan i nt er est . Ther e’s mor e money, mor e peace, mor e pr osper i t y. Compet i t i ve bal ance, you k now, t he i dea was t hat i f al l

17. Editorial, Virtual Baseball, NEW YORK TIMES, Sept. 4, 1995, http://www.nytimes.com/1995/09/04/opinion/virtual-baseball.html SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

186 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 t hese fr ee agent s can go fr ee, i t wi l l be l i k e t he 1950’s when of cour se t her e was no fr ee agency and t her e was no dr aft system. And the draft was put in, in part, to say. “All right. We’r e not goi ng t o l et t he Yank ees have ever y M i ck ey M ant l e t hat emer ges on t he same. We’r e goi ng t o l et some of t he ot h- er cl ubs have a chance.” Compet i t i ve bal ance, as I poi nt out in the book, is judged by a number of criteria; winning and l osi ng per cent ages. Teams t hat ar e over .600 and under .400, which presuma- bl y di scour ages i nt er est , much bet t er i n basebal l much bet t er t han ot her spor t s l i k e foot bal l and bask et bal l . Tur nover per- cent age i n t he post season, basebal l i s much bet t er t han t he ot her spor t s. Onl y wi t h r egar d t o t he number of year s t hat a particular team, perhaps because of Kansas City and Pitts- burgh has not been in the postseason is baseball lagging. But here is the interesting thing that comes out through t hi s dat a whi ch i s i n t hi s book . Al l of t hese devel opment s wer e t ak i ng pl ace l ong befor e t he r efor ms wer e pl aced i n t he col l ect i ve bar gai ni ng agr eement whi ch wer e desi gned t o deal wi t h t he pr obl em of uni mpeded fr ee agency and t he Yank ees get t i ng ever ybody because i n t he agr eement s whi ch fol l owed t he st r i k e you get t wo par t i cul ar pr ovi si ons, t he so-called luxury tax.18 Basebal l doesn’t l i k e t o cal l i t t he l uxur y t ax, compet i t i ve bal ance t ax, whi ch i s r eal l y ai med al most excl usi vel y at t he Yank ees. The Red Sox have been caught by i t a coupl e of t i mes. A coupl e of ot her teams have been caught by it. And you can say t hat t he ot her t eams ar e maybe di scour aged or have a j ust i fi cat i on for not seek i ng fr ee agent s by vi r t ue of this tax. Revenue sharing and the luxury tax are placed in t he agr eement s but compet i t i ve bal ance, t he compet i t i ve balance criteria that I’m discussing and that puts baseball in a favor abl e posi t i on vi s-à-vi s t he ot her spor t s exi st ed si mul t a- neous wi t h fr ee agency. We’ve had a mor e compet i t i vel y balanced game si nce t he event s t hat I descr i bed i n 1974 and 1975. N ow, basebal l i s confr ont ed wi t h a l ot of pr obl ems, some of which may be addressed in this coming collective bargaining agr eement , some of whi ch may not . Dr ugs—Pr ofessor H ank Gr eel y at St anfor d L aw School has wr i t t en an ar t i cl e19 which I

18. See generally Luxury tax (sports), WIKIPEDIA, http://en.wikipedia.org/wiki/ Luxury_tax_(sports) (last visited August 4, 2012) 19. H enr y T. Gr eel y, Disabilities, Enhancements and the Meaning of Sports, 15 SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 187 di scussed in the book in detail, talking about how difficult it i s. Thi s i s t he age of enhancement s. We can see t hi s on t he, I don’t want t o have my gr andsons wat ch t he basebal l games, for t unat el y one of t hese ads has not come on when I ’ve I have been t her e wi t h them but I know they must see it. Viagra ads on the baseball games. Thi s i s t he age of enhancement , i sn’t i t , i n many r espect s. Greely has a long article discussing this in detail, but I think, in my view, the business of drugs in baseball has been a scour ge. I t has been a scour ge and i t has been somet hi ng that baseball gradually, primarily through the pressure of peopl e l i k e L ance Wi l l i ams of t he San Fr anci sco Chr oni cl e who wr ot e about Bar r y Bonds i n t he “Game of Shadows” 20 and t he congr essi onal commi t t ees who want ed t o pr een and dance and show off i n fr ont of t el evi si on, but nonet hel ess basebal l began t o move. You k now, basebal l had adopt ed a r efor m i n ear l y 2005 and Congr ess sai d, “H ey, you’ve got t o move again.” And [Major League Baseball Players Association Ex- ecut i ve Di r ect or Donal d] Fehr sai d, “H ey, don’t we have t o see what t he r esul t s of our r efor m ar e?” N o. So t hey negot i at ed ot her changes. N ow, M i chael Schmi dt of t he N ew Yor k Ti mes21—who I sense is not baseball and the union’s a great favor i t e—-maybe t hat ’s how he got di spat ched t o I r aq—-has wr i t t en a l ot of el o- quent , ver y i nfor mat i ve pi eces, I t hi nk , on t he pr obl ems t hat baseball still faces with the testing procedures which are in pl ace. But of cour se t he bi g 500 pound gor i l l a whi ch i s in the back gr ound i s H GH . We’l l see, when t hi s agr eement i s announced. M y sense i s t hat you’r e not goi ng t o see ver y much i n t he ar ea of H GH . You’r e not goi ng t o see much movement . You’r e not goi ng t o get much movement unt i l somebody push- es baseball, as may ultimately be happening now in football, t o move on t hem. N ow, on t he ar ea of dr ugs, I can’t pass t he subj ect wi t hout mentioning the fact that I have offended and angered a guy who I r egar ded as my fr i end over t he year s, Gene Or za, by somet hi ng I have in this book about him which characterizes

Stan. L. & Pol’y Rev. 99 (2004). 20. M ARK FAI NARU-WADA & LANCE WILLIAMS, GAME OF SHADOWS: BARRY BONDS, BALCO, AND THE STEROI DS SCANDAL THAT ROCKED PROFESSI ONAL SPORTS (2006). 21. Articles by Michael S. Schmidt, ht t p://t opi cs.nyt i mes.com/t opi cs/r efer ence/ t i mest opi cs/peopl e/s/mi chael _s_schmi dt /i ndex.ht ml (scr ol l t o t he bot t om of t he page, t ype “baseball” i n t he sear ch box). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

188 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 a posi t i on he t ook , or I t hought he t ook . And he has advi sed me t hat I ’m wr ong and I apol ogi ze t o hi m for bei ng wr ong i n a mischaracterization of his position. H er e I say my mea culpa about him and he said to me, i n a ver y angr y emai l , he sent me an emai l l ast August . I was i n N ew Or l eans at t he t i me I l ook ed at t he comput er . I fel t t hat t hi s was one of t hose t hi ngs you get t o t he mai l , you k now, wher e someone i s sayi ng, “L et ’s i ndi ct t he pr esi dent . L et ’s. . .,” you know. And then I was about to erase it and t hen I not i ced, no, i t ’s t o me. I t ’s me. I t ’s fr om Gene Or za. And he was ver y angr y wi t h me and I apol ogi ze t o Gene deep- ly for mischaracterizing his position. N ow, I sense—I apol ogi zed for t hi s but I sense—but I wi sh I could, in writing this book—i t ’s a l ong book —do this again. I quot e fr om t he N ew Yor k Ti mes about Gene Or za. I t ’s an accur at e quot e. “Gene Or za, t he uni on’s number t wo, deal i ng wi t h pr oposal s about dr ug r efor ms, offer ed t he l ame comment t he ot her day t hat st er oi ds wer e no mor e t han ci gar et t es. Thi s i s t he same M r . Or za,” sai d t he Times, “who sai d l ast year , when t he fi r st year s’ t est r esul t s wer e announced, t he pr obl em was under cont r ol .” 22 This was written in 2005. Now, that’s an accur at e quot e. M r. ORZA: That’s not an accurate statement. . . Mr. GOULD: I di dn’t have t o wr i t e; I di dn’t have t o put this quote in the book, and I clearly, well, Gene didn’t say it, l ook i ng back on i t , I di dn’t have t o pr ovi de t hat quot e t o mak e my poi nt . I f somebody had pr ovi ded a quot e about me; and t her e have been a l ot of quot es about me, I woul dn’t have been upset about it. Gene didn’t say he was upset about it but I’m sur e, as hi s st at ement just i ndi cat es, he i s upset about i t . I di dn’t use good judgment including that quote. Now, big issues in front of us; drugs. I think baseball is goi ng t o be, we’l l see what happens. I don’t k now what wi l l be in this provision. Either having minor league testing on HGH—and as you k now one of t he guys who’s been on t he l eague whose t est ed posi t i ve says, how much of t hi s t her e i s, “I don’t k now.” We don’t k now. But t he r ecor d wi t h r egar d t o st er oi ds does not seem t o be one t hat i nspi r es a gr eat deal of

22. H ar vey Ar at on, At L ast , Sel i g Assumes a Posi t i on of Aut hor i t y, N.Y. TIMES, Jan. 14, 2005, http://www.nytimes.com/2005/01/14/sports/baseball/14araton.html; WILLIAM B. GOULD IV, BARGAINING WITH BASEBALL: LABOR RELATIONS IN AN AGE OF PROSPEROUS TURMOI L 220 (2011). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 189 confi dence. Drafting—t her e wi l l be pr obabl y changes i n dr afting. The maj or l eague owner s ar e deepl y upset and want t o, amongst ot her t hi ngs; t her e ar e many i deas t hat ar e out t her e about changes i n t he amat eur dr aft syst em. One of t hem i s t o pr o- vi de for a so-cal l ed sl ot t i ng syst em wher e t eams cannot exceed offer s. As you may k now, Joe Bor char d, a par t i cul ar offer t hat ’s set for t h. As you may k now, Joe Bor char d, who pl ayed r i ght fi el d for St anfor d, gr eat power hi t t er at St anfor d; as he t ol d me when t he Whi t e Sox came i nt o Oak l and, he sai d t o me, “Peopl e don’t r eal i ze how har d i t i s up her e.” They pai d him five million dollars. They didn’t get anything. Thi s i s t he di ffi cul t y wher e you can’t mak e or at l east i t ’s di ffi cul t t o mak e an est i mat e of a pl ayer . I t ’s much mor e di ffi- cul t t o mak e an est i mat e of a pl ayer’s worth in baseball than i t i s i n foot bal l and bask et bal l wher e t he col l eges—t hi s i s a subj ect unt o i t sel f—ar e a k i nd of a mi nor l eague, shoul d t hey be paying their minor leaguers. And these guys are much mor e pr o-ready than are baseball players. So ther e wi l l be, I t hi nk , some changes i n t he dr aft , and i t may be t hat some of them affect slotting. Revenue sharing— it may be that revenue sharing in basketball, we’ll talk more about basketball at lunch. But it may be t hat i f bask et bal l had some r evenue sharing you wouldn’t have t he Sacr ament o’s and Gol den St at e’s and M emphi s’ and N ew Or l eans’, t he t eams i n economi cal l y per i l ous ci r cumst ances. Bask et bal l has al ways been a weak si st er economi- cal l y because of t he fact t hat some of t he t eams ar e i n per i l ous economi c ci r cumst ances. Revenue shar i ng pr ovi des money t o t eams l i k e t he Oak l and A’s who don’t seem t o be i nt er est ed i n get t i ng anybody t o come t o t hei r games and want t o maybe use i t —maybe this is what Finley was about at various t i mes—use i t as a vehi cl e, t he l ack of at t endance, t o be abl e t o move el sewher e. You may have r ead about what I cal l ed t hem i n t he book t he Oak l and, San Fr anci sco, San Jose fr a- cas. Globalization—wi l l t he dr aft affect gl obal i zat i on? I s t he protocol in Japan, will this be a part of t he col l ect i ve bar gai n- ing process? Will it be? I talk in the book about what might have happened if Matsuzaka had said “I don’t like the deal. I want mor e money. I don’t want Sei bu t o get al l t hi s money. I want mor e money fr om t he Red Sox.” Coul d he have, as M r . Irabu apparently was threatening to do, could he have taken SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

190 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 a di ffer ent r out e? The thing about Japan is that you have players who are t he seni or pl ayer s, t he guys whose car eer s coul d be i n a per i od of decl i ne, l i k e M r . M esser smi t h and M r . M cNally, who say, “You k now, I don’t car e. L et me at t ack t he syst em. I don’t have much t o l ose.” Those guys woul d be l i k el y t o be fr ee agent s under t he pr ot ocol bet ween Japan and t he U ni t ed St at es. So t he onl y guys who ar e i nt er est ed i n at t ack i ng t he posting system which exists between Japan and the United St at es ar e t he up and comer s who ar e l ook i ng t o l ever age t hei r capabi l i t i es and t o become peopl e who can be t r ansfer r ed t o t he U ni t ed St at es once t hei r t eam get s money fr om t he U ni t ed St at es and once t hey, for a per i od of t i me, become avai l abl e t o t he t eam t hat t hei r Japanese t eam chooses. Thus far, baseball has seen and has profited, in their view, fr om t he academy syst em i n L at i n Amer i ca whi ch has been full of abuses. I think Sandy Olsen and others have l ook ed at t hi s and pr ogr ess i s bei ng made t o cl ean up some aspect s of this, but what about Cuba. What about Cuba? Some of us, l i k e mysel f, k now t hat we’r e not goi ng t o l i ve for ever and t he Cast r o br ot her s ar e not goi ng t o l i ve for ever ei t her . And when t he Cast r o br ot her s ar e gone t her e may be mor e of an exodus of ver y t al ent ed pl ayer s fr om Cuba t o t he U ni t ed St at es. What’s baseball going to do? Is it going to try to institute and is it in the interest of the players to institute a draft system of some kind which begins to have applicability internationally? Well, it’s a great game, and it’s a game that has undergone enor mous change si nce t hat sweet summer of 1946. The game was gr eat t hat summer of 1946 for not t he l east of which was that the Red Sox l eft t he Yank ees 17 games behi nd them as they marched on to the pennant, ultimately clinched in Cleveland when the champagne was getting warm and when Williams finally hit his inside the park home run to left field, which brought triumph over the Cleveland Indians one to nothing, with Tex Hughson besting Rand Embry. The game was gr eat t hen. I t ’s changed a l ot . I n many r espect s I t r y t o out l i ne most of t hose t hat —maybe t oo many of t hose— t hat have come t o my at t ent i on over t he year s bot h on and off t he fi el d. I t ’s st i l l a gr eat game. I l ove t he game and I t hi nk I ’l l cl ose on t hat not e. Thank you. PROF. GREGORY: Thank you, Bill. That was quite the t our de for ce. Anot her l andmar k book , t he one I r ead i n t he summer of ‘84 at Oxford, anybody and everybody who’s inter- SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 191 ested in anything international should read it, JAPAN’S RESHAPI NG OF AMERI CAN L ABOR L AW,23 a remarkable book by who el se, Bi l l Goul d. We’r e goi ng t o t ak e a br eak t i l l t en aft er 11:00 and t hen we’l l r econvene for a who’s who pl enar y panel . Just a coupl e of admi ni st r at i ve not es, t he pr oceedi ng t hr ough t he cl ose of pl enar y panel i s bei ng r ecor ded. Thank s t o t he Set on H al l L aw School , t he pr oceedi ngs ar e goi ng t o be published in their Journal of Entertainment and Sports Law. Why Set on H al l , you ask ? Wel l , t her e ar e t hr ee school s t hat ar e r eal l y pr eemi nent i n t he count r y i n t er ms of spor t s, ar t s, and ent er t ai nment . Some say Tul ane, some say Set on H al l , some say Marquette, and Cardozo may or may not be in that l oop. We’r e get t i ng our j our nal l aunched, but we’r e goi ng t o t ak e a page fr om t he pl aybook of Set on H al l , whi ch I t hi nk t he best of t he speci al t y j our nal s. So I t hank Set on H al l for t hei r col l abor at i on and cooper at i on. Thank s t o Set on H al l for helping us out. I ’m goi ng t o i nt r oduce t wo peopl e. Each wi t h a ver y di s- t i nct i ve r ol e. The Pr ovost of St . John’s U ni ver si t y, Dr . Jul i a U pt on. Thi s i s her vi ct or y l ap as t he Pr ovost . At t he end of t he year she wi l l be pr omot ed back t o t he facul t y. And our Dean, as t hough he doesn’t have enough t o do, i s t he chai r of t he sear ch commi t t ee t o sel ect a new Pr ovost . I say pul l a Dick Cheney and cut to the chase. And then Mike will have t wo i mpossi bl e j obs. I mmedi at el y fol l owi ng Dr . U pt on’s r emar k s Jack N ewhouse wi l l be t he pl enar y panel moder at or . Jack i s an execut i ve boar d member of t he L abor Rel at i ons and Empl oyment L aw Soci et y. Jack i s an ent r epr eneur i al fel l ow who mak es good t hi ngs happen. H e i s t he per son who got some of our fi r st maj or speak er s commi t t ed t o t he pr ogr am. I n fact , we did a trial run on September 16, 2010 with Julius Getman pr esent i ng hi s gr eat book RESTORING THE POWER OF U NIONS.24 And, without further ado, with Jack waiting in the wings, Dr. Upton. So thank you. DR. JULIA UPTON: Thank you, David, and welcome ever ybody. I n one of my for mer l i ves I was an el ement ar y school t eacher and i n t hose days we wer e t ol d t o be par t i cul ar- l y at t ent i ve for t eachabl e moment s, moment s when somet hi ng

23. WILLIAM B. GOULD IV, JAPAN’S RESHAPI NG OF AMERI CAN L ABOR LAW (1984) 24. JULIUS G. GETMAN, RESTORI NG THE POWER OF UNIONS: I T TAKES A M OVEMENT (2010). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

192 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 woul d happen and i t was j ust t he per fect oppor t uni t y t o del ve in and explain something to the childr en. Wel l , i f t her e ar e t eachabl e moment s t hen t her e ar e al so l ear nabl e moment s and hi st or i cal l y t her e i s pr obabl y no mor e l ear nabl e moment , or t eachabl e moment , for t he i nt egr at i on of spor t and l aw t han t he l ast t wo week s. So i t i s for t ui t ous that Dave and your wonderful co-chairs have arranged this confer ence. For esi ght , i nsi ght , pr ovi dence, what ever has br ought us t oget her . I al so t hi nk t hat t her e i s no bet t er oppor t uni t y or mor e time when a university is most itself than when it is exchang- ing ideas and peopl e ar e l ear ni ng fr om each ot her and shar i ng wi t h each ot her t hei r wi sdom, t hei r i nsi ght , and t hei r i deas. And t her efor e I wel come you t o t hi s t eachabl e moment and this moment when the university, our university is most what it is called to be. Enj oy your t i me t oget her . I t ’s k i nd of i ncongr uous t hat you woul d t hi nk of me i n t he mi ddl e of spor t and l aw. I ’ve of- t en t ol d peopl e I never once even t hought about l aw school . I mi ght be one of t he onl y peopl e who di dn’t t hi nk about l aw school in my youth. But my sport was ballet, for sure, and maybe tennis lust from afar. I grew up in Forest Hills, which in that once upon a time was the tennis capital of the United St at es. So i t ’s not exact l y my maj or bai l i wi ck , apar t fr om couch coaching the basketball team, but congratulations to you and your work and enjoy your day. Thank you. MR. JACK NEWHOUSE: H el l o ever yone. M y name i s Jack N ewhouse. Due t o t he si ze of t he panel , I t hi nk I ’m go- i ng t o st and over t her e. I hope you’r e al l ok ay wi t h t hat . I ’m a 3L her e at St . John’s U ni ver si t y School of L aw and I r eal l y j ust want t o t hank Pr ofessor Gr egor y for put t i ng t oget her t hi s event . I ’ve had t he gr eat for t une of bei ng hi s r esear ch assi s- tant. And, you know, in baseball you have coaches, pitching coaches, batting coaches, and a coach’s j ob i s r eal l y t o devel op a pl ayer , t o devel op t hei r sk i l l s. Anyone who’s seen M ONEYBALL 25 k nows t hat , you k now, t her e ar e fi ve-t ool pl ayer s l i k e Bi l l y Beane out t her e but t he ment al aspect of t he game, br i ngi ng t hem fr om poi nt A t o poi nt B, i s r eal l y i m- portant. I think a coach is a big part of that and to me Professor Gr egor y, and not j ust t o me, act ual l y t o r eal l y a whol e gr oup

25. (Columbia Pictures 2011). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 193 of peopl e at St . John’s, and I bel i eve I speak on t hei r behal f, t hat Pr ofessor Davi d Gr egor y has been our coach in bringing us along, and not just teaching us the labor and employment law but also teaching us the practical side of law and putting us i n cont act wi t h peopl e, many peopl e t hat ar e on t hi s panel today who have really given insight into and will hopeful l y t oday gi ve mor e i nsi ght i nt o what i t ’s l i k e t o be i n t he fi el d of labor law. Befor e we get st ar t ed, I r eal l y want ed t o go ar ound t he panel and have ever ybody i nt r oduce t hemsel ves. We wi l l st ar t over her e and wi l l mak e our way down t o Gene Ei sner , and we’l l go up t o Tom Rei ch and end off wi t h Gene Or za. MR. PATRICK FLANNIGAN: My name is Patrick Flan- nigan. I teach here at the university. And, unlike the Prov- ost , i t shoul d come as no sur pr i se t o you my spor t i s not bal l et . MR. NEWHOUSE: And al so, actually, when you’re intro- duci ng your sel f pl ease al so st at e what your r el at i onshi p i s t o labor law, baseball, or both. MR. FLANNIGAN: Thank s. I t each mor al t heol ogy her e at t he uni ver si t y and so one of t he edgy poi nt s i n l abor i s ask- ing the question “What does t he chur ch have t o do wi t h i t ?” MR. MATTHEW HOWES: All right. My name is Matt H owes and I ’m pr oud t o be r epr esent i ng t he Ent er t ai nment , Ar t s, and Spor t s L aw Soci et y her e at St . John’s. I ’m l ook i ng for war d t o j oi ni ng t he L abor L aw Soci et y soon. I woul d l i k e t o t hank Pr ofessor Gagl i ano and Pr ofessor Gr egor y for gi vi ng me t hi s oppor t uni t y t oday. Ever ybody shoul d r ead Bi l l Goul d’s book , i t ’s phenomenal . I t appear s, at fi r st gl ance, t o be a shor t book but , t r ust me when I t el l you, i t ’s ver y dense i n t he best possible way. I’m a baseball addict myself and as the j uni or member on t hi s panel , I ’m humbl ed and honor ed t o be her e wi t h some of t he most di st i ngui shed l egal and basebal l mi nds. And so l et ’s t al k some basebal l . M S. M ELI SSA SCH NEER: Hi ever yone. I ’m M el i ssa Schneer . I am t he Pr esi dent of t he St . John’s L abor Rel at i ons and Empl oyment L aw Soci et y. I al so gr aduat ed fr om Penn State with a degree in labor studies and that would probably amount t o most of my l abor exper i ence. I have wor k ed very cl osel y wi t h Pr ofessor Gr egor y and echo a l ot of Jack ’s st at e- ment s about hi m bei ng a coach, a ment or , and someone I ver y much l ook up t o. And I echo M at t ’s st at ement about bei ng very humbled to be sitting on this panel with such prominent fi gur es. SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

194 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2

In terms of baseball, I come from a family that lives and br eat hes by t he Yank ees—sorry, Mr. Gould—and a little bit t he Pi t t sbur gh Pi r at es as wel l , so a mi x of bot h. I ’m ver y happy to be here and thank you for having me. MR. JEFF FANNELL: I am Jeff Fannel l , a graduate of St . John’s L aw School . L abor l awyer by t r ade, I spent 10 year s at t he M aj or L eague Basebal l Associ at i on, so t hat ’s my pr ofessi onal connect i on t o basebal l . I gr ew up l ovi ng basebal l . I thought I was going to be able to play baseball but wasn’t able to realize that part my dream. I am working in baseball. I l eft t he Pl ayer s Associ at i on a year ago t oday, st ar t ed my own consulting practice, and I still work with baseball players and agent s. And so I ’m gl ad t o be her e as wel l . I count mysel f for t unat e t o be on t hi s panel , r ead t he book by Pr ofessor Goul d. I n addi t i on t o t he i nfor mat i on t hat was contained in the book, I was just really captured by his passi on for t he game of basebal l . Basebal l i s a wonder ful game and I’m really truly fortunate and happy to be a part of it and be her e t oday t o t al k about i t . MR. JOE FAHEY: M y name i s Joe Fahey. I ’m a pr ofessor of Rel i gi ous St udi es at M anhat t an Col l ege and I am al so di- r ect or of t he new BA i n l abor st udi es at M anhat t an Col l ege. So that tells you a l i t t l e bi t about wher e I st and. I ’m al so t he chair of an international association called Catholic Scholars for Wor k er Just i ce t hat was founded pr i mar i l y t o st and for workers’ rights in Catholic institutions, but since Catholic t eachi ng on l abor t r anscends the Catholic Church itself, we st and for r i ght s of wor k er s ever ywher e and we’ve st ood wi t h wor k er s, mar ched wi t h t hem, and ar gued for t hem befor e l eg- i sl at ur es and ot her for ums as wel l . I ’m ver y happy t o be her e. I don’t t hi nk I bel ong her e hon- est l y, i n one sense, but Bi l l Goul d ask ed t hat I be on t he panel , so I hope t hat I can cont r i but e i n some l i t t l e way. Thank you. MR. GENE EISNER: M y name i s Gene Ei sner . I ’ve been a union-side labor lawyer for the last 50 years. I have been a baseball fan since 1941 when M i ck ey Owens al l owed t he bal l t o go past , not t hat he dr opped t he bal l . The r eason t hat I said earlier that he dropped the ball was that I was listening t o t he r adi o back i n t hose days. Anybody r emember t he wor d r adi o? Ther e was no TV at t he t i me so I coul dn’t see whet her he dr opped i t or he al l owed i t t o go past hi m. But t he r adi o sai d, “And M i ck ey Owen dr ops t he bal l , and Tommy H enr i ch SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 195 r uns t o fi r st base!” I sai d, “Oh my God. We’r e goi ng t o l ose this game.” I was a Dodger fan. And the Yank ee fans wer e, you k now, t hey wer e cr azy and t he Yank ees event ual l y won t he game and won t he ser i es. So we never for gave M i ck ey Owens. But, in any event, what ’am I doing here today? What do I know about collective bargaining in baseball? I have been a baseball fan. I have been a union lawyer. What I learned about col l ect i ve bar gai ni ng i n basebal l I l ear ned fr om Gene Orza and Dan Silverman, playing poker with them, because that’s what they would talk about all the time. And on occasi on I went t o a baseball game in Yankee Stadium with Gene Orza and Bill Gould. And that’s all they talked about was basebal l and who di d what , r eser ve syst em, and fr ee agency, and salary arbitration or whatever. So that’s where I learned about t hi s st uff. Ot her wi se, I have no exper i ence. I have never pr act i ced i n t he fi el d, but I ’m an exper i enced l abor l awyer and I love baseball. MR. TOM REICH: M y name i s Tom Rei ch. I have been i nvol ved i n pr ofessi onal spor t s, r epr esent i ng pl ayer s i n baseball, hockey, and football for 41 years. And, like Bill Gould spok e so el oquent l y about , t he year , t he bl essed summer of 1946, I was a very little boy and that was my introduction. M y br ot her t ook me t o For bes Fi el d i n Pi t t sbur gh for t he fi r st t i me and t he next year my uncl e got me an autographed ball by the Pirate team and I began an addiction that has lasted for a l ong, l ong number of decades. I ended up in the business because as a young lawyer these players had no rights; no nothing, nada. The union, starting with the Marvin Miller era all the way through to the pr esent , and t he pl ayer s i n t hi s spor t who ar e so much mor e commi t t ed have done an ext r aor di nar y j ob i n advanci ng t he cause t o wher e i t i s now because i n t he ear l y days t hey had not hi ng. They wer e al l Cur t Fl ood, get t i ng nowher e. But bl ock by bl ock , bui l di ng by bui l di ng, t hey t ook over t he t own and equal ed, l evel ed, what ever you want t o cal l i t , t he pl ayi ng field. I ’m ver y happy t o be her e. Speak i ng of t he pok er i ssue, my l aw school car eer was much mor e domi nat ed by t he pok er t a- bl e t han i t was t he cl assr oom unt i l I went t o wor k for t he chi ef j udge of t he feder al cour t i n west er n Pennsyl vani a wher e I got a sudden, har d, har d r ust y nai l del i ver y of r eal i t y i n t er ms of what i t means t o be a l awyer and t o be commi t t ed SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

196 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 t o what this is all about. I envy all of you. I wish I had my l aw school car eer t o st ar t over agai n, but t hen agai n I was st i l l a l i t t l e boy. But you do get a chance t o gr ow up, but always retain the little boyness that started with me in baseball in 1946 and will never end until I do. Thank you. MR. ED RANDALL: M or ni ng ever ybody. I ’m Ed Randal l , I ’m t he host of Ed Randal l Tal k i ng Basebal l for ni ne year s on WFAN Sunday mornings at 9:00. It is a tremendous honor for me t o be her e t oday. I st ar t ed out pl ayi ng little league basebal l i n t he Br onx; I am a son of t he Br onx. I pl ayed i n t he U ni ver si t y H ei ght s L i t t l e L eague and t hey pl ayed me i n r i ght fi el d t hat fi r st year because i t was agai nst t he r ul es t o pl ay i n Sweden. [Laughter] And my career advanced quite significantly to the point of having a tryout with the Kansas City Royals somehow. I’ve been in the broadcast business for 37 years and I have spent a t r emendous amount of t i me on si dewal k s cover i ng l abor di sa- gr eement s i n t he bad ol d days bet ween management and labor . Ther e wer e ei ght wor k st oppages wi t hi n 22 year s and I was i n col l ege for t he fi r st one i n ‘72, but I ’ve cover ed al most al l of t hem si nce. I can remember at about—I t hi nk Gene coul d pr obabl y gi ve you t he exact t i me because he i s such a br i l l iant intellect –about 3:00 in the morning when Marvin Miller walked in to t he ol d Dur r el l H ot el on L exi ngt on Avenue i n 1980 and sai d t hat t he pl ayer s and owner s had come t o an agr eement on ever yt hi ng except fr ee agency and t hat t hat woul d be l eft for t he next year, 1981. I remember thinking at 3:00 in the morning, and I had just been hired by something called the Cabl e N ews N et wor k . We had done a mont h of r un-throughs and we went on t he ai r Jul y 1st , 1980. I r emember t hi nk i ng t o mysel f, “Boy, t hi s coul d come back and bi t e t hem i n t he but t i n a year .” And t hen t her e we wer e i n 1981 for t he 50 day st r i k e t hat cut t he hear t out of t he 1981 basebal l season. I j ust consi der mysel f so i ncr edi bl y l uck y and bl essed t o be doi ng what I l ove, bot h on t he ai r and off, t o have devel oped relationships and friendships in the industry; friendships to my l eft and t o my r i ght her e t oday. And i t i s a gr eat honor for me t o be amongst you t oday. MR. GENE ORZA: My name is Gene Orza. I ’m a 1973 gr aduat e of t he L aw School . I woul d j ust l i k e t o t ak e a moment of per sonal pr i vi l ege t o ext end t hr ee t hank yous. Fi r st , SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 197

I want t o t hank Gene Ei sner for pl ayi ng i n t hat pok er game. I j ust hope he doesn’t advi se t he I RS t hat we don’t decl ar e t he i ncome t hat he r egul ar l y gi ves t o Dan Si l ver man and me. Some of you k now I was co-founder of t he L abor & Empl oyment Soci et y a l ong t i me ago. I n basebal l , I ’m fr equent l y ask ed quest i ons l i k e, “Di d you ever t hi nk t hat t he wor l d basebal l cl assi c woul d be as successful as i t was?” Or , “Di d you ever t hi nk you woul d see t he day when you see a pl ayer mak i ng t en mi l l i on dol l ar s a year ?” Or , “Di d you ever t hi nk t hat t her e woul d come a t i me when t he r evenue i n t he spor t woul d exceed fi ve bi l l i on dol l ar s?” And al most i nvar i abl y my answer t o t hose quest i ons was, “Yeah, I did. I had a vision that the World Baseball Classic would be as successful as it was. I have no doubt there will be a 30 mil- l i on pl ayer someday. And spor t s r evenue i n t he spor t wi l l be over t en bi l l i on dol l ar s. I have no doubt about t hat.” But I never for esaw t he success of t he soci et y t hat r eal l y i s a func- t i on of Davi d Gr egor y’s wor k , so I want t o t hank hi m for t hat . When Col l i n Dor ney and I got t oget her over a cup of coffee on Scher mer hor n St r eet and sai d, “You k now, we shoul d get some out si de pr act i t i oner s i n t o occasi onal l y t al k t o t he peopl e who ar e i nt er est ed i n l abor l aw,” we never i magi ned t hi ngs l i k e t he “Di gni t y of Wor k ” col l oqui um t hat Davi d put on or somet hi ng l i k e t hi s. I t r eal l y i s somet hi ng I j ust di d not see coming and I k now t he ext r aor di nar y amount of wor k t hat has t o go i nt o somet hi ng l i k e t hi s. So I r eal l y do want t o t hank you, Davi d, si ncer el y. I frankly hadn’t planned on my third thank you, but I must t hank Bi l l Goul d for t he publ i c apol ogy he j ust ext ended t o me. I mean t hat qui t e si ncer el y. I t was ver y cour ageous on hi s par t , I t hi nk , and I ’m ver y gr at eful for i t . For t hose of you who are mystified by what Bill and I are talking about, in his book Bill ascribes to me, that’s simply a position I did not espouse, but a posi t i on whi ch i f I di d espouse woul d suggest t hat my l aw degr ee shoul d be gi ven back t o St . John’s because no l awyer woul d ever espouse t he posi t i on t hat t he book has suggest ed I hol d, and t hat was t he sour ce of my upset . I di dn’t want peopl e for t he r est of hi st or y r eadi ng t he book and saying, “Boy, that Orza guy, he is crazy if he thinks that state action applies to private drug testing.” And that was the source of my upset, but I truly am grateful. Again, I used the word advisedly but it was a very courageous thing, I think, that Bill did, and I accept that apology and I’m very grateful SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

198 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 for i t . So I t oo j oi n wi t h some of t he peopl e i n suggest i ng you r ead t he book , j ust ’not page 220. But, again, it is a pleasure to be here, it always is. It’s good seei ng so many of you agai n. MR. KEN BELSON: M y name i s K en Bel son. M y l egal experience is limited to winning a $900 claim in small claims cour t . M y dad di d r epr esent l abor uni ons for qui t e a whi l e and my grandfather was a labor leader, but I never made i t t o law school. But thank you, David and Michael, for having me her e. Thr ough a l ong 12 year det our t o Japan wher e I st ar t ed wor k i ng as a j our nal i st cover i ng busi ness, I made i t back t o t he St at es i n 2004. Thr ough a ser i es of j obs l eadi ng up t o 2009 was offer ed a spot t o wr i t e about t he busi ness of basebal l and ot her spor t s for t he spor t s sect i on at t he N ew Yor k Ti mes. That has i ncl uded, most r ecent l y, some cover age on t he N FL and the NBA lockouts and thankfully no stories about MLB l ock out s. So I ’m her e t o pr ovi de a non-l egal out si der ’s exper i- ence. MR. NEWHOUSE: Thank you. So for t he next 45 mi nut es we ar e goi ng t o have a di scussi on at t he panel wher e I pr esent quest i ons t o speci fi c peopl e on t he panel and ever y- body on t he panel i s t hen wel come t o chi me i n aft er war ds. And after 45 minutes I want to give about 15 minutes for the peopl e on t he panel t o ask each ot her quest i ons, i f t hey woul d like. And then after that we’re going to through it out until about 1:10 for Q and A afterwards. So t her e have been t hr ee col l ect i ve bar gai ni ng negot i at i ons so far t hi s year i n t he maj or spor t s—the National Football L eague, t he N at i onal Bask et bal l Associ at i on, and M aj or L eague Basebal l —and t wo l ock out s, so far . December 11t h, t he col l ect i ve bar gai ni ng agr eement for M aj or L eague Base- bal l i s up. And I want ed t o addr ess my fi r st quest i on t o Gene Orza, which is, in what ways do you think the contentious na- t ur e of l abor negot i at i ons i n basebal l i n t he past has paved t he way for l abor peace t oday? MR. ORZA: Wel l , I think it’s the child of the contention t hat exi st ed befor e. Al l col l ect i ve bar gai ni ng negot i at i ons ar e, i n a sense, t he descendant s of pr i or negot i at i ons. I say i t somewhat facet i ousl y but t her e i s a k er nel of t r ut h i n i t , t hat i n a sense t he chi ef beneficiaries of 1994-95-96 st r i k e ar e t he owner s because i t fr eed t hem of t he bur den of t hi nk i ng t hat t he spor t needed t he sal ar y cap t o sur vi ve. Once t hey had SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 199 got t en past t hat hur dl e and t hey r eal i zed t her e wer e ways t hey coul d wor k effect i vel y wi t h t he uni on t o devel op t he spor t and mak e i t gr ow, t hey wer e l i ber at ed fr om t he capt i vi t y t hat t he fi ght over a sal ar y cap had pl aced t hem i n. It’s a little bit like the irony, and the sport abounds in iro- ni es, and i t ’s pr obabl y t he r eason why so many gr eat wr i t er s i n l i t er at ur e choose basebal l i nst ead of ot her spor t s when t hey want t o use a par t i cul ar met aphor ; Phi l i p Rot h or N or m M ai l er or whoever i t mi ght be. The fi ght for fr ee agency si mi- larly liberated the clubs from a bargain they had made essen- tially with the devi l . I f I coul d j ust t ak e a mi nut e t o expl ai n what I mean by that. Ther e ar e t oday 30 cl ubs. The or i gi ns of t he r eser ve cl ause go back t o when t her e wer e ei ght . But assume for t he moment that the 30 shortstops playing baseball today are the ver y best 30 shor t st ops you coul d fi nd, and you empl oyed t he fi ft h best and he get s hur t or he r et i r es or he’s gone. By defi- ni t i on, t he onl y shor t st op you coul d have at your di sposal i s the 31st because the other 29 shortstops that are in his class are all taken al r eady. What fr ee agency di d i s i t l i ber at ed t he clubs from a situation of a stagnation in which they couldn’t, t hr ough a j udi ci ous use of fr ee agency, change t hei r t eams i n ways bet t er t han t he r eser ve cl ause al l owed t hem. That ’s why you had much more continuity in championships and st el l ar per for mance pr i or t o fr ee agency t hen aft er i t . Well, it’s a similar thing here. There’s similar ironies taking place here, I think, that the clubs, knowing they can’t get a sal ar y cap and seei ng t he degr ees t o whi ch t he pl ayer s would resist it, having gone through that kind of enormous struggle, have—t hen at t he end of t he pr ocess seei ng t hat t he spor t can do ver y, ver y ni cel y i n t he absence of one, have i n a sense fr eed t hemsel ves of t he bur dens t hat t hat posi t i on imposed upon t hem. So t he peace you’ve seen over t he l ast 17 years is the child. Without the 1994-1995 st r uggl e, you woul d not have seen that peace, I think. That analogy applies in a variety of different areas well beyond and much more importantly than basebal l . Geopol i t i- cally it applies, but that is the short answer. I know I didn’t gi ve one and I apol ogi ze for t hat , gi ven t he si ze of t he panel . The shor t answer i s t hat t he peace you see t oday i s t he chi l d of t he st r uggl es you saw i n 1994-95. M R. NEWH OUSE: I n St . John’s, I t ook a negot i at i on cour se wher e we l ear ned t hat one of t he most i mpor t ant par t s SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

200 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 of negotiation are the actual characters that are a part of the negot i at i on i t sel f. And I want ed t o pose a quest i on t o t he panel, maybe we’ll start with M r . Ei sner . H ow do t he pr edi s- posi t i ons and t he per sonal i t i es of t he par t i es her e, how have t hey affect ed l abor negot i at i ons? Or how do per sonal i t i es and pr edi sposi t i ons affect l abor negot i at i ons i n gener al ? MR. EISNER: I ’m sor r y? H ow does t he per sonal i t i es of who? MR. NEWHOUSE: H ow do t he pr edi sposi t i ons and per- sonal i t i es of t he par t i es i nvol ved, so i n t he case of M aj or League Baseball you had Don Fehr and now you have [M L BPA Execut i ve Di r ect or ] M i chael Wei ner negot i at i ng wi t h Bud Selig, [MLB Executive Vi ce Pr esi dent for L abor Rel at i ons & H uman Resour ces] Rob M anfr ed. H ow do t hei r per sonal i- t i es affect t he col l ect i ve bar gai ni ng pr ocess? MR. EISNER: I think having read Bill’s book carefully, he poi nt s out al l t he mi st ak es t hat some of t he owner s have made and played right into the players’ hand, and I think that t he owner s wer e somewhat r i gi d and had a pr edi sposi t i on t o cer t ai n posi t i ons, and I must say k nowi ng t he r epr esent at i ves on t he pl ayer s’ si de l i k e Gene and Don Fehr and ot her s who— well, their pr edi sposi t i on of cour se was t o do ever yt hi ng t hey can t o enabl e t he pl ayer s t o maxi mi ze t hei r benefi t s. Goi ng t o the board, and Gene having worked at the board, and he wor k ed i n Washi ngt on and acqui r ed a gr eat deal of exper i- ence, r eal l y cor ner ed t he empl oyer s who sor t of i n a k neej er k reaction took certain positions in bargaining which they really wer e i l l -equi pped t o do. And I t hi nk t hat t he pr edi sposi t i on on t hei r par t was i n ver y, ver y, ver y bad j udgment . L et me j ust quot e you fr om Judge Sot omayor ’s decision when she issued the 10-J injunction against the owners because i t ’s ver y cl ear l y t o me. I pul l ed up t he deci si on and, by t he way, I was i n t he cour t r oom when t hat case was ar gued and I hear d t he deci si on r ead. She r ead i t fr om bench, t o show you how up on this stuff she was. She says in her decision, “The owners argue that the right to bid competitively or collectively must be a permissive topic of bar gai ni ng because i f i t wer e a mandat or y t opi c t he owner s wi l l be for ced t o gi ve up t hei r st at ut or y right to the bargain collectively. Courts, in addressing the antitrust law, have eas- i l y r ecogni zed, however , t he essence of col l ect i ve bar gai ni ng i s t he est abl i shment and mai nt enance of r eser ve and fr ee agency wher e t he owner s agr ee t o bi d compet i t i vel y for some and SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 201 not ot her s. The owner s’ ar gument has a super fi ci al appeal i n i t s at t empt t o hear k en back t o t he uni oni zi ng cr y of empl oyees when t hey banded t oget her t o cr eat e t hi s nat i on’s l abor l aws. What t he owner s have mi ssed her e, and t he M L B has not , i s that statutory right to join collective bargaining units belong t o empl oyees, not t o empl oyer s.” 26 H ow coul d t he empl oyer s have mi ssed t hat ? Obvi ousl y Gene and hi s col l eagues k new ful l wel l and t hey backed those guys into a corner. And she puts in italics, “T h e NLRA gives only employees section 7 rights to bargain collec- t i v el y t h r ou gh el ect i v e r ep r esen t a t i v es, n ot em p l oyer s.” 27 That is so fundamental to anybody who has practiced labor law. I don’t under st and how t hose peopl e—I don’t k now, Gene, how you got those guys to back into that position but it was really fundamentally dumb. Gene? MR. ORZA: Well, if I understand your question, I’m not— agai n, I don’t want t o be t he focal poi nt . Ther e’s so many ot h- er t al ent ed peopl e up her e. L et me j ust br i efl y say, first of all, I don’t think personalities matter hardly at all. I think if, as I ’ve sai d, i f Si d Vi ci ous gave me a good pr oposal I ’l l t ak e i t . And i f M ot her Ter esa gave me a sal ar y cap I ’d r ej ect i t . So, you know, I don’t think that, I mean the content of a pr oposal rules the day. This thing about personalities plays well in the press and it has a certain kind of plausibility to it, but in the real world I don’t think it matters at all. As far as t he aspect t hat Gene al l uded t o i n t he 1994 l i t i- gat i on, I never focused on that so much as the fundamental mi st ak e t he owner s made i n 1994 by t ak i ng t he posi t i on t hey di d was fai l ur e t o appr eci at e t he hi st or y of how t hey t hemsel ves had got t en t her e. To say t hat fr ee agency and sal ar y arbitration are permissive subjects of bargaining means that the 1972 lockout, the 1976 strike, the 1980 partial strike, the 1981 strike and the 1985 strike and the 1990 lockout because t hey wer e over fr ee agency and sal ar y ar bi t r at i on al l happened t o be wor k st oppages over per mi ssi ve subj ect s of bar- gai ni ng. What a pr epost er ous pr oposi t i on t he l awyer s had t o espouse befor e t he Second Ci r cui t . The Second Ci r cui t case; Judge N ewman di d t he chai r at t he panel at t he t i me. I mean i t must be a devast at i ng expe-

26. Silverman v. Major League Baseball Player Relations Comm., 880 F. Supp. 246, 256 (S.D.N.Y. 1995), aff’d, 67 F.3d 1054 (2d Cir. 1995). 27. Id. SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

202 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 r i ence. I ’ve never exper i enced t hat and I hope none of you ever do, but t he cl ubs’ l awyer got up and befor e he sai d anyt hi ng Judge N ewman l ook ed at hi m and sai d, “Why ar e you her e?” L i t er al l y, t hat ’s exact l y what he sai d t o hi m. “Why ar e you her e?” N ow, t hat bench was composed of appoi nt ees of Pr esi- dent Carter, President Reagan, and it was of liberal, con- ser vat i ve, Republ i cans, Democr at s. And t hey j ust wer e fl ab- bergasted that the clubs would do that. So, again, you make a bargain with the devil in various ways and one of t hem i s when you ar e si ncer el y convi nced that the sport must have a salary cap or it will die; that kind of fer vi d adher ence t o a pr oposi t i on wi t hout fur t her i nqui r y i nt o whet her i t ’s accur at e or not can l ead you ast r ay some- t i mes. As far as the original question goes, I don’t think that per- sonal i t i es mat t er ver y much at al l , at l east i n my exper i ence. I n a sense, pl ayer s ar e ver y for t unat e t hat per sonal i t i es don’t mat t er ver y much because i f t hey di d, t he pl ayer s woul dn’t have got t en t he benefi t s t hat t hey got whi l e I r epr esent ed t hem. [Laughter] MR. EISNER: Gene, t he next r ound i s on me, buddy. MR. NEWHOUSE: Mr. Fannell? MR. ORZA: That’s great. By the way, that line, “Why are t hey her e,” t her e woul d be mor e t han hundr eds; i t woul d certainly be in the thousands of peopl e over t he year s i n t hi s business that you could apply that to. Absolutely. MR. NEWHOUSE: Pr ofessor Fannel l ? MR. FANNELL: I have had t he oppor t uni t y t o wor k wi t h Gene and for Don Fehr , and I agr ee wi t h Gene on one hand t hat per sonal i t i es don’t r eally factor in. More than that, I be- l i eve t hat i f per sonal i t i es become pr edomi nant you have a pr obl em. But I do bel i eve t hat t he di sposi t i on—and I think you wer e t al k i ng about t he di sposi t i on of t he par t i es. I t hi nk that matters. One of the things that I admi r ed about Gene and Don Fehr was that intellectually, and Gene will be the fi r st one t o t el l you, at a hi gh l evel . I sn’t t hat r i ght , Gene? Right? Gene i s one of t he smar t est guys I ’ve ever met ; Don, gr eat lawyer. But one of the things that I think was important was they also had inside of them the willingness and the ability to fi ght , t o bl oody your nose. And I bel i eve t hat ’s i mpor t ant when you’r e goi ng t o advocat e on behal f of pl ayer s or you’r e SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 203 goi ng t o advocat e on behal f of anyone. So t hey had a willingness t o st r i k e a deal but t hey al so had a wi l l i ngness t o bl oody your nose. I bel i eve t her e was a t i me when t her e was a pr e- di sposi t i on on t he ot her si de t o spoi l for a fi ght . And so when we you combi ne t hose; I bel i eve t hat ’s why you see t hat t her e wer e so many fi ght s. I bel i eve what ’s goi ng on now, however , i s t hat t her e ar e some di ffer ent peopl e i n pl ace i n M aj or L eague Basebal l and t her e seems t o be mor e of a wi l l i ngness, Gene t al k ed about i t comi ng out of t he st r i k e of ‘94-’95, of understanding that you can get along, that you can bargain. And I believe now that maybe that psyche has changed a little bit, that’s why we’re seei ng mor e l abor peace. But , you k now, whet her t he per sonal i t i es mat t er or not , per haps not , you k now, one hundr ed per cent ; but I do bel i eve t hat pr edi sposi t i on i s i mpor t ant and I t hi nk t hat ’s par t of what we’r e seei ng now, t hat t her e i s a different mentality being brought to the table. MR. NEWHOUSE: Pr ofessor Fannel l , what you j ust brought up was that there is an aspect of want i ng t o bl oody t he ot her si de’s nose. I s cont ent i on an i nher ent par t of l abor negot i at i ons? Does i t al ways have t o be cont ent i ous? Does i t always have to have—-obvi ousl y i n M aj or L eague Basebal l —- i s M aj or L eague Basebal l an except i on t o t he r ul e? Or can l a- bor negot i at i ons r eal l y, you k now, be peaceful i n a way? I want ed t o hand t hi s quest i on over t o M r . Bel son. M R. BELSON: Wel l , I ’l l l et t he exper t s who have been acr oss t he t abl e answer t he fi r st par t of t he quest i on. But Jack is partly alluding to t he conver sat i on we had t hi s mor n- i ng about some of t he l abor negot i at i ons I cover ed i n Japan as a busi ness wr i t er and one i n par t i cul ar t hat I r emember i n- volving ANA, the international carrier. One maj or di ffer ence i s t hat t hey have company uni ons, so the pilots struck from ANA, not all pilots. And in this case it was ar ound spr i ng. And for t hose of you who have been over i n Japan you may k now t her e’s a gol den week , a ser i es of national holidays, about nine days. It is their biggest travel season. And t he pi l ot s wer e on st r i k e for about 10 days and t hen a coupl e of days befor e gol den week cal l ed off t hei r st r i k e temporarily so they wouldn’t hurt the airline, and then went back t o wor k aft er t he hol i days ar e over . I ’m sor r y. I mean went back on st r i k e aft er t he hol i days wer e over . And I t hi nk t hat goes t o t he deeper poi nt of, you can have mutual respect, if you will, without trying to trash the com- SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

204 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 pany or t r ash your opponent ; and as a consequence t hey qui ck l y got a deal done aft er t hat . So t her e ar e ot her ways t o handle it, not just bashing. Both of those cases, I mean cer- t ai nl y i n t hat case ver y l i t t l e of i t was done t hr ough t he medi a. I t was al most unseeml y for ei t her pi l ot s or t he ai r l i ne i t- sel f t o be on t el evi si on at ni ght di scussi ng i t . So i t ’s ver y differ ent t han t he spor t s spher e wher e act ual pl ayer s ar e t weeting overnight and so forth. M r. ORZA: For t hose of you who ar e puzzl ed by t he Japan union going on strike, coming off strike, and going back on, in Japan you can have i nt er mi t t ent st r i k es. Unlike in America, i nt er mi t t ent st r i k es, as t hose of you who st udy l abor l aw k now—i n fact , l ast year t he Japanese Pl ayer s Associ at i on, i n a di sput e over a fr ee agency pr ovi si on and r eser ve syst em pr ovi si on and t hen col l ect i ve bar gai ni ng st r uck on week ends. They announced their intention simply to strike on Friday, Saturday, and Sunday, and work on Monday, Tuesday, Wednesday and Thursday; a benefit that, had unions in America had, it would contribute a substantially different shape than it appears to be in r i ght now at l east . Whet her for t he good or wor se I ’m not goi ng t o suggest , but t he i dea t hat you can st r i k e onl y on week ends and cont i nue t o wor k on weekdays is a concept that is not foreign in Japan but is for- ei gn her e i n Amer i ca. MR. EISNER: Jack , can I follow up and ask Gene a ques- t i on about — MR. NEWHOUSE: Certainly, certainly. MR. EISNER: I was wondering about the issues that Bill r ai ses i n hi s book about t he Japanese pl ayer s and t he whol e quest i on of t he r eser ve cl ause and whet her t he ant i t r ust l aws continue to be applied against Japanese players; and the whol e i ssue of st ar e deci si s, whi ch t her e’s at l east one j ust i ce of t he Supr eme Cour t , M r . Thomas, who doesn’t bel i eve i n st ar e deci si s; and t her e ar e ot her s who gi ve l i p ser vi ce t o st ar e deci si s. And whet her or not t he whol e i ssue i s goi ng t o come befor e t he cour t agai n i f a Japanese pl ayer or pl ayer s cont est t he whol e r eser ve syst em, what we t hi nk t he out come mi ght be. MR. ORZA: Well, first of all, in Japan, players are re- ser ved t o t hei r cl ubs for a per i od of ni ne year s. MR. EISNER: But i f t hey come t o t he St at es? I f t hey, you k now— MR. ORZA: They come t o t he St at es onl y under t wo ci r- SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 205 cumst ances. Aft er t hat ni ne year per i od i s over , t hey ar e fr ee agent s and M aj or L eague Basebal l i s fr ee t o si gn t hem, as anybody el se i n t he wor l d i s fr ee t o si gn t hem. Whi l e t hey ar e under r eser ve i n Japan, M aj or L eague Basebal l , t hr ough t he pr ot ocol t o whi ch Bi l l al l uded, honor s t hat r eser ve. So no Japanese pl ayer under r eser ve can come t o Amer i ca other than through this posting process that Bill also alluded to in which an American team can express interest in a par- t i cul ar pl ayer who i s under r eser ve. Ther e’s a commi ssi oner t o commi ssi oner communi cat i on about t hat , for war di ng t hat r equest . Then t hey cont act t he cl ub. “Ar e you wi l l i ng t o under t ak e di scussi ons wi t h t he Bost on Red Sox,” l et ’s say i n t he case of M at suzak a, “for t he Bost on Red Sox pur chase of Daisuke.” And if that club then says yes, then there’s a period of t i me i n whi ch t he Red Sox and M at suzak a can try to wor k out a deal . So t hose pl ayer s under r eser ve come t hr ough t he appl i cat i on of t hi s post i ng pr ocess. I assume when you r ai sed t he ant i t r ust quest i on you’r e t al k i ng about t he Japanese pl ayer who want s t o come t o Amer i ca t o pl ay whi l e under r eserve, attacking under the an- t i t r ust l aws, t he fai l ur e or t he combi nat i on of Amer i can cl ubs r efusi ng t o ent er t ai n offer s fr om hi m for hi s ser vi ces. The answer to that, I think, is quite apart from the legal analysis t hat woul d accompany whet her or not t he M aj or L eague Basebal l ’s exempt i on fr om ant i t r ust , l i mi t ed-now exempt i on from antitrust laws, applies to that situation. It’s a matter of t i me. Ok ay, so t he pl ayer fi l es t he sui t and i t t ak es fi ve year s t o r esol ve and i t goes t o t he Supr eme Cour t or something like that. Now that 24-year -ol d pl ayer i s 29 year s ol d and he hasn’t played baseball in Japan because Japan’s not taking him back. So there are practical implications. Danny Gardella faced precisely this situation in the Gardella case. I t i s difficult to ask a player, average career in Major L eague Basebal l i s fi ve year s and a hundr ed days. The medi- an career is four years and change. The change fluctuates a l i t t l e bi t fr om year t o year but you ask a per son who’s devot ed most of hi s ent i r e l i fe-by t he way, you don’t get t o be a M aj or League Baseball player by staying home and reading the po- et r y of Emi l y Di ck i nson and goi ng t o t he oper a and, you k now, st udyi ng t he pi ano. I t el l peopl e i n t he st aff, Jeff k nows t hi s, in the history of civilization t he gr eat est vi ol i ni st has never been t he gr eat est doct or . I t j ust doesn’t happen. Ther e’s not SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

206 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 enough t i me. Wel l , you k now, i n a fi ve year car eer ask i ng t o under t ak e litigation is extremely difficult. So, as a practical matter, Gene, I don’t think that you’l l see t hat ant i t r ust case ever emer ge because t he t i me const r ai nt s on t he Japanese pl ayer coupled with the cultural issue that attach when a Japanese pl ayer i s asser t i ng publ i cl y he want s t o l eave hi s t eam, t her e are all kinds of cultural issues associated with that kind of a st at ement by hi m. I t ’s one of t hose l egal i ssues t hat wi l l j ust be out t her e i n t he mi dst of t i me but I don’t t hi nk you’l l ever see i t come t o fr ui t i on as a l egal i ssue. M R. BELSON: I want ed t o fol l ow up j ust br i efl y wi t h a passage fr om Pr ofessor Goul d’s book about pl ayer s i n t he ‘40’s havi ng t r oubl e get t i ng r ecogni zed as l abor . The gener al pub- l i c gener al l y vi ewed t hem as pl ayer s and at hl et es who shoul d be gr at eful for t hei r j obs. I t hi nk t hat gener al sent i ment st i l l prevails i n Japan t oo. And t hen t her e’s a whol e l ayer of cor- porate loyalty that is still probably prevalent in Japan that you see much, much l ess her e i n t he St at es. So t o fi nd t hat Japanese pl ayer wi l l i ng t o do t hat woul d be ver y, ver y har d. MR. NEWHOUSE: I wanted t o ask M r . Rei ch a quest i on about your relationship to the union and to management to M aj or L eague Basebal l because you r epr esent i ndi vi dual pl ayer s as opposed t o t he uni on, whi ch i s r epr esent i ng t he col- l ect i ve i n M aj or L eague Basebal l , whi ch i s management si de. Can you descr i be t o us your r el at i onshi p wi t h t he t wo si des? What’s the fact and what are the myths of being a sports agent i n your posi t i on? MR. REICH: Wel l , i t ’s del i cat e for sur e. L et ’s t al k about baseball and stay with baseball for now because there a huge difference in the collective bargaining history and in the qual- i t at i ve aspect s of t he di ffer ent uni ons i n spor t s. The evol ut i on of t he r ul es wher e pl ayer s had no r i ght s and now t hey have a playing field that’s permitted them to share in the largess and t he gai ns t hat have been made by t he spor t i t sel f, t he bat t l e- gr ound was, as has been descr i bed bot h i n pr ofessor ’s book and i n t he comment s by Gene and ot her s, and t he book speak s for i t sel f about t he evol ut i on. The poi nt i s you have t o at all times be aware what the posi t i on of t he negot i at or s ar e and whet her i t ’s war t i me or peace t i me. Ther e’s a t r emendous di ffer ence because dur i ng war- t i me t her e i s al l k i nds of t hi ngs goi ng on. And t he most i m- portant thing during wartime is the solidarity with players SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 207 and the union and the agents. N ow, does ever ybody pr act i ce t hat ? N o. Dur i ng war t i me, many of the agents were busting their tails for the cause and t he maj or i t y of t hem wer e busy st eal i ng pl ayer s, whi ch by t he way i s one of t he most r api dl y gr owi ng aspect s of t he whol e industry, along with the salaries, et cetera. This is much bet- t er t han bank r obber y because t hey have no downsi de r i sk . Ther e i s no j ai l . Ther e i s no not hi ng. But i t i s an obl i gat i on of a pl ayer r epr esent at i ve t o be doing the right thing with respect to the union’s position because al l of t hese r i ght s fl ow fr om t hei r successes. And, at t he same t i me, your fi r st obl i gat i on as a l awyer i s t o t he pl ayer , whi ch i s oft en for got t en about , t oo. So t he bal anci ng bet ween that and your obl i gat i ons t o t he uni on have been and al ways wi l l be an ext r emel y del i cat e bal ance. But t he pr i or i t i es of t hem; wi t hout t hem bei ng bal anced pr oper l y, we woul dn’t be si t t i ng her e t al k i ng about t he evol ut i on or t he evol ut i on t hat ’s spel l ed out i n t he book about al l t hese r i ght s t hat t he pl ayer s now enjoy because when I started in 1969 doing this and rep- r esent i ng Doc El l i s, t hey bar el y had a r i ght t o be al i ve i n t er ms of r i ght s. They had none. They wer e not even per mi t- t ed t o be r epr esent ed by counsel . So t he ver y fi r st exper i ence I had al most ended up i n a fi st -fi ght wi t h a gener al manager because he agr eed t o have a meet i ng wi t h me. I showed up for t he meet i ng and he pr ompt l y suggest ed t o me t hat he doesn’t want t o meet . Then coat s wer e comi ng off and stuff like that, but wiser heads pre- vailed. But the point is that’s the way it was. This is the way i t i s now and t hat ’s pr i mar i l y because of t he effor t s of t he basebal l and uni on peopl e goi ng al l t he way back t o t he beginning of time. And some guys who wer e wi l l i ng, as Jeff poi nt ed out , t o get t hei r nose bl oody or bl oody somebody el se’s. Ther e i s a r eal i t y t o per sonal i t i es, by t he way, i n t hi s business, but in the context that Gene was talking about, as to labor i ssues and whet her t her e i s a l abor deal , at t he endgame. H e’s r i ght . Al ong t he way i t ’s anot her st or y, you k now, over a l ar ge body of t i me. MR. ORZA: Fr ee agency as a mat t er of r i ght as opposed to, like, a violation that Bill alluded to in the Catfish Hunter case wher e a cl ub vi ol at es a cont r act and you become fr ee through material breach, free agency as a matter of right did not exi st i n t he 1970’s. The deci si on i n M esser smi t h was i n 1975 and t he fi r st negot i at i on t o under t ak e fr ee agency was SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

208 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 t he 1980 negot i at i on because t her e was i n effect at that time a col l ect i ve bar gai ni ng agr eement , or one had expi r ed. But the first real negotiation was towards the 1980 basic agr eement and i n t hat negot i at i on t he cl ubs r esi st ed any appl i cat i on of t he fr ee agency concept what soever . So Ji m Bou- t on pr oposed t hat pl ayer s be gr ant ed fr ee agency at t he age of 65 and t he cl ubs r ej ect ed t he pr oposal . And t he cl ubs r ej ect ed t he pr oposal on t he gr ound t hat , i f t hey put 65 as t he age for fr ee agency i n t he cont r act , befor e you k now i t t hen i t wi l l become 60 and then it will become 55 and eventually it will go down t o, l i k e, 30. And, you k now, not passi ng over t he fact t hat t o go fr om 65 t o 30 i n fi ve year i ncr ement s you’r e t al k i ng about 75 years of contracts in which they’d all be dead, the peopl e i n t he r oom. But that is a fact that Jim Bouton pro- posed t hat fr ee agency be gr ant ed at t he age of 65 and t he cl ubs r efused i t on t he gr ounds t hat i t wi l l be a sl i pper y sl ope down whi ch t hey woul d be for ced t o sl i de i f t hey gr ant ed t hat pr ovi si on. MR. REICH: Especially for hi m. MR. NEWHOUSE: M r . Randal l , one of t he most cont r o- ver si al i ssues i n basebal l over t he l ast decade has been st er- oi ds, per for mance enhancement dr ugs, use of amphet ami nes. And I wanted to ask your opinion on how the union and management ; how woul d you characterize how the union and management handl ed t he st er oi d i ssue? MR. RANDALL: I don’t think they did. I think, and I’ve said this on the air numerous times. I hate talking about this, by the way. It’s not baseball. It’s applicable to the game ob- viousl y, but I hat e t al k i ng about i t and i t never seems t o go away. I think that, as I’ve said on the air, we all share a sense of cul pabi l i t y about i t , t hat er a. Er a—-not a year , not a season, an era. And I think that’s most unfortunate. I think that we were all complicit: management, the union, the agent s, me, ever ybody on t he ai r —t hat we wer e wat chi ng something that was almost mystical. Senator [Jim] Bunning talked about the fact that in his time of pitching, and he was a Hall Of Fame pitcher, players didn’t get better at the age of 35. I don’t know what statisti- cal sci ent i fi c evi dence t her e i s t o suppor t how—in anticipation of t hi s, I have not es. I was l ook i ng somet hi ng up. Your hat si ze i s not supposed t o gr ow. The si ze of your feet i s not supposed t o gr ow aft er you ar e a t eenager or what ever . We saw t hi s i ncr edi bl e gr owt h of t wo t o t hr ee t i mes of si zes, t wo t o SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 209 t hr ee t i mes l ar ger t han t hey wer e and t wo or t hr ee si zes. At 38, your l i fet i me bat t i ng aver age of .290 i s not supposed t o grow to .370 and .362, and your l i fet i me sl uggi ng per cent age of .556 and then you slug .863, and then you have two other seasons over .800 and one at .799.28 These ar e st r at ospher i c inexplicable increases in production. And now we look back on this and we will continue to l ook back on t hi s for an awful l ong per i od of t i me because i t ’s goi ng to rear its ugly head every January with the announcement of t he H al l Of Famer ’s. [Jeff] Bagwel l got 44% comi ng out of t he box l ast year . The di scussi on cont i nues ever y Januar y. Wel l , what ar e we goi ng t o do? We have M anny Rami r ez now, off, wher ever he i s. H e has shamed hi msel f out of t he game. H as he absol ut el y posi t i vel y el i mi nat ed hi msel f fr om cont ent i on wi t h r egar d t o ent r y i nt o t he Basebal l H al l Of Fame? And [Rafael] Palmeiro is mentioned in the same breath. What do we do about [M ar k ] M cGwi r eM cGwi r e? What ar e we goi ng t o do about Al ex [Rodr i guez], who admi t t ed t hat he used i l l egal substances? Is he in another place? So, i t ’s an awful l ot of gr ey ar ea but I go back t o what [for mer M L B Commssi oner ] Fay Vi ncent sai d t o me on t he air, “We have no proof.” And the things that M cGwi r eM cGwi r e was usi ng at t he t i me wer e consi der ed l e- gal . I t i s j ust ver y di st r essi ng. But when you l ook at t he number s t hat obvi ousl y wer e sk ewed and wi t hout pr ecedent , guys routinely going past 60 home runs—I can r emember when [Graig] Nettles led the American League in home runs with 32. It’s just been very distressing to talk about it and j ust a shameful per i od i n t he hi st or y of M aj or L eague Base- ball. I wi sh t hat i t never happened but my goodness. . . I mean I ’ve spent a l ot of t i me i n l ock er r ooms and I go up t o t hese l i t- tle guys and tap them on the back and it was like I was hitting a brick wall or something. What caused that? And one of t he ot her . . .and I ’ve spent an awful l ot of t i me on t he show talking about this during this past year with the Bonds trial. I woul d have l egal exper t s on, medi cal exper t s and such t o addr ess t he i ssues because God k nows I don’t k now t he answer s. I just —i t ’s just a ver y depr essi ng, ver y depr essi ng t i me and depr essi ng subj ect .

28. Barry Bonds, http://www.baseball-r efer ence.com/pl ayer s/b/bondsba01.sht ml (last visited Aug. 4, 2012). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

210 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2

MR. ORZA: I t ’s depr essi ng i n mor e ways t han one. We’r e in a Catholic university and the Catholic Church probably has done mor e t o fost er t he i dea t hat peopl e shoul d st ay focused on t he ends and means analysis than perhaps any institution in the history of western civilization. The laudability of your end does not necessar i l y j ust i fy any means t o achi eve t hat end. One of t he gr eat and depr essi ng aspect s of dr ug debat e i s how t he spor t —and I blame myself as much as anybody else— has been unabl e t o educat e spor t s wr i t er s and r adi o per sonal- ities and fans to the legal implications of what we’re talking about here. When you establish a disciplinary regime that in effect al l ows t he feder al gover nment of the United States to end-run the Fourth Amendment to the constitution, when you conduct random drug testing, an endeavor which at least cur- r ent l y t he feder al gover nment cannot under t ak e by vi r t ue of the Fourth Amendment-the Fourth Amendment says, as you al l k now, gover nment cannot under t ak e unr easonabl e sear ches and sei zur es. 29 I k now Bi l l has a par t i cul ar vi ew of t he D i m eo case in the Seventh Circuit.30 I think that the role of the state in the idea of gambl i ng and j ock eys i s ent i r el y di ffer ent t han i n baseball. But he wi l l agr ee t hat cur r ent l y at l east t her e i s no pr ecedent for t he pr oposi t i on t hat t he feder al gover nment coul d come i n and conduct a random drug testing of baseball players; but an empl oyer can, i f i t agr ees wi t h t he uni on i n col l ect i ve bargaining to conduct private drug testing. So now you ar e dr ug t est ed pur suant t o a col l ect i vel y bar- gai ned pr ocedur e, r andoml y. Your ur i ne shows up and i t shows t hat you have i ngest ed cocai ne, st er oi ds, what ever i t mi ght be. And you ar e suspended for t hat pursuant to the di sci pl i nar y r egi me enact ed by t he par t i es t o t he col l ect i ve bar gai ni ng agr eement . N ow, had t he gover nment , befor e you wer e t est ed, gone befor e a magi st r at e seek i ng a war r ant t o ur i ne t est you or a bl ood t est you, t hey need pr obabl e cause. They won’t have any because you’re just playing third base. But now you’ve been suspended. The gover nment goes befor e a magi st r at e and says, “I just r ead t hat N ewhouse got suspended for st er-

29. U.S. CONST. amend I V. 30. Dimeo v. Griffin, 924 F.2d 664 (7th Cir. 199 ), r eh ’g gr anted, 931 F.2d 1215 (7th Cir. 1991). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 211 oi d use. I have pr obabl e cause t o bel i eve he’s usi ng st er oi ds.” The gover nment t r i es you. They convi ct you. The t est i s i n- fallible. It’s perfect. It’s reliable, no one disputes it. You go t o j ai l . You ar e now i n j ai l on t he basi s ent i r el y of evi dence that the Constitution of the United States prescribed the gover nment fr om get t i ng on i t s own. I magi ne t hat consequence. So t he i ssue about st er oi ds has never been whet her peopl e ar e on st er oi ds. I t ’s about t he means by which you detect its use and er adi cat e i t s use i n t he spor t . For t hose of us who have suggest ed t her e mi ght be ways of doi ng t hat , of er adi cat- ing its use from the sport just like cocaine use is virtually, was a big deal in 1979 and 1980 but through har d wor k by t he par t i es cocai ne use i n spor t i s much l ower i n basebal l t han t he general population for sure and hardly ever an issue in the spor t . Ther e have been onl y a handful of pl ayer s who have had dr ug abuse i ssues over t he cour se of t he l ast t en year s. The i ssue has never been about whet her st er oi ds shoul d be used or not . The i ssue i s what means do we empl oy t o er adi- cat e i t fr om t he spor t . And for some peopl e who bel i eve t hat t he means shoul dn’t be a means whi ch enabl es t he gover n- ment t o put you i n j ai l on t he basi s of evi dence t he U ni t ed St at es Const i t ut i on says t he gover nment coul dn’t get on i t s own i s not a heal t hy t hi ng for our soci et y t o under t ak e. That ’s t r ul y a sl i pper y sl ope because we l ove basebal l . We l i k e t he spor t . It has all this romance. I t ak e a back seat t o no one on t he r omant i c not i ons of basebal l . M y mot her and fat her wer e born in Italy. My grandmother couldn’t read or write English or I t al i an but t hey l i ved t o wat ch Yank ee games. I went t o ever y si ngl e ni ght game t he Yank ees played in 1953-54. I was t el l i ng one of t he st udent s ear l i er t hi s. I t aught my gr and- mot her how t o add and subt r act on t he basi s of t he magi c number . She never coul d di vi de. She never coul d di vi de or multiply. I never was able to teach her that. She could write her name but she could not add and subtract on the basis of the magic number formula for the Yankees. Every year in Sept ember we’d si t down and I ’d go over how t hr ee fr om four meant one. So my fami l i ar connect i ons ar e wi t h t he spor t , but I ’m al so a l awyer and I ’m al so i n St . John’s L aw School and I ’m al so a per son who defends not onl y basebal l pl ayer s but the Constitution of the United States. The constitution doesn’t apply to random drug testing but it has principles and values that are tinged by random drug testing. And that’s the SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

212 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 i ssue we have never been abl e t o adequat el y expl ai n. I never gi ve a speech wher e somebody doesn’t r ai se t he subject of drugs and say, “But, Gene, all I want is a level play- i ng fi el d.” M y suggest i on i s t o t hat per son—and I was unable dur i ng my t enur e t o get i t acr oss t o enough peopl e—is that that should never be all you want, simply a level playing field. You shoul d want a l evel pl ayi ng fi el d i n t he cont ext of your being an American citizen who has certain rights and privi- l eges t hat t he gover nment and peopl e under t he aegi s of t he gover nment shoul d not be al l owed t o t r ampl e upon. And r andom dr ug t est i ng poses at l east t hat quest i on. I s i t an appr opr i at e means because of i t s i mpl i cat i ons? Peopl e can go t o jai l for a random drug test result that the government, on t he basi s of evi dence, t he gover nment was bar r ed by t he Constitution from getting. And that’s really what the issue of drug testing is about. MR. EISNER: I ’d l i k e t o comment on t hat because i n my many years of col l ect i ve bar gai ni ng we have unfor t unat el y t oo many si t uat i ons wher e a pr i vat e empl oyer can engage i n conduct t hat woul d be i mper mi ssi bl e by t he feder al or st at e or city, any public authority. For exampl e, I had a case many year s ago wher e a coupl e of guys were accused of theft in the warehouse. And they had some pr i vat e det ect i ves come i n and t hey cal l ed i n some pr i- vat e guar ds who sai d t hey saw t hese t wo guys st eal i ng t he mer chandi se, and t hey confessed. About a week l at er t he Supr eme Cour t of t he U ni t ed St at es came down wi t h t he deci si on t hat you have t o gi ve a M i r anda war ni ng befor e you coul d obt ai n a confessi on. 31 So I argued in the arbitration that these private guards did not give the Miranda warning. And the arbitrator said, “This is pr i vat e empl oyment . I t has not hi ng t o do wi t h t he gover n- ment. I have testimony from the private guards that they didn’t have to give them a Miranda warning.” And unfortunately he upheld the discharge. Now, I argued that we should apply the same standards in pr i vat e empl oyment t hat we do i n t he Supr eme Cour t of t he U ni t ed St at es r ul es, but t he ar bi t r at or s sai d, “I don’t have t o. Thi s i s pr i vat e empl oyment . We have our own r ul es.” And, unfortunately, that happens over and over again in private empl oyment . N ot ever yt hi ng t hat happens i n pr i vat e em-

31. Miranda v. Arizona, 384 U.S. 436 (1966). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 213 ployment is, we can say that if it happened in, obviously, if it happened wi t h cops, pol i ce offi cer s, yes, obt ai ni ng a confessi on without giving a Miranda warning would have been unlawful but not i n pr i vat e empl oyment . And i t happens t oo many t i mes. MR. FANNELL: I ’d j ust l i k e t o add somet hi ng t o what Gene Or za sai d. Fi r st of al l , Gene Or za i s absol ut el y r i ght . I believe it’s unfortunate and it’s unfair that when i t comes t o drug testing, this call for the level playing field, and when Gene says it’s not just where you get but the means in which you get t her e, t hat i s so i mpor t ant . And I bel i eve i t goes back t o what Pr ofessor Goul d ment i oned i n t he book and someone on t he panel ment i oned ear l i er . When i t comes t o pr ofessi onal at hl et es, one of t he t hi ngs t hat seems t o get l ost i s t hat pr o- fessi onal at hl et es have r i ght s. They ar e empl oyees and t hey’r e par t of a col l ect i ve bar gai ni ng uni t . They ar e empl oyees. They have rights. They have rights as citizens in this country. And, yet , when someone mak es t he comment s t hat Gene makes I can hear it now, “Oh, there goes that union again. Just trying to get in the way and trying to block what needs to be done her e. And t hat i s t o r i d t he spor t of per for mance enhancing substances.” No one’s trying to do that, but it really i s a quest i on. H ow do we get t her e? And, i f we get t o t he poi nt wher e j ust get t i ng t her e i s mor e i mpor t ant t han how we get t her e, t hen we have mor e pr obl ems t han someone usi ng st er oi d i n spor t s. And I bel i eve t hat ’s somet hi ng t hat get s l ost . MR. FLANNIGAN: Gene, t hank you for r ecal l i ng our Judeo-Chr i st i an r oot s her e at t he uni ver si t y. And, as one who t eaches i n t he fi el d of t heol ogy, I want t o j ust speak about that business that, Ed Randall, you spoke about that business about compl i ci t y. You k now, my st udent s ar e fasci nat ed con- stantly with the fact about this business about the Catholic Church has this thing called a sacrament, confession, and that you go into this box, you divulge your sins and the priest absol ves and you go on wi t h your l i fe, and go on i n somewhat of a sense of r enewed fr eedom. But t hen t hey ar e al ways con- fused because peopl e st i l l di sl i k e t hem and peopl e t hey hur t haven’t for gi ven t hem. And so we begi n t hi s whol e di scussi on, God hat es t he si n but l oves t he si nner . But t hen we al so get i nt o t he si t uat i on t oo t hat , you k now, God may for gi ve you of your si n but you have t o deal wi t h t he r eal i t y t he r est of your SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

214 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 l i fe of what you did. Just thinking about your piece about complicity, I’m wondering, in light of your observations, how much the public, the fans are complicit in this reality of drug testing—not drug testing, drug abuse, shall we say. The reason I ask that question is because we have expect at i ons. We have hi gh expect a- t i ons t hat t he t eam t hat ’s pl ayi ng befor e us i s goi ng t o be better than the teams last year. And so these players that are out t her e now ar e goi ng t o be bet t er t han t he ones i n 1946 and t hey’r e goi ng t o br eak even bet t er r ecor ds t han t he past . So, would you include the fans in the complicity? A subsequent question that I have with that is that it has t o do wi t h a sense of t hi s busi ness of passes. And i t al most goes back t o t hi s busi ness about per sonal i t i es at a union nego- t i at i on t abl e. H ow come some pl ayer s get passes and ot her pl ayer s do not get passes? I n ot her wor ds, why does someone who has a massi ve dr ug pr obl em and comes out and speak s about i t and gi ves hi s l i fe now t o a cer t ai n char i t y get a pass fr om t he publ i c? And someone who sai d i t was j ust one or t wo i nci dent s, i sol at ed i nci dent s per haps, doesn’t get a pass and i s for ced t o r esi gn fr om basebal l ? Ther e’s pr obabl y mor e questions than answers, but you guys are much more adept at spor t s t han I am, obvi ousl y. MR. RANDALL: Well, I just want to say this. Steve H owe had per sonal demons and was suspended seven t i mes from baseball, and Yankee fans applauded him. So is there complicity? Absolutely. “Well, he may be dirty but now he’s our guy and he’s wear i ng our uni for m. So I ’m goi ng t o r oot for him.” If he was still with the Dodgers, “Oh, I’m going to kill him.” And I think basically that’s what it comes down to. Is t her e compl i ci t y? Yes. But I have t r emendous compassi on for t he fat her —not your sel f. By t he way, I spent a l ot of t i me i n t hose dar k boxes you wer e t al k i ng about . [Laughter] And I’m not a father, the father trying to explain what was goi ng on t o hi s son who was r oot i ng for M cGwi r e or r oot i ng for [Sammy] Sosa, as an example. Again, no proof, but how do you expl ai ned what i t i s t hat we wer e wat chi ng? I mean i f what we ar e wat chi ng we can’t t r ul y bel i eve, t hen i t ’s wr es- t l i ng. I t ’s not basebal l . And how does a fat her expl ai n t o hi s son t he di spar i t y based on seasons of per for mance and then al l of a sudden t her e i s somet hi ng ver y di ffer ent ? I s t her e complicity? I believe so, but I think a larger issue here is per- SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 215 cei ved, agai n because t her e i s no pr oof, bet r ayal . MR. ORZA: Peopl e l i k e peopl e for what ever r easons t hey l i k e t hem. I mean, you k now, some peopl e ar e l i k eabl e, some peopl e ar e not . One of t he bad—I mean he won’t be offended if I use his name, I know, because he’s truly great guy and I’m going to say nice things about him. But one of the guys the press didn’t like and as a result fans didn’t like was Eddie M ur r ay. Tr ust me, i f you want t o go t o war , go wi t h Eddi e Murray; great human being. One of the greatest guys you’d ever want t o meet . I k now some basebal l pl ayer s t he fans idolize I wouldn’t play poker with them if t hey wer e fr ee. They’r e j ust not l i k eabl e peopl e. Some peopl e ar e l i k eabl e and some peopl e ar en’t . Even t he l i k er , I k now, br i ngs t o t hat some mi sj udgment somet i mes. So t her e’s no account i ng for t ast es. You k now, most peopl e i n t he spor t r egar d me as an ogr e but I have fi ve gi r l s who wi l l swear t hat I ’m t he most wonder ful fat her you coul d possi bl y have. So, hey, you k now, what can I t el l you? Di ffer ent st r ok es for di ffer ent fol k s. MR. RANDALL: And t he pl ayer s ar e hel d t o a di ffer ent st andar d. You go t o t he movi es and wat ch t he per for mances of rapacious human beings, in many cases, who exhibit horrif- i c behavi or , peopl e t hat , as Gene sai d, we woul d never ever i nvi t e i nt o our homes; but we t ak e t he pl ayer s per sonal l y. Those ar e our guys and t hey’r e supposed t o—t her e’s a cer t ai n code of conduct her e t hat t hey need t o abi de by. And we hope and pr ay t hat t her e wi l l not be a vi ol at i on of t hat code of conduct because t her e was an i mpl i ci t cont r act bet ween t he fan and the player, and that expectation that he’s goi ng t o pl ay, he’s goi ng t o pl ay har d, and he’s goi ng t o pl ay cl ean. MR. REICH: The poi nt i s t her e i s a t r emendous di ffer ence bet ween t hi s i mpl i ed conduct and expect at i on. I n t he poi nt t hat Gene was mak i ng and some of t he ot her gent l emen t hat spok e about due process, what got trampled unbelievably, and I ’ve r epr esent ed a l ot of guys i n cr i mi nal pr oceedi ngs. M y br ot her and I , who wer e i nvol ved wi t h, wer e char ged wi t h being involved with drugs. And there were a lot of guys who wer e i n t r oubl e, or who wer e l i st ed i n newspaper ar t i cl es on l i st s t hat a cer t ai n wr i t er t hat was ment i oned by Pr ofessor Goul d ear l i er who needs t o be i n I r aq. I t ’s a ver y good i dea for hi m t o st ay t her e. H e woul d cal l peopl e. H e woul d cal l guys t hat r epr esent ed pl ayer s. H e woul d cal l peopl e t hat wor k ed for associ at i ons, pr i vat e l aw- SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

216 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 yer s who wer e r epr esent i ng pl ayer s i n cases who wer e charged by the authorities. And he told them that if they didn’t cooperate—this is a writer—i f t hey di dn’t cooper at e, he was wr i t i ng t he pi ece anyway. And of course that didn’t work out so well in that conversation, but he did it anyway; the list that was written that’s supposed to be confidential when the association made the deal in the first place on a trial basis for testing. And then the evidence was snat ched befor e i t was supposed t o be dest r oyed. Thi s i s wher e due pr ocess fai l ed wi t h r espect t o t hese demands t hat our pl ayer s, our spor t , t hey can’t be doi ng t hi s. I am very anti-dr ug and I have a l ong est abl i shed r ecor d i n that regard and in confr ont i ng pl ayer s of my own. I got t ossed ar ound a coupl e of r ooms i n my day because of t hat . But this failure of due process and this attitude about the en- t i t l ement or non-ent i t l ement t o i t goes agai nst ever yt hi ng t hat our whol e syst em of j ust i ce st ands for . St er oi ds, especi al- ly anabolic steroids, they do kill you prematurely. They stink and t hey di d t ur n some peopl e i nt o fr eak s, but t her e’s al l kinds of drugs and levels that are things that people use all t he t i me. Cocai ne was hor r i bl e back t hen i n t he day. I ’ve been t o pl aces t o t el l peopl e back t hen t hat t her e was a bi g addi ct i on pr obl em goi ng on. Thi s was many year s ago, by t he way, 30 year s ago now. And cocai ne cr eat ed one of t he bi ggest scandal s i n t he hi st or y of spor t s i n t he ver y cour t r oom wher e I had wor k ed 20 year s befor e for t he chi ef j udge i n Pi t t sbur gh, Pennsylvania. Pl ease don’t for get we l ove our game, t hese k i nds of dr ugs have no busi ness i n our game but not at t he expense of due pr ocess. MR. ORZA: I know Bill has an observation and I just need, I might forget this though and I want to go back to what was sai d at t he ver y, ver y begi nni ng of t he confer ence about a l ear nabl e moment . Ther e may have been one i n t he way Fa- t her Fahey pr oposed t he quest i on. H e al l uded t o what I t hi nk he’ll agree is the Augustinian concept of, you know, hate the si n, l ove t he si nner . Wel l , for t hose of you i nvol ved i n l abor l aw, I ’ve adapt ed t hat pr oposi t i on, t hat anci ent pr oposi t i on, sl i ght l y di ffer ent . I r ecommend i t t o you i n your col l ect i ve bargaining rol es i f you’r e ever negot i at i ng wi t h anyone, whi ch is that you can hate the proposition but you should love your pr oponent . SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 217

Don’t confuse t he pr oposi t i on, don’t equat e pr oposi t i ons wi t h pr oponent s. H at e t he pr oposi t i on but l ove t he pr oponent . Your adver sar y i s ent i t l ed t o your , for want of a bet t er wor d, your l ove. What he’s pr oposi ng may be compl et el y di s- tasteful to you and you can fight it as hard as you can; but l ove t he pr oponent , hat e t he pr oposi t i on. MR. NEWHOUSE: One mor e comment on t hi s. M r . Gould? MR. GOULD: Wel l , I ’ve had a l ot of t i me t o t al k but l et me j ust mak e a coupl e of qui ck poi nt s. One i s on t hi s busi ness of par t i cul ar for gi veness or t he l ovi ng t he si nner , of cour se t ak e t he exampl e of M cGwi r e. N ow, t he pr obl em wi t h al l of t hese si t uat i ons i t seems t o me i s t hi s: The gover nment i n [the] BALCO [investigation],32 t hey wer en’t pr osecut i ng t he pl ayer s. They wer e t r yi ng t o pr osecut e t he guys who wer e feedi ng t he pl ayer s, whi ch seems t o me appr opr i at e. Now, we don’t know anything in any of t hese cal l s—at l east we, fans. I don’t k now what t he commi ssi oner k nows and he doesn’t mak e t o t he publ i c a r epr esent at i on about what he knows. We don’t know anything about what M cGwi r e, or any number of ot her gi ven guys, how t hey got t hi s st uff. Wher e di d i t come fr om? What i s bei ng done t o r oot i t out ? That seems t o me t o be; you k now, ever ybody’s talking about, I don’t care about what McGwire says about whet her i t enhanced hi s per for mance or not . We can dr aw— we’r e gr own peopl e. We can dr aw our conclusions about what he di d. But t he not i on, t he i dea t hat , so far as we’r e awar e, t he avenues of suppl y ar e not bei ng pur sued as t he r esul t of t hi s si t uat i on. N ow maybe t hey ar e, but no r epr esent at i on i s made by anyone, so far as I can see, t hat t hey ar e. The ot her poi nt about i t i s t hi s. Ther e’s a ver y del i cat e balance. The Fourth Amendment is all about balance. And what I ’ve wr i t t en about i n t hi s book i s t he quest i on of whet her Congr ess can l egi sl at e dr ug t est i ng i n basebal l . Gene says, I think I read him saying, “No, they cannot because baseball is different than horseracing in Illinois or any number of in- st ances wher e Congr ess has const i t ut i onal l y l egi sl at ed r andom dr ug t est i ng because of some per cei ved evi l t hat t he public is concerned with which will flow from it.” Now— MR. ORZA: [I nt er posi ng] I don’t want you t o be gi vi ng me

32. U ni t ed St at es v. Compr ehensi ve Dr ug Test i ng, I nc. (CDT I I I ), 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

218 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 t wo apol ogi es i n t he same day. I ’l l have a hear t at t ack . I never sai d t hat t he gover nment coul dn’t l egi sl at e dr ug t est- ing. I said it couldn’t— MR. GOULD: [Interposing] Wel l , you t al k ed about what I said about D i m eo. MR. ORZA: But no, that’s—hol d on a sec. I sai d t he government couldn’t conduct the drug testing. The United States government couldn’t come in and simply conduct drug testing. Ther e’s a bi g—I think that if Congr ess wer e t o pass l egi sl a- tion saying that henceforth all baseball players should be dr ug t est ed, t her e ar e l egi t i mat e Four t h Amendment questions involved in that. I agree with that entirely. MR. GOULD: Al l r i ght , ok ay. I r est my case. MR. NEWHOUSE: Befor e we move on t o t he next par t I want ed t o pose a coupl e of quest i ons t o our st udent s on t he panel who ar e not a chai r man of t he N L RB or t he for mer chi ef oper at i ng offi cer of t he M aj or L eague Basebal l Pl ayer s Asso- ciation and haven’t worked in a law fir m for mor e t han i n- ternships and externships. And, as a student studying labor l aw, M el i ssa, I want ed t o j ust get your i mpr essi ons of t he cur- r ent col l ect i ve bar gai ni ng agr eement or t he l abor si t uat i on that’s currently going on in baseball. M S. SCH NEER: Wel l , i t ’s t ough for me t o di scuss t he subst ance of t he cur r ent bar gai ni ng agr eement , but some- t hi ng t hat has defi ni t el y st ood out t o me about basebal l and how it differs from traditional labor and employment law that I ’ve l ear ned i n l aw school i s j ust t he way t o char act er i ze t he players at the table. I have a hard time instantly wanting to cal l t he owner s “management ” and have t hem si t on t he management si de and have t he pl ayer s “l abor ” and have t hem si t on t he ot her si de of t he t abl e. I k now we’ve di scussed numerous t i mes how t hey’r e pl ayi ng t he game and i n essence, t hey ar e wor k i ng and t hey do have r i ght s and I do bel i eve t hat . But it seems that baseball, and this is perhaps probably based on t he many year s of t ur moi l . Ther e i sn’t t hat t r adi t i onal cont r ol t hat one si de has over t he ot her . I n many ways, i t seems t hat i t ’s col l abor at i ve, but i n ot her ways I al most feel t hat t he pl ayer s, fr om what I ’ve r ead, have mor e power at t he t abl e t han t he owner s do. And maybe t he owner s have r el i n- qui shed some of t hat power for t he pur poses of l abor peace, but that’s definitely something that stood out to me as different than things that I’ve learned in law school. And, more than that, I feel that in many ways there SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 219 should be almost a third seat to the table, and that shoul d be the fans and the public. And these third parties such as, whet her i t ’s t el evi si on st at i ons or gener al fans or even t he out si de communi t i es i n some of t hese basebal l st adi ums. I i n- stantly think of the Yankees and how their stadium is located in one of t he poor est communi t i es i n N ew Yor k . I al most t hi nk t her e was a st at i st i c t hat i t ’s i n one of t he mor e poor communi t i es i n t he nat i on. And how does basebal l gi ve back to the community? Should that be something that is bar- gai ned for ? Shoul d t he pl ayer s have mor e, act ual l y, shoul d t he pl ayer s gi ve back a l i t t l e bi t mor e per sonal l y t o t he community that they play for? And I think with free agency that’s a bit difficult because their community that they play for can vary almost yearly at points. But in some ways, it’s just the fact there is this third party out t her e, t hat t her e ar e fans, and t her e’s t he communi t y at l ar ge, and basebal l , whi ch cont i nues t o pr ofi t t o a ver y l ar ge degr ee. You have t i ck et pr i ces t hat ar e al most unaffor dabl e for an everyday fan and you have television stations that are kind of ruling when and how and where these games are pl ayed. I t hi nk i n t he newest col l ect i ve bar gai ni ng agr eement, that’s something that should be addressed. Whether it’s finding a way to make ticket pr i ces cheaper or fi ndi ng a way to sort of consider that third party. MR. ORZA: You st ar t ed out r eal good, but t hen you wound up in hell. [Laughter] M S. SCH NEER: I k new you woul d say t hat . M R. ORZA: Yeah. Baseball players as union members ar e di ffer ent t han t ypi cal uni on member s because of t hei r i r- r epl aceabi l i t y. See, when For d goes on st r i k e, t he guy wel d- ing your car is his replacement. You don’t know who it is. You don’t know who welded your car. But when a player, when Yogi Berra is not catching and somebody el se i s, you can i dent i fy i t . That ’s not Yogi Ber r a. That not i on of i r r epl acea- bility actually is at the foundation of the court’s decision on per manent r epl acement s; t hat i f i n fact an empl oyer coul d not permanently replace anybody, then unions would always win. But i n basebal l t hey ar e har der t o r epl ace because of t hei r identity. Their identity is part of the product they represent. So that was a good point, but after that—we need anot her confer ence t o go over al l of t he pl aces you went t hat you shouldn’t have. SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

220 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2

[Laughter] I magi ne t he fol l owi ng scenar i o. L et me t r y t o put i t i n i t s simplest terms. If Barbara Streisand were to appear in Las Vegas and she would have a fight with a stage manager, she coul d wal k out and go pl y her ent er t ai nment talent in a nightclub in Reno, or in California, or in New York City. The reason why baseball players can’t do that is all of the owners have got t en t oget her and t hey have l ock ed up t he basebal l playing industry. Imagine a world in which singers could on- l y per for m i n venues owned by one human bei ng, one ent i t y, how t hat woul d affect what happens t her e. N ow, you don’t say, you k now, “I t cost me a $150 t o see Bi l l y Joel . I was si t- ting up in. . .” You don’t say that. Finally, the last point is, and this i s a ver y i mpor t ant poi nt from an economics standpoint and you must get this. Make this part of your, you know, your fiber, as Walt Whitman woul d say “t he fi ber of your bei ng.” Sal ar i es have not hi ng t o do with ticket prices. If they did, the Olympics woul d be fr ee. Why do t he t i ck et pr i ces al ways go up? Why does a t eam cut i t s payr ol l and r ai se i t s t i ck et pr i ces? That ’s because sal a- r i es—and any economist who has studied the industry will t el l you sal ar i es ar e a funct i on of what t he per son set t i ng t he salary—I mean t i ck et pr i ces ar e a funct i on of what t he per son set t i ng t he t i ck et pr i ce bel i eves wi l l gener at e t he most pl ausi- bl e r evenue for hi s fr anchi se or her fr anchi se. If I think I can sell 1,000 tickets at $5, and if I lower the price to $4 and I can sel l 12,000, t hat ’s not good enough. I ’m out $200; that’s $4,800. If I can sell the same number of tickets at $5.50, I’ll do it. Not because of my salaries, it’s because of t he l aw of suppl y and demand. I bel i eve t hat I can sel l tickets at $100. Ticket prices are what they are because t hat ’s what i s per cei ved t o be t he mar k et for t hose t i ck et pr i c- es, whi ch maybe i t shoul dn’t be t hat way i n a per fect soci et y. We shoul d pay our nur ses mor e t han we pay t he basebal l pl ayer s, I woul d agr ee wi t h t hat but that’s not the world we live in. But t he M et s’ t i ck et pr i ces and Yank ees’ t i ck et pr i ces ar e not a funct i on of t hei r payr ol l s. I f t hat wer e t he case, when payr ol l s went down, you woul d expect t i ck et pr i ces t o go down. You know the NCAA tournament. Last year t he NCAA tournament in basketball was $150 a ticket. I went to t he N CAA’s, i t was $25. The fi r st H ome Run ’Der bi es i n basebal l , peopl e don’t bel i eve me when I t el l t hi s but Jeff wi l l SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 221 at t est t o i t , t hey wer e fr ee. You di dn’t go, you di dn’t even pay a t i ck et t o go t o t he H ome Run Der by and pl ayer s ar en’t pai d for t he H ome Run Der by. N ow t i ck et s cost $300 t o go see t he cr azy event . I woul d never pay $300 t o go see a H ome Run Derby, but that’s what they believe they can do. If you saw t he H ome Run Der by, what di d you not i ce? M S. SCH NEER: Home runs. MR. ORZA: The stadium was packed. M S. SCH NEER: I mean I actually think that, I wasn’t meaning to insinuate that I think the high salary should cor- r espond t o a l ower t i ck et pr i ce. I do see a bi l l i on dol l ar indus- t r y wher e some of t he most l oyal fans ar en’t abl e t o at t end t he games and I— MR. ORZA: They’ve been pr i ced out of t he mar k et . M S. SCH NEER: Right, and I think that— MR. ORZA: The mar k et i s supposed t o gener at e seven bi l- lion dollars. M S. SCH NEER: I woul d t hi nk i t , or maybe i t ’s not possi- bl e, but j ust for some sor t of way t o fi nd a way, r egar dl ess of who is paid what, to make sure that those fans that are the most l oyal — MR. ORZA: This is more fun than everything you’ve hear d so far . Some day you’r e goi ng t o be a ver y pr omi nent lawyer and you’re going to raise your price from $600 to $800. And do you k now what you’r e goi ng t o do? You’r e goi ng t o pr i ce out of t he mar k et a l ot of peopl e for your ser vi ces because they could afford $600 but they can’t afford $800. M S. SCH NEER: Oh, yeah, but baseball is America’s game, you k now. MR. REICH: M or e t eams ar e pr ovi di ng, i n fai r ness t o t he somet i mes r apaci ous ment al i t y t hat goes wi t h bi g money and, oh, yes, i t ’s a pr obl em al l over our wor l d. Teams ar e doi ng a bet t er j ob now, i n t he er a of hi gher and hi gher pr i ces for qual- itative seats, in creating opportunities for the public to get economi c t i ck et s. They’r e doi ng a bet t er j ob at i t . MR. RANDALL: Connecting with their community. MR. REICH: The other thing about pl ayer s t hemsel ves i n t hei r communi t i es and ot her wi se, i n al l t hese year s t hat I ’ve been a fan and I ’ve been i nvol ved i n what ever way. I used t o get in for a buck when I went back in the ‘40’s or whatever it was. The poi nt i s pl ayer s do mor e for char i t y and mor e for communi t i es t oday by far t han t hey ever di d befor e. N ow, some of t hem, as Gene poi nt ed out ear l i er , I woul dn’t pl ay SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

222 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 pok er wi t h ei t her . But t her e ar e mor e guys t hat car e and show i t i n a meani ngful way. I s t her e a l ot mor e r oom t o do mor e? You bet ya, and your voi ce shoul d never be qui et ed for speak i ng for al l of t hose t hi ngs for peopl e who can’t affor d whatever it is; $150, $250 jerseys and this and that. Your voi ce shoul d never be qui et . M R. BELSON: I t hi nk par t l y, t oo, t he r eal i t y of most i n- come. Revenue si de of t eams i s t el evi si on now i s a huge par t of i t . MR. ORZA: L ocal t el evi si on. M R. BELSON: Local television rights, advertising. MR. ORZA: I t ’s t he best cor r el at i on t o t i ck et pr i ces and sal ar i es. M R. BELSON: Yeah. Si gnage, cor por at e sui t es at a hal f a mi l l i on dol l ar s wi t h a t hr ee year cont r act or a fi ve year con- t r act , t hat ’s wher e t hey’r e mak i ng t he bi g money. And i f you l ook at t he M et s’ st adi um bonds, 650 mi l l i on dol l ar bonds, i t doesn’t come fr om and i t ’s not bei ng off wi t h t he guy sitting in t he $11 seat . They’r e pai d off wi t h sui t es and TV money. MR. ORZA: In the first collusion case33 t he cl ubs’ own economi st s t est i fi ed t hat t he onl y cor r el at i on bet ween sal ar i es and any sour ce of r evenue was l ocal t el evi si on r evenue. That i s t hat t he Yank ees’ pay mor e t han do ot her cl ubs i s because of l ocal t el evi si on. That ’s t he best cor r el at i on. I can’t l eave without—we’r e goi ng t o have t o br eak but one st at i st i c whi ch Jeff hear d me t al k about at my far ewel l speech for t he Pl ayer s Associ at i on. M aj or L eague Basebal l i n 1969 commi ssi oned a st udy of when t he maj or l eagues began. And t hey concl uded, t hese hi st or i ans, t hat i t began i n 1876. Ther e wer e si x pr o- fessional major leagues since 1876, that’s 135 years ago. In 135 year s, t her e have been a grand total in 135 years of 17,180 or so, give or take 50, human beings who have played a day of M aj or L eague Basebal l . I f you wer e t o cal l up t he AM A t oday and ask t hem how many sur geons ar e member s—sur geons, not doct or s—ar e member s of t he AM A, t hey woul d t el l you t hat t her e ar e i n fact t oday 170,000 l i censed sur geons. Ther e ar e t en t i mes mor e sur geons t oday t han i ndi vi dual s who have pl ayed a day of Major League Baseball in 135 years. Baseball players

33. I n t he M at t er of t he Ar bi t r at i on Bet ween M aj or L eague Basebal l Pl ayer s Ass’n and the Twenty-Si x M aj or L eague Basebal l Cl ubs, Gr i evance N o. 86-2 (1986) (Roberts, Arb.). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 223 have—and this literally was my farewell speech to t he pl ayer s. N ever , ever , ever feel gui l t y about t hei r sal ar i es. They shoul d never do t hat . They ar e one of t he r ar est br eeds you’ve ever wi t nessed, 17,180, accor di ng t o t he El i as St at s Bur eau, i n 135 year s. You do t he ar i t hmet i c. MR. NEWHOUSE: And befor e we go t o Q and A I j ust want ed t o ask M r . H owes over her e, who I ’ve spok en t o sever- al t i mes i n my t enur e her e at St . John’s, he’s a bi g basebal l fan. And I wanted to ask you, as a fan, what would you add and what woul d you subt r act fr om t he game of M aj or L eague Baseball? M R. H OWES: Well, I’m glad to switch gears a little bit fr om economi cs, at l east moment ar i l y. Ther e have been numerous changes in only my lifetime, and I think there should continue to be discussions among fans and friends and lawyer s about discussions in the future of baseball. I had nar- r owed i t down t o a coupl e of r ecur r i ng t hemes t hat I ’ve en- count er ed i n heat ed di scussi ons wi t h my ver y opi ni onat ed M et s fan r oommat e. So, fi r st , we t al k a l ot about how, and I t hi nk Pr ofessor Goul d would agree with this, that the All Star game shouldn’t mean home fi el d advant age i n t he Wor l d Ser i es. I t hi nk t hat most peopl e k i nd of t hi nk t hat ’s a l i t t l e r i di cul ous. I t shoul d be an exhibition and I think that it was kind of a kneejerk reaction followi ng t he t i e a few year s ago and i t j ust shoul dn’t be i n pl ace. Secondl y, I t hi nk t he newl y pr oposed wi l d car d syst em t hat was act ual l y pr oposed t hi s past week wher e t hey’r e goi ng t o add t wo wi l d car d t eams, one i n each l eague; I t hi nk t hat shoul d be r eexami ned, per sonal l y. I t hi nk i t cheapens t he pennant r ace. I t cheapens t he r egul ar season. And we wouldn’t, if we had four wild card teams, we wouldn’t have had the season that we had this year with four teams fighting for onl y t wo spot s i n t he l ast day of the season, which, in my l i fet i me, i t was t he gr eat est day of basebal l t hat I ’ve ever seen. And, finally, and probably the most difficult situation that a lot of fans advocate for is for a hard salary cap. I’m not here t o do t hat . I t hi nk especi al l y aft er — [Laughter] M S. SCH NEER: I was goi ng t o t el l you not t o do t hat . M R. H OWES: Yeah, I ’m t r eadi ng ver y l i ght l y her e. MR. GOULD?: Wher e do you l i ve? SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

224 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2

M R. H OWES: Especi al l y aft er r eadi ng Pr ofessor Goul d’s book. Initially I think that parity in baseball i s al most at an all-t i me hi gh. I f you l ook at j ust t he l ast t en year s, t he number of t eams t hat have been compet i t i ve, t hat have made pl ayoffs, t hat have won t he Wor l d Ser i es i s i ncr edi bl e. Pr o- fessor Goul d poi nt ed out t hat t he year s 2000 and 2007 wer e the first years since the year 1900 where no teams had a higher winning percentage than .600 or a lower winning per- cent age t han .400. So, acr oss t he l eague, i t ’s pr et t y even, l at e- ly at least. And then— MR. REICH: My Pirates had less than .400. M R. H OWES: Sorry about that. MR. REICH: So am I . [Laughter] M R. H OWES: I t hi nk per sonal l y, and you’r e goi ng t o have to take this with a grain of salt because I’m a Yankees fan; I think the current system is working and I’d actually like to open i t up t o Pr ofessor Goul d because i n hi s book he r ai ses a few suggest i ons t hat peopl e have made wi t h r egar d t o mi ni- mum payr ol l r equi r ement s, scal ed i nver se t ax on l ow payr ol l t eams, and at t endance i ncent i ves i n or der t o i ncent i vi ze owner s t o r ei nvest what t hey get i n r evenue shar i ng pr ocess i n t hei r t eam r at her t han k i nd of j ust pock et i t . And so I don’t know if you had any. . . MR. GOULD: Wel l , I don’t want t o t ak e t oo much t i me, but I think that if I read the current collective bargaining cor- rectly I think that there is a movement t owar ds compel l i ng or i nduci ng t he t eams, you k now, t he l agger s, t o spend mor e money on payr ol l t han t hey have pr evi ousl y. I mean t her e’s a pr ovi si on i n t he cur r ent col l ect i ve bar gai ni ng agr eement t hat gi ves t he commi ssi oner an aut hor i t y t o i nt er vene. And only i n one i nst ance t hat I ’m awar e of have t hey t ak en a l ook at the club, the Marlins. The union and the commissioner l ook ed at t he M ar l i ns. I t hi nk t hat t her e’s a movement mor e towards that; I think that probably will be the big change in r evenue sharing. You can call it a de facto minimum payroll if you want, but I think there is a movement in that direction. And it is abuse. I mean if the—we t al k ed about t he Pi r at es i n this connection and the Marlins in the past. The Marlins have a ball park now, so I don’t think the Marlins are going to be a pr obl em i n t he fut ur e. Al t hough t he Pi r at es al so have a great ball park and they are a problem. MR. REICH: Well, they’ve had a great ball park but the SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 225 guy’s still been putting the money in his pocket. H owever , i t i s goi ng t o be i n t hi s new agr eement . MR. ORZA: Goi ng back t o t he ver y begi nni ng wher e we t al k ed about how al l negot i at i ons ar e t he chi l d of t he negot i a- t i ons t hat have gone befor e. I f you l ook at and car r y t hat principle out forward, it’s a shor t r oad fr om t he pr oposi t i on. I f you’ve agr eed t o a mi ni mum, why woul dn’t you agr ee t o a maxi mum? So t hat ’s why you won’t see t he Pl ayer s Associ a- t i on, and i n t he next basi c agr eement I can guar ant ee you won’t t o see an absol ut e mi ni mum. Bi l l i s qui t e right. There wer e pr ovi si ons t hat r equi r ed r evenue shar i ng dol l ar s t o be spent on devel opment . Agai n, as we wer e among t he ar guer s i n favor of t he pr oposi t i on, who’s t o say t hat t ak i ng r evenue sharing dollars and hiring a better general manager or im- pr ovi ng or spendi ng t he dol l ar s t o r evamp your fi el d t o mak e i t easi er or har der for peopl e t o hi t home r uns ar e not t hi ngs that will benefit your club? So t he acqui si t i on of pl ayer s i s not t he onl y component of a winning strategy. But there is an effort and t her e wi l l be i n t he next col l ect i ve bar gai ni ng agr eement , I ’m sur e. Some- thing more than simply that the club shall endeavor to do t hi s, t her e ar e goi ng t o be ways of t est i ng whet her i n fact t hey ar e. And so t her e i s movement ; Bi l l i s qui t e r i ght , i n t hat di- r ect i on; but you wi l l never see a mi ni mum. The final point in that area that you should pay attention t o goi ng for war d when or i f you hear about a new deal i s t hat t he not i on of t axes cont empl at es t hey wi l l be pai d. Ok ay? A compet i t i ve bal ance t ax which no one pays is a salary cap because no one i s payi ng above t he t hr eshol d of t he t ax. So any- time you institute a tax system it must be set at a level such t hat peopl e wi l l pay t he t ax. And t he bi g t est of t hi s next agr eement i s goi ng t o be, I t hi nk , wi l l t he t axes t hat ar e goi ng t o be i mposed upon t he dr aft ed i ndi vi dual s oper at e as a cap because, i f t he t ax t hr eshol d i s si mpl y a synonym for a cap, t hen t he Pl ayer s Associ at i on has some r ough r oads ahead of it. When we negot i at ed t he ver y fi r st compet i t i ve bal ance t ax that was something we insisted on, that this can’t be a threshold that is so high that nobody will pay it because if no one’s payi ng i t we’ve agr eed t o a sal ar y cap and we di dn’t go on strike for 238 days to get a salary cap. M R. BELSON: Yes, it’s worth remembering that Pitts- burgh, Miami, and, sorry to bang on the same drum, don’t SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

226 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 have t hei r own i ndi vi dual r egi onal spor t s net wor k s. So, say what you will about their individual owners and their propen- si t y t o spend, but t hey have fewer r esour ces i n t hat r egar d. U nl ess t he Pengui ns, St eel er s—wel l , i t ’s not t he St eel er s. Penguins and Pirates band together and maybe form an RSN they might have. . . MR. ORZA: They’ve t r i ed. M R. BELSON: They did try? Okay. MR. ORZA: They fai l ed. M R. BELSON: Failed? Anyhow. MR. NEWHOUSE: Okay. So I think we’ll open this up to t he fl oor t o ask t he panel some quest i ons. FEMALE VOICE: Do you want me t o do a mi c or j ust shout it out? MR. NEWHOUSE: We’l l see how t hat wor k s. FEMALE VOICE: I t ’s a t wo par t quest i on goi ng back to the drug testing issue and the Fourth Amendment. They have been doi ng i t for mi nor l eagues, I ’m cur i ous as t o whet her anybody has been prosecuted or anything from that. And then, i f Congr ess i s hel l -bent on t r yi ng t o get M aj or L eague Base- ball to do t est i ng, i f t hey gr ant ed i mmuni t y t o ever yone fr om pr osecut i on, woul d t hat sol ve t he i ssue? MR. ORZA: Yes. M y opposi t i on t o r andom dr ug t est i ng would decrease substantially if it was accompanied by a promi se t hat t he gover nment woul d gi ve me whi ch woul d say, and, by t he way, t he gover nment i s not just t he feder al gover nment . I t ’s t hose st at e and count y and l ocal pr osecut or s t hat mi ght mak e a name for t hemsel ves pr osecut i ng M ar i on Jones or Gene Or za, whoever i t may be. Yes, i f i t wer e accompani ed by a pr omi se fr om gover nment al aut hor i t i es t hat t he evi dence wi l l be i nadmi ssi bl e i n any pr oceedi ng, yeah, my opposi t i on t o r andom dr ug t est i ng woul d di ssi pat e. FEMALE VOICE: Do t hey k now t hat ? MR. ORZA: Does t he gover nment k now t hat ? You don’t really think the gover nment i s goi ng t o be abl e t o enact l egi s- l at i on whi ch says we won’t use evi dence of a cr i me? FEMALE VOICE: No, but the hearings and the Congress dr aggi ng ever ybody i n. I s anyone t hr owi ng i t back t o t hem saying, if you do this, fine. MR. ORZA: That ’s j ust not r eal i st i c. I t ’s not goi ng t o happen. FEMALE VOICE: And then regarding the ticket issue—if you have quest i ons about t i ck et i ng, i t pays for al l of t hat . SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 227

MR. REICH: Ther e i s no way t o go. FEMALE VOICE: It’s an important point to under- st and.— Di d you donat e t i ck et s? Di d you? But wi t h t he econ- omy one of t he bi ggest i ssues we have i s even when you’r e donat i ng t i ck et s peopl e have t o get t her e, and t he communi t i es cannot affor d t he buses t o br i ng t hem. Ther e ar e a l ot of ot h- er fact or s as wel l , so i t ’s ver y t ough for t he cl ubs. They do t r y t o do t hi ngs t o t r y and mak e t hem mor e affor dabl e but i t ’s not t hat si mpl e because of ot her aspect s. FEMALE VOICE 2: A t wo par t t hank you, one par t comment and a query. Mr. Randall, thank you very much on your conver sat i on about compl i ci t y. H avi ng been i mmer sed i n t he most r epul si ve r eal est at e cl i mat e for year s, you speak i t al l because i t was ever ybody’s faul t . And t hat envi r onment i n r eal est at e as wel l as spor t s, ever ybody k new what was goi ng on; you know, t he manager s, t he l awyer s, t he br ok er s. I em- br ace your answer and your r esponse. I ’d l i k e t o hear t he ar- gument ended as wel l . M r . Or za, I al so t hank you for your r efr eshi ng r eact i on on t he i ssue of per sonal i t i es and di sposi t i ons. As a confi dent , compet ent , and not i nt i mi dat ed femal e at t or ney for 27 year s, I ’d add ego t o t hat . I r el i sh t he oppor t uni t y t o be one of t he pr ofessi onal s at an i nt el l ect ual l evel wher e t hey can r emove t hei r own per sonal i t i es and di sposi t i ons fr om t he i nt er act i ons. And l ast but not least, touching a little bit on the criminal- ity issues that have been presented. In my ethics class this week we cover ed ani mal r i ght s and of cour se M i chael Vi ck , and raised some really important questions and thoughts because I am a constitutionalist and a fi r m bel i ever of r ehabi l i- t at i on, second chances, and debt t o soci et y. But , you k now, particularly in that scenario, which is far worse than drugs, you know, you have individuals who make mistakes, but t hese ar e i ndi vi dual s who ar e t r ai ned and gr oomed t o be pr o- fessionals and carry themselves as such. And when they engage i n t hese i l l i ci t , you k now, behavi or s, of cour se ani mal abuse—coul d we possi bl y l egi sl at e, you k now, mor e et hi cal exampl es? You k now, when you l ook at spor t s t eams t hat put t hem back t o wor k ; as you sai d, t he fans ar e compl i ci t , we want t o see t hem on t he fi el d. But , you k now, coul d we possi bl y l egi s- l at e for t hat and say, “N o, t hi s i s wr ong. You k now, t hese ar e our r ol e model s.” I j ust wonder how you’d r espond t o t hat . MR. ORZA: Well, is it the legislation that provided a sen- SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

228 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 t ence for t he cr i me, t he ver y essence of what you’r e t ak i ng about ? You j ust want t o i ncr ease t he cr i me r at e t hen, t he cr i me penal t y t hen, r i ght ? I mean you don’t need addi t i onal , l et ’s say, I don’t k now what the rule is but let’s say that steal- ing hot dogs from a ballpark is a class E felony punishable by no mor e t han one year i n j ai l . You coul d l egi sl at i vel y mak e that, because you regard it as a particular heinous crime, a three year punishment. Michael Vi ck ser ved what ever t he punishment was that was imposed upon him by the judicial syst em. I t may not have been enough for peopl e. Thei r r e- cour se i s t o get t he puni shment up l egi sl at i vel y, i f t hat ’s t he case. But t he whol e quest i on of r ol e model s i mpl i cat ed in that to—and i f wher e you’r e goi ng i s t hat t her e shoul d be speci al r ul es for empl oyer s of peopl e t hat you t hi nk ar e r ol e model s, wel l , t hat ’s pr et t y sel ect i ve. I mean i n 1957, and you’r e t oo young to remember this but Bill will; in New York City Mick- ey Mantle, Hank Bauer, Billy Martin and Whitey Ford went t o t he Copacabana and one of t hem punched a wai t r ess. And i t was a huge, huge t hi ng. Dai l y N ews, N ew Yor k Post , even t he N ew Yor k Ti mes cover ed i t . 34 We cover ed i t for about a week and a hal f i n N ew York City. I idolized Mickey Mantle. I thought he was the greatest thing since sliced rye bread, but I di dn’t t hi nk because I i dol i zed M i ck ey M ant l e t hat t her efor e i t was easi er or mor e j ust i fi abl e t o punch a wai t r ess. I di dn’t think that. I think quite cont r ar y t o most peopl e, I guess, who have t al k ed on t hi s subj ect and maybe most peopl e i n t he r oom. Talking again about teachable and learnable moments, a chi l d’s di sappoi nt ment i n somebody i s not so much t o be fear ed as t o be gr asped. I t ’s a l ear ni ng opportunity. It’s a t eachi ng oppor t uni t y for hi s fat her or mot her , t hat , you k now, “Johnny, I know you love this guy, but here’s what the issue is and here’s why you shouldn’t be doing this. And here’s why you shouldn’t put that much stock in these guys,” et cet er a, et cet er a, et cet er a. That ’s t he bet t er r esponse, t he mor e con- structive response, than simply throw up your hands and say, “Oh, my Johnny l oves M i ck ey M ant l e. N ow he’s goi ng t o go out and punch waitresses.” That’s not the right way to ap-

34. Yanks Play the Copa, N.Y. TIMES, May 16, 1957 http://www.nytimes.com/packages/html/sports/year_in_sports/05.16.html (actually Bau- er was accused of hi t t i ng anot her pat r on wi t h whom t he Yank ees wer e fi ght i ng). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 229 proach i t . I t hi nk t hat t hese ar e oppor t uni t i es. They’r e not t hi ngs t o be decr i ed necessar i l y. When peopl e mi sbehave and you ar e wor r i ed about chi l dr en, I t hi nk t he best t hi ng you can do i s sei ze t hat moment and t each t hat k i d somet hi ng by vi r- t ue of what he has just or she has just wi t nessed. FEMALE VOICE 2: Actually, I think you misinterpreted t he meani ng because I fal l on t he same si de. You k now, a l awyer can l ose hi s l i cense. A doct or can l ose hi s l i cense. But t hese ar e t he unfor t unat e i ssues i n our democr acy wi t h our Const i t ut i on. We don’t have t he r i ght ; t hey ser ved t hei r sen- t ences, ok ay. And we don’t have t he r i ght t o l egi sl at e per sonal ethics in all instances in business. And I do look at it as t hat moment , you k now. And t hose woul d say i t doesn’t be- l ong her e. We don’t have t hose st r uct ur es and t her e ar e r easons for t hat . You can’t deny t hem t hei r fr eedom because of that. But thank you very much, I enjoyed your response and I l ove t hose t eachabl e moment s. They’r e gr eat , yes. MR. RAY BERNIE: My name is Ray Bernie, class of ‘83. I spent my l i fe and car eer i n publ i c sect or col l ect i ve bar gai n- i ng but my quest i on t r anscends al l of pr ofessi onal spor t s. I think it’s accurate to say that public perception is, as Mr. Or- za poi nt ed out , a ver y smal l number of peopl e who mak e a l ot of money; baseball players, football players, basketball player s, owner s who mak e a l ot of money. But we al l see t he st o- r i es of t he i nj ur ed foot bal l pl ayer who doesn’t have any money t o pay hi s bi l l s, t he boxer who doesn’t have any money who’s 35 year s ol d. M y quest i on t o al l of you because you al l r epr e- sent different portions of that individual superstar, where does t hat r esponsi bi l i t y fal l , i n your est i mat i ons, t o mak e sur e that the 20-year -ol d who get s a 30 mi l l i on dol l ar cont r act i sn’t poor and has no medi cal cover age when t hey’r e 55-year s-ol d ? Is that still with the union? With the agent? With the management ? And, i f my per cept i on i s cor r ect , i s i t t hat t hese t hi ngs ar e not addr essed or have t hey been addr essed and i t ’s j ust not t he st or y we see i n t he newspaper s? MR. FANNELL: I guess I ’l l answer si nce no one el se does. MR. ORZA: I was goi ng t o say, “Jeff, hel p me out her e, will you?” MR. FANNELL: I think that when we hear the stories in t he newspaper s and we see t hese st or i es; I mean t hey r eal l y pull at our heartstrings, but I think one of the things you have t o k eep i n mi nd i s t hat t hat ’s not t he r ul e. I bel i eve t hat a l ot of t he pl ayer s and a l ot of t he at hl et es ar e get t i ng t he SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

230 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 t ype of counsel you’r e t al k i ng about . Wher e does i t come fr om? I t ’l l come fr om t he agent s. I mean especi al l y now, you see a l ot of t he l ar ger agent gr oups t hat do a l ot mor e t han j ust negot i at e t he cont r act s. They pr ovi de a whol e host of services from physical training, getting nutritionists, but also fi nanci al ser vi ces as wel l . Those t hi ngs ar e avai l abl e, so agent s ar e doi ng t hei r j ob. The uni on i s al so concer ned about t hat and we have a l ot of for mer pl ayer s who wi l l wor k wi t h t he uni on and t r y t o mak e sur e t hat we don’t have t hose hard luck stories, but you’r e not goi ng t o be abl e t o be 100% successful i n t hat . I t hi nk t hat when you see foot bal l pl ayer s, for exampl e, you k now, one of t he t hi ngs when you l ook at t hei r cont r act s, t hey’r e so cal l ed guar ant eed cont r act s. Ri ght ? Whi ch ar e on- l y t o t he por t i on of t hat si gni ng bonus t hat t hey r ecei ved. Other than that, a football player can have a long-t er m contract and be cut and he’s not really entitled to much after that. So I think that’s part of what you see in football. Boxing is a whol e di ffer ent ani mal . I t hi nk t he under bel l y of boxi ng i s t er r i bl e. But I do bel i eve t hat when you l ook at i n the main, that athletes are getting more advice today than t hey have been, but i t ’s not goi ng t o be abl e t o be successful 100% of time. M R. RE I CH : I t ’s a l ot , t he pr obl em i s, t he quest i on i s a ver y good one because t her e ar e st or i es t hat r each t he pr ess of guys t hat ar e br ok e, who have made mi l l i ons and mi l l i ons of dol l ar s dur i ng t hei r car eer i nvi t es t hi s. The pr obl em has var- i ed over t he year s but now t he money i s so much gr eat er and so i s t he number of peopl e i n t he i nvest ment si de, i n any si de. They ar e some of t he smar t est and t he best peopl e I k now t hat ar e al so some of t he wor st peopl e t hat I have ever seen. So t he hor r or st or i es wi l l al ways continue. There’s a lot of corruption running around anywhere wher e t her e i s a l ot of money i nvol ved, and t he pr obl em has become si gni fi cant l y wor se because t he st ak es ar e hi gher . Ther e ar e a l ot of t he best money manager s exi st i ng t hat ar e available t o pl ayer s or anybody of weal t h i f somebody car es enough t o mak e t he r i ght r ecommendat i ons, but most of al l i f t he ent er t ai ner s or at hl et es t hemsel ves ar e wi l l i ng t o l i st en and t ak e t he advi ce. Somet i mes t hei r own fami l i es r i p t hem off. MR. ORZA: Ther e ar e pl ent y of ent i t i es t hat bear r esponsi bi l i t y for t he ci r cumst ance you descr i bed. L et ’s not l eave out SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 231 t he cour t s. Somet i mes you don’t under st and or don’t see t he i mpact of what you’r e doi ng unt i l l at er on. And t he foot bal l situation, I think, is a good illustration of that, that we’re see- i ng now i n r et i r ed foot bal l pl ayer s somet hi ng t hat we had no r eason t o bel i eve we woul d see 25, 30 year s ago. And t hat poi nt s out t he quest i on of whet her or not t he Supr eme Cour t ’s deci si on of t he chemi cal wor k er s35 shoul d be r ever sed, and t hat al l owi ng a uni on t o negot i at e on a mandat or y basi s on behal f of r et i r ees. Now, I understand that’s a small anecdotal basis upon which to hinge that but in certain endeavors you don’t under- st and t he di mensi ons of your pr obl em unt i l much l at er , aft er t he per son may have l eft t he wor k for ce. And yet t hat ’s a per mi ssi ve subj ect of bar gai ni ng. We used t o have t hi s fi ght i n basebal l al l t he t i me wher e t he ol der pl ayer s woul d come and say, “We want eight million dollars.” And I would tell t hem, “I f I ask for ei ght mi l l i on dol l ar s for r et i r ees, t he fi r st r esponse t o me woul d be, ‘Ok ay. N ow, I k now t hat ei ght mi l- l i on dol l ar s i s not par t of your pr oposal because I ai n’t t al k i ng t o you about i t . I don’t have t o under t he chemi cal wor k er s’ deci si on. You’r e t al k i ng about r et i r ees. They’r e no l onger empl oyees. You don’t r epr esent t hem for t hese pur poses.’” And get t i ng t hat poi nt acr oss was ver y, ver y di ffi cul t . So the first thing is whether or not unions should be au- t hor i zed t o conduct negot i at i ons on behal f of r et i r ees, whet her t hat quest i on shoul d be r evi si t ed. The second i s whet her t he courts have let many, many institutions get away with the most l i ber al , I use t he wor d advi sedl y, t he most l i ber al i nt er- pretation of what an independent cont r act or i s. I mean i f you t hi nk cab dr i ver s ar e i ndependent cont r act or s, I woul d l i k e t o k now who made t hei r ai r condi t i oner because I want t o i nhal e i t t oo. When El l i ot Spi t zer was gover nor he under t ook a st udy of how many dol l ar s ar e l ost by vi r t ue, or not pai d on behal f of peopl e. Boxi ng—i f you t hi nk boxer s ar e i ndependent cont r ac- t or s, t hey’ve got t en away wi t h mur der , t he peopl e who have asser t ed t hat . So i t ’s ver y, ver y har d for boxer s t o or gani ze because t hey’r e so-cal l ed i ndependent cont r act or s. We have agent s who l i k e t o pr et end, and Jeff wi l l at t est t o t hi s t o, l i k e t o pr et end t hey’r e i ndependent cont r act or s. And I al ways t o

35. Allied Chem. & Alkali Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

232 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 them “And what other institution do you work for?” Because i ndependent cont r act or s t heor et i cal l y wor k for , a guy wi l l si gn himself, will work with the Tom Reich agency. And I’ll say, “Ok ay. Who besi des Tom Rei ch do you wor k for ?” “Wel l , I on- l y wor k for Tom Rei ch.” “Wel l , don’t i ndependent cont r act or s, l i k e my ai r condi t i oner guy, wor k at di ffer ent pl aces?” I mean, you know. The l aw of i ndependent cont r act or has t o be r evi si t ed and that will have some impact here. But, that said, there’s enough bl ame t o go ar ound, i ncl udi ng at t he Pl ayer s Associ a- t i on l evel , for mul at i ng agr eement s whi ch ensur e peopl e who have contributed t o t he game ar e t ak en car e of i nt o t hei r l at er year s. MR. NEWHOUSE: I can hear peopl e’s st omachs gr um- bl i ng, so we’l l j ust have one mor e quest i on i n t he back . MR. ORZA: Oh, t hi s i s fun. H ave some mor e. Why do we have t o l eave? MALE VOICE 2: I’m a management si de l abor and empl oyment l aw at t or ney. As a fan, I don’t want t o see dr ug use of any t ype of pl ayer s. As a guy who, l i k e M r . Randal l , spends— I ’m i nt er est ed t o hear fr om t he t heol ogi ans on whet her i t ’s appr opr i at e t o puni sh t he pl ayer who has used dr ugs because of soci o-economi c back gr ound, addi ct i on, or should we punish them the same way as we punish a man who used dr ugs for economi c r easons. MR. FLANNIGAN: Joe? Go for i t , Joe. M R . F AH E Y: Well, I’m a theologian but I’m a little bit out of my fi el d on that one. You want to know if punishment for a pl ayer shoul d be t he same as t he puni shment for , l et ’s say, a poor guy who uses dr ugs? MALE VOICE 2: Well, a player is using drugs or recrea- tional drugs or because of a disability, an addiction, because i t ’s par t of hi s soci o-economi c cul t ur al i mage ver sus a pl ayer who doesn’t have any of t hose di sabi l i t i es or evi dence, and deci des he’s goi ng t o consume dr ugs for economi c or compet i t i ve advantage. M R . F AH E Y: I ’m goi ng t o pass. I don’t k now enough about it. MALE VOICE 2: The penal t y—secondl y, shoul d t he penal t y for t he ut i l i zat i on of t he dr ug be t he same? M R . F AH E Y: I don’t know that. MR. FLANNIGAN: I’m just trying to understand the quest i on her e. SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 233

MALE VOICE 2: I s i t mor al ? You k now, when I went t o law school in first year of law school I studied criminal law. The first thing in criminal law that you study is “Why does a ci vi l i zed soci et y puni sh?” And I was t aught t hr ee r easons: r e- form, rehabilitation, blah, blah, blah. I was taught that and, you k now, in the — MR. ORZA: You coul d have pul l ed a Ri ck Per r y t her e and for got t en t he t hi r d one. I t woul d have been anot her t eachi ng moment . [Laughter] MALE VOICE 2: So, you k now, t he i ssue for me i s, i s i t mor al t o do so? I s i t mor al t o di ffer ent i at e or t o l ook at fac- t or s, when t he cr i me i s dr ug use? What ’s t he der i vat i ve r eason for dr ug use? Shoul d t her e be a mor al di ffer ent i at i on? MR. FLANNIGAN: Ok ay. I t seems t o me, as you r ead t he newspaper r epor t s, when you have peopl e who ar e br ought befor e t he cour t s they speak about their harsh upbringing or t he r eal i t y of t hei r pr esent economi c si t uat i on, t he j udge mi ght expr ess some l eni ency t owar ds t hat per son but t he per- son st i l l has t o ser ve some sor t of sent ence. I n t er ms of mor al cul pabi l i t y t her e mi ght be l ess mor al —or t her e mi ght be l ess cul pabi l i t y but st i l l t her e i s t he same l egal r esponsi bi l i t y, i f t hat mak es sense. MALE VOICE 2: I guess t he quest i on i s, i s i t appr opr i at e t o puni sh someone mor e for economi c gr eed t han i t i s for di s- ability or addiction, from a mor al vi ewpoi nt ? MR. FLANNIGAN: Can I just say—can I do what I would do wi t h my st udent s? Do you have—can we hear your own thoughts on that? MR. ORZA: Per for mance enhancement ? MALE VOICE 2: I ’m an empl oyment l awyer as wel l as a l abor l awyer . You k now, I r epr esent management and t he first thing that management always gets accused of is they’re gr eedy, t hey’r e gr abbi ng for money, t hey’r e t r yi ng t o be un- j ust . And her e management has effect i vel y sai d we’r e not going to punish the player who’s making that or using that same gr eedy mot i ve any di ffer ent l y, r i ght ? As a pl ayer who might be using a drug because of a disability. And the law cer t ai nl y di ffer ent i at es bet ween someone wi t h a di sabi l i t y versus someone without a disability using drugs. M R . OR ZA: I ’m j ust wonder i ng i f your pr emi se i s cor r ect . L et ’s t ak e, at l east l et ’s di st i ngui sh, fi r st of al l , bet ween dr ugs of abuse and performance enhancing substances. When you SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

234 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 discipline a player for a drug abuse use, that penalty is re- viewable under the just cause standards in the contract and arbitrators will bring exigent circumstances into that. L et ’s t ak e St eve H owe’s case. 36 St eve H owe, r i ght l y or wrongly, was diagnosed only after an arbitration by a panel of doct or s or der ed by an ar bi t r at or t o conduct t he eval uat i on. We can speak mor e fr eel y now about St eve because unfor t u- nat el y he’s passed away. I r epr esent ed St eve H owe i n t he St eve H owe case and I had no qual ms what soever about r ep- r esent i ng a guy who was suspended seven t i mes. H e was suffer i ng fr om adul t at t ent i on defi ci t di sor der . I under st and t her e ar e doct or s who di sput e t he ver y exi st ence of t hat condi- t i on, but t he fact i s t hat he was mi t i gat ed somewhat t he way t he ar bi t r at or appr oached him. So we do have ways of di st i ngui shi ng bet ween t he i ndi vi d- ual who does somet hi ng for economi c r easons as opposed t o some who mi ght do t hem because of an addi ct i on or some- t hi ng el se. But t her e i s ver y, ver y l i t t l e evi dence i n t he case of per for mance enhancing substances, and I put to the side the quest i on of amphet ami nes. I can see amphet ami nes mor e as restorative than in fact performance enhancing. The United States military gives airline pilots in no fly zones ampheta- mi nes. They don’t do i t publ i cl y but they do in fact. Put amphet ami nes t o t he si de. There’s no known addictive capacity with respect to things l i k e anabol i c st er oi ds, at l east not enough t o or no one i n t he scientific community is certain about that. So that’s a little bi t di ffer ent because t her e i s no per son who uses st er oi ds who i s doi ng i t because he’s addi ct ed t o usi ng t hem. H e i s t ypi cally using it because he wants to enhance his performance or r est or e a for mer l evel of per for mance. But t her e i s wher e an economi c i ssue does come i n because, and I think the moral distinction is based upon our ver y humani t y. You have mor e sympat hy for t he fol l owi ng i ndi vi dual , I don’t mean t o dr aw a st er eot ype but t hese peopl e exi st . I ’ve r epr esent ed t hem. The bor der bet ween t he U ni t ed St at es and M exi co r epr e- sent s t he gr eat est di spar i t y i n weal t h i n t he wor l d i n t er ms of a si ngl e bor der wi t h t he except i on of N or t h and Sout h K or ea. Ok ay? I n ot her wor ds, peopl e i n t he Sudan ar e poor er t han

36. Major League Baseball Players Ass’n v. Commi ssi oner of M aj or L eague Base- ball (1992) (Nicolau, Arb.). SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 235 t hose i n M exi co but Sudan’s nei ghbor s ar e al l equal l y poor . The gap bet ween L at i n Amer i ca and t he U ni t ed St at es i s enor mous. N ow, you have a pl ayer who l i ves wi t h hi s common l aw wi fe and hi s mot her , who i s mar r i ed t he second t i me, her husband. H e has a chi l d. Those fi ve peopl e l i ve t oget her wi t h another aunt and t wo chi l dr en. Ei ght peopl e i n a one-r oom home i n t he Domi ni can Republ i c i n San Pedr o de M acor i s. A scout comes to him and says, “You know, if you don’t play Ma- j or L eague Basebal l you’r e goi ng t o mak e $30 a mont h for t he r est of your l i fe.” Now, that guy is thinking, although he’s not saying it out l oud, now l et me get t hi s st r ai ght now. I f I can get home r un power , my chi l dr en wi l l l i ve a l onger l i fe. They have bet t er hospi t al s. M y k i ds wi l l gr ow maybe t o become a doct or or a l awyer or a pr ofessor at St . John’s L aw School , as opposed t o somebody. . . You k now, t he sheer pover t y t o whi ch I am r el- egat i ng my fami l y ver sus t he enor mous economi c r ewar d, wher e do I si gn up? Because I have an obl i gat i on t o my family. That’s not to justify his using it. He’s wrong. But the mor al di st i nct i on bet ween t hat guy and some ot her per son i n l ess exi gent ci r cumst ances, I mean i n di ffer ent ci r cumst ances I should say, is part of our humanity. We make these judgment s al l t he t i me. I feel sor r i er for t he guy who fel l i nto that quagmi r e t han I do for t he guy who was a chi l d of pr i vi l ege and just did it because he thought he was going to make his r i ght ar m st r onger t han i t ot her wi se woul d be t o t hr ow a baseball. So I t hi nk a l ot of, I ’l l l eave i t t o t he t heol ogi ans, but I ’ve r ead a l ot of t heol ogy and you may have gat her ed as much. And I maj or ed i n Gr eek and I ’ve r ead a l ot of t he gr eat Gr eek phi l osopher s. Ther e i s a l evel of cul pabi l i t y t hat i s affect ed by t he essence of our ver y humani t y. We have a cogni t i ve capa- bility that allows us to empathize, allows us to sympathize. And t o deny us, t hat i s, t o deny par t of who we ar e. And so it’s natural that all these dark black and white rules about this guy should be punished the same as this guy when t hey’r e i n fact di ffer ent human beings. I don’t think many t heol ogi ans woul d have t he same pr obl em you do or you al- l ude t o, I shoul d say. I ’m not sayi ng you have t hat pr obl em. They don’t have that problem because I think they understand that. Part of theological analysis has always been t he SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

236 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 humanity of which we are inspired. MR. NEWHOUSE: And we can continue this discussion definitely during lunch. And I just want to turn the micro- phone over t o Pr ofessor Gr egor y. PROF. GREGORY: I agr ee wi t h Gene. Thi s i s gr eat fun. I t ’s gr eat fun to listen. And Bill Gould had the first word, the i nt er medi at e wor d; he wi l l have t he l ast wor d. H e has ver y gr aci ousl y agr eed at some poi nt dur i ng t he l unch t o open things up to continuing Q and A. So we’re going to do that. And lunch will be downst ai r s as soon as fol k s meander down. I t wi l l be i n t he sol ar i um r i ght off t he cafet er i a. I woul d l eave, I suppose, t wo open quest i ons. Shoul d Penn St at e U ni ver si t y uni l at er al l y cancel i t s foot bal l season i n t he comi ng year ? And ext r eme fi ght i ng, so cal l ed, has come t o M adi son Squar e Gar den. H ave any of t he maj or spor t s l eagues or uni ons or any combi nat i on t her eof obj ect ed? MR. ORZA: I ’l l t ak e t he fi r st one. Somebody el se can t ak e t he second one. I have a ver y st r ong vi ew on t he Penn St at e situation and it may not be a majority view but I’ll share it wi t h you anyway. I bel i eve t hey shoul d have cancel l ed t he season but pr eci sel y so t hat when t he st udent s and t he foot- bal l pl ayer s obj ect ed, sayi ng, “But we’r e not r esponsi bl e for any of this. Why are you punishing us?” It was a teachable moment for t he uni ver si t y. They coul d have t ur ned t o t hose st udent s and t hose foot bal l pl ayer s and sai d, “I t ’s onl y a foot- bal l game. The r eput at i on of t hi s uni ver si t y i s on t he l i ne. We have an obl i gat i on t o do somet hi ng dr amat i c her e. We have an obl i gat i on t o t each peopl e we wi l l not t ol er at e t hat . And t he sacr i fi ce t hat ’s bei ng ask ed of you—so you don’t pl ay foot bal l game, bi g deal . I t ’s onl y a game.” I n t he N CAA col l ege at hl et i cs, get t i ng acr oss t he not i on that they ar e onl y pl ayi ng a game i s a ver y, ver y i mpor t ant message t o be sendi ng t o our st udent s and our at hl et es because we ar e spendi ng so much capi t al of our i nt el l ect ual and our moral capital in college athletics in a bad way that I think it was a great oppor t uni t y for Penn St at e t o have ant i ci pat ed t he r eact i on, how negat i ve i t woul d have been, and t ur ned that around on the students and the football players and said, “Yes, that’s right, but it’s only a football game. This is more i mpor t ant . We ar e about t he business of fixing what’s happened her e t o mak e sur e i t never happens agai n, and t hat ’s wher e we’r e devot i ng al l of our ener gi es.” That woul d have been the smart thing, I think, to do. SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

2012] Labor Relations and the Future of Professional Baseball 237

M R . BE L SON : Act ual l y, I ’d go one st ep fur t her and mak e it a teachabl e moment for t he donor s who woul d pr obabl y mak e t he same ar gument t hat t hey’d l i k e t o see t hei r money being put to use on Saturday afternoons. And those donors effect i vel y cont r ol t he boar d of t r ust ees. MR. ORZA: That ’s how bad i t i s. I don’t k now i f you wat ched t he pr ess confer ence wer e t he vi ce chancel l or of Penn St at e announced t he t er mi nat i on of [head foot bal l coach Joe] Paterno and [university president Graham] Spanier. That was st affed by t he net wor k s wi t h spor t s wr i t er s. I t wasn’t staffed from the national news desk. And the very first ques- t i on, as Casey St engel woul d say, “You can l ook i t up.” The ver y fi r st quest i on t he vi ce chancel l or of t he uni ver si t y got was not “What ar e you doi ng about t he vi ct i ms,” or “Who’s i n- vestigating that?” It was “Who i s goi ng t o coach t he t eam on Saturday?” I mean I understand why we can laugh now, but just think about t hat for a second. At t he t i me, I al most br ok e my t el e- vi si on. What j er k ask ed t hat quest i on i n a moment l i k e t hi s? But that’s symptomatic of what he’s talking about, that we coul d send l ot s of medi a fr om t he spor t s depar t ment , not fr om the national news desk, and the first question would be, when i t ’s been r eveal ed t hat for ni ne of t he t en vi ct i ms wer e vi ct i ms aft er t he fi r st vi ct i m. You k now, i t was not al l on one day, t hat ’s over a l ong per i od of t i me. These chi l dr en ar e get t i ng, t her e ar e chi l dr en, al l egedl y at l east , get t i ng r aped and fi r st quest i on you’r e goi ng t o ask me about i s not what evi dence i s bei ng suppl i ed t o demonst r at e t hat or t o confirm that but who’s goi ng t o coach t he t eam—football team on Saturday. What have we come t o? That was my fi r st r eact i on. What i s wrong with us? And I would have cancelled the season in a heartbeat. MALE VOICE: Ther e was not al so t he quest i on about university president being dismissed. MR. ORZA: Yes, but that didn’t matter to them. MALE VOICE: Yes. MR. NEWHOUSE: Okay. And on that note I think— MR. ORZA: H e ask ed anot her quest i on for somebody el se. I don’t know anything about extreme fighting. Ri gh t ? Y ou had an extreme fighting question? PROF. GREGORY: Wel l , t he ext r eme fi ght i ng quest i on t hat ’s now i n N ew Yor k . Two year s ago, some of my const i t u- t i onal l aw st udent s sai d t hat i t woul d never happen. Wel l , SYMPOSIUM TRANSCRI PT 11/5/2012 8:22 PM

238 Seton Hall Journal of Sports and Entertainment Law [Vol. 22.2 her e we ar e. But maybe we can pur sue i t during lunch.