OA575: A Swing and a Miss on Lockout Negotiations

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 575. What a number, Andrew. What a number. How are you doing?

0:01:24 Andrew: I'm great Thomas. How are you?

0:01:25 Thomas: Over the moon. Between the last episode being why Trump should go to prison and is likely going to face some charges to episode 575, just such a great number all around. Yeah, couldn't be better. Yeah. Two Fantastics here, lots of news. The ACLU already gotten a TRO against the Abbott nonsense. We're going to talk more about that. We've got some Ukraine news and sports ball law. But yeah, with baseball, I'm really curious to get Andrew's update and predictions on what's going on there. So, I guess before that, our only announcement is, and we were so caught up in Friday's episode, we forgot to do this for that episode, but quick correction, Andrew was wrong, but can feel free to blame Thomas, uh, that that Malaysian uh flight did not go down because of the Boeing uh problem. That was me asking you question on the spot, sorry about about that, but different thing.

0:01:32 Andrew: Yep. All right. Well, And I was led astray because there were product liability claims filed against Boeing in that lawsuit, so, uh, we hold ourselves accountable, uh, and I got that one wrong, so my apologies.

0:02:31 Thomas: Thanks for everybody who let us know. And all right, let's get to today's show.

0:02:31 Andrew: Yeah.

0:02:37 Clip: Down the law, down the law.

0:02:41 Thomas: So yes, what's the news in this TRO about the child services investigations?

0:02:47 Andrew: Is this is very very good news. Let's uh sort of fill in the background. In episode 573 last week we discussed the Greg Abbott letter, uh, which was a one pager to the Texas Department of Family and Protective Services that referenced uh an an attorney general opinion letter written by equally bigoted, I don't want to have to clown horn. It really is Texas Attorney General Ken Paxton. Before we get into kind of recapping that, I had conversations with two of our trans listeners who wanted To point this out to me. And I cannot tell you how much I sincerely appreciate, love the feedback, love learning, I'm a cishet dude. And so, uh. I, miss things like this. So this is from Sylvie, but I spoke to a couple of folks. Sylvie says, "Your recounting of the letter focused on gender reassignment surgery and gave the impression that that was all that the letter was about.

But out, the letter also included hormone therapy, puberty blockers, and other less invasive and more common interventions. The broadness of the letter to include even puberty lockers was a big part of why this felt so terrible. To analogize to abortion, it would be like the letter banned everything from late-term abortions to voluntary birth control and only having late-term abortions mentioned in the segment. GRS in minors is extremely rare on a par with late-term abortions in relative Whereas puberty blockers are by far the most common intervention."

0:03:08 Thomas: It's real crap sandwich when it comes to...

0:03:22 Thomas: Hmm. Right.

0:04:17 Andrew: So not an "Andrew was wrong" note, but I think it was worth noting that when we accidentally buy into the right wing framing of the issue, when they lump in non-existent general mutilation of children with actually common life-saving interventions like puberty lockers, um, and again similar point made to me, uh, by another listener, um, not something I realized I was sort of subconsciously buying into that framing. And thank you so much for, for Letting us know. We will do our best.

0:04:41 Thomas: Definitely. I think that abortion comparison is perfect because so much of that happens where it's like, Like, we just don't want, here's what this bill does. It stops doctors from, once your baby's born, putting it in a guillotine and then asking you whether or not to pull the trigger on that. And it's like, no, actually, this also just bans incredibly, you frequent, necessary care. I think that's a great analogy because it's often that hiding the ball that they do, right?

0:04:44 Andrew: Oh. Yeah. Yep.

0:05:09 Andrew: And puberty blockers are a hundred percent reversible. I mean, just, maybe I'm buying into more of the framework, right? Like, uh, I, I don't want to continue to make that, that mistake, but the, um, comparison, I think, was, was dead on. And the idea that, you know, you're sort of lumping in, uh, day-to-day, you, chemical ingestion, uh, was just really well taken. With so that in mind, um, we went through the letter and we went through the underlying AG opinion, and we basically gave you two takeaways, right? One was good news. Right. Which was that the mandatory reporting component referenced in the letter and mentioned at the end of the AG opinion is complete and utter nonsense. A lot of people were terrified. "Hey, I'm a pro-trans social worker.

0:05:54 Andrew: Does this mean that I'm going to be fired? You know, if I don't if I'm a school counselor. Right. If I don't report that I know that one of my students is taking a puberty blocker, for example. And we told you that's nonsense. Don't be worried about that. You are not bound. We went through that in great detail. The opinion letters are binding on state agencies if they're validly issued. So, you know, I believe what I said was, you know, let's get to work, Well, right? Great news. The ACLU has gotten to work and they have filed a lawsuit that challenges the instructions as being ultra virus, which we've talked about before. That is beyond the scope of the executive to promulgate. They have also challenged the the development of those instructions under the Texas Administrative Procedure Act, right?

0:06:46 Andrew: You might recall, again, wide latitude in the governor instructing executive, state executive branch agencies for what to do. But you still have to engage in fact finding. It still has to be based on a rational relationship between the objective sought and the procedures implemented. And this This 68-page lawsuit by the ACLU is comprehensive in going through, in listing the arguments that order is a violation of the Texas Constitution, a violation of the U.S. Constitution, is unconstitutionally vague, violates separation of powers, exceeds exceeds the powers of the legislature. Substantive and real arguments. And part of how you know that is the court immediately granted a temporary restraining order. It is worth pointing out, that right, temporary restraigning order that is in effect right now applies only to the named plaintiffs that are in the lawsuit.

0:06:59 Thomas: Right.

0:07:49 Andrew: And they are named as Jane and Mary Doe. And prevents the specific investigation into their cases at the end of this week, Friday, March 11th. So again, it's going to be over a week before we have an answer. But that Friday, this coming Friday, the 11th, the court will revisit whether to issue a preliminary injunction restraining the application of the force of the entire letter from Greg Abbott to the Texas Department of Family and Protective Services. So, we're keeping our eye on that. As you know, we record on Thursday, so going to have to check out our social media for sort of instant reactions. You also know that the standards for granting a TRO and a preliminary injunction are the same.

0:08:39 Andrew: The application is obviously a little different. You may have you may shift the balance of equities a little bit. But but the real hurdles to get over, are the irreparable harm prong and the likelihood of success on the merits prong. And so, you know, usually it is a strong indicator when a court has granted a TRO that they're prepared to grant the P.I. But, you know, will we see.

0:09:03 Thomas: So, yeah, we haven't had the kind of the time to go through the arguments and assess the plausibility yet.

0:09:04 Andrew: Yeah, The TRO hearing does did not set out those factors with specificity. Right. It just concluded that, "I conclude for purposes of preserving the status quo, the plaintiffs have carried their burden with respect to the named plaintiffs of the class." So we're going to be looking for a more thorough analysis of how the court weighs those seven separate arguments that have been raised against the letter. And I suspect that that's probably going to have, again, these are preliminary. So, you know, it's hard to, you have to remind yourself that this is not a court making an adjudication on the merits, but a court predicting how it might find on the merits when a full trial happens. But these tend to be pretty fact intensive,

0:09:50 Thomas: Right. I was asking the Andrew Torrez opinion, but that's.

0:09:57 Andrew: Yeah. Yeah, no. Reason I'm holding back is that I believe these arguments are strong, challenging an act of the legislature as being ultra virus as and or as not being authorized under the Administrative Procedure Act. Typically, those are uphill battles. You give a significant amount of deference, um, but you know, Donald Trump lost a ton of lawsuits like this throughout his presidency, right, where you know he just sort of said, "Hey, well, you know, do this," uh, and failed, uh, to conduct the minimal of fact finding, um, failed to, you establish, uh, kind of minimal connections between the directives, uh, and what the agency was doing.

And, and I think there is a really, really strong argument on non-delegation here, right, that says what you're trying to do is change the definition of child abuse from the status quo. And child abuse is defined by the legislature, right? Go to the state legislature if you want to do this, but you can't do it from an executive agency standpoint. And that seems to have particularly kind of common sense force in Texas, right?

Like, you know, you're not talking about, uh, uh, you know, a conservative court needing to protect you against that liberal Texans state legislature. You, so I, I'm cautiously optimistic. My hesitancy in, uh, weighing in

0:10:14 Thomas: Yeah.

0:11:14 Andrew: Is that I, you know, uh, what our, our, uh, trans friends and listeners are going through, I know their, uh, their fear is, uh, is real and and well-founded, and don't to, I don't want to be opening arguments going, it's all going to be great, um, but, but I want to say that, you know, I'm, I'm very proud of the, the work the ACLU is doing here and trying to amplify that. Know, and we will know on Friday, the 11th. I expect and hope that the entire instruction will be enjoined. I mean, this is just a monstrous and terrible thing to do. If not, it means we need to redouble our efforts, be working at the grassroots level, even in states that have historically been states of naked cruelty. So are the developments. Cause for optimism, still obviously a lot going on in the background.

0:12:01 Thomas: I was curious just in the kind of the aspects of this. Is it specifically targeting what, you know, it's Doe v. Abbott, I guess it's targeting what Abbott did. Is it also targeting Paxton's letter or do you do both? You how's that work?

0:12:16 Andrew: A great question procedurally. So Ken Paxton, not named as a defendant, right. And I think the reason that he is not named as a defendant is that the opinion that we described, KP-0401, is authorized under Texas law and Texas civil procedure? He got a question from a representative and then wrote an opinion, right. And so I understand why the ACLU wouldn't want to challenge that, because that's a very, very hard argument to, to make that the opinion letter itself, uh, was ultra virus, right, exceeded the law or otherwise was not authorized. I think it probably was. The question is, what can the larger executive branch do with that opinion? Can they use that opinion effectively to change the definition of child abuse in the state of Texas? And I think they have a good argument that no, that that's up to the legislature to do that.

0:13:13 Thomas: Gotcha. Okay. That makes sense. All right. Well, will, we'll we keep an eye on that as always, but, but good news you think on that front. All right, now some more on Ukraine, Covington and Burlington coat factory. How are they involved? What's going on?

0:13:20 Andrew: Absolutely. Absolutely Oh, Wow. Yes, so much going on. Let's first kind of talk generally about a couple of things. There's always a risk in doing a recorded podcast on late-breaking events, you know know, that are changing every day, like the war in Ukraine. Um, that, being said, I, I have to say I'm, I'm super proud of, uh, what we were able to do in terms of our coverage and in terms of the way in which it feels like the world has responded.

You know, but there, there are a lot of terrible actors out there. I mean, you know, we did, we did a 70 minute episode on, uh, you know, the U.S. as a bad faith actor who has violated international law. But at the end of the day, right, the idea of we can and should hold our own houses accountable, but we shouldn't let that interfere with the, um, ability to kind of come together as a human international community behind a shared bedrock principle of international law, which is, um, when one nation goes to violate the sovereignty of another, uh, that we should stand up in opposition to that. We have seen just a cascading effect of, you real acts of courage, uh,

0:14:40 Thomas: Yeah.

0:14:40 Andrew: By, by Ukraine, by President Zelensky,

0:14:43 Thomas: What a story that is. I mean, we don't have time to get into it, but holy moly. I mean there's, there are so many layers to that guy.

0:14:49 Andrew: Absolutely. The beer plants that were converted over to making Molotov cocktails, details. Um, the Ukrainian finance minister, this is my favorite bit, who, uh, published, uh, an official letter that said, "Some of you are wondering if you're going to have to declare on your taxes, uh, materials seized from, uh, you know, Russian, uh, soldiers," and and the invading Russian army, and the answer, that is no. "So keep going, keep defending the motherland," and, and I, I love that, that.

0:15:21 Thomas: I want to meet the person for whom that was like the marginal concern. They're like, I was going to, but I just did my taxes, the tax situation, the implications.

0:15:32 Thomas: And then they could get this. They're like, all right, charge, let's go.

0:15:35 Andrew: And then you know, Germany really taking it on the chin in terms of their economy. And this is going to be bad for the world's economy to to impose harsher sanctions on Russia. The question is, is is it going to to be worse on Russia than it is on the rest of us sharing that burden. Just learned as we're recording this, that all of the EU is going to suspend access to the SWIFT network. I don't know if you saw, this was posted, I think in a Reddit Ukraine thread, but it was an opinion from Professor Maxim Mironov about the Russian economy. And the top line was, my scientific conclusion is that the Russian economy is effed, double effed because most Russians don't know what's coming.

0:15:45 Thomas: Oh yeah. Yeah. Gosh.

0:16:22 Andrew: Go through, but it basically is, you know, Russia is very heavily integrated into the world economy. Major operators are refusing to send containers to Russia. Many think that Russia over the last few years has built up a huge number of factories. The only thing is those factories, cars, aerospace, household goods, et cetera, rely on imported components, so therefore, in the coming months, what awaits us is halting of entire production chains with all of their feeder independent businesses. We're talking about product shortages, unemployment, the resultant government revenue shortfall with its implied struggle to pay civil service and government employee salaries, obviously the decline of the the ruble to under a penny. Feels like we're at a point, again, you know, way too early to declare, now, obviously you not a victory, but know even a even, you know, you winning a battle here.

0:17:10 Andrew: But it feels like that this was a major miscalculation, uh, by Vladimir Putin, and and that that stems from you coming together and understanding this as, uh, as a war crime. So, with that in mind, I love the fact that, hot on the heels of us declaring this a war crime, uh, Ukraine went to the International Court of Justice, uh, and filed a complaint. Um, I'm going to include that application, uh, in the show notes. Um, remember, uh, that, again, again, both Ukraine and Russia submit to the jurisdiction of the International Court of Justice. We've talked about how the United States has managed to flaunt those restrictions. We've talked about how you can use the United States used its its position on the U.N.

0:17:56 Andrew: Security Council to veto resolutions that were meant to enforce the sanctions awarded against it, in in the Nicaragua case. So, you know, I'm not, I am not saying that think I that the ICJ, you if they awarded sanctions that, Vladimir Putin is going to pay them. But I am saying that, we you are watching the the vindication of basic principles of international law play out, and Ukraine hired Covington and Burlington Coat Factory. I love that the some of the smartest lawyers in hardest working lawyers, uh, to litigate this matter. Um, that tells you they're taking it seriously and

0:18:34 Thomas: I didn't know that they did that. I didn't know that Covington and Burling did international earth court, whatever, law.

0:18:36 Andrew: Yeah. They do indeed, and so, uh, this complaint, um, is specifically focused on, specifically on, the narrow issue of the pretext duality of Putin's decision to invade, which was justified as preventing genocide allegedly suffered by Donbass communities at the hands of the state of Ukraine in order to then, quote, take a long overdue decision and to immediately recognize the independence and sovereignty of the Donetsk People's Republic and and Luhansk People's Republic.

0:18:56 Thomas: Oh, yeah.

0:19:13 Thomas: And plus, you got to denazify the area by bombing Holocaust memorial museums in the area. It's always a good way to do that, I think. Yeah, good tactic.

0:19:18 Andrew: Yeah. Yeah. And, you know, Ukraine says these are false claims. This was used as a pretextual justification to engage in a military invasion of our country involving grave and widespread violations of human rights. Ukraine emphatically denies that any such genocide has occurred and brings this application to establish that Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide.

So in other words, the question that they've raised is not sort of the more general, you know, hey, validate our sovereignty, but rather, okay, we concede that claims of sovereignty can be abrogated if you are protecting an ethnic minority against genocide, and unless the ICJ adjudicates this, this will undercut that principle as well, right? Like, we will lose respect for the idea in international law that, uh, that, yeah, we should, right? Like, you, sovereignty, you know, we did an entire episode on how sovereignty is important.

That's true, uh, but extend you it out to its logical extremes, right? Like, if uh, know, Nazi Germany had not aggressed Poland, uh, but just, you engaged in the systematic extermination of its domestic Jews, like the, I don't think the UN would take the position of like, oh, well, you know, nothing, nothing we could do or see here, right?

0:19:27 Thomas: Mm-hmm.

0:20:44 Andrew: Like you well

0:20:44 Thomas: I mean, the Uyghurs are a counterexample, I guess, but...

0:20:47 Andrew: The Uyghurs are a counter example in terms of where we have acted, but I, I think the argument is if we were, and if it were practical to mobilize the international community to do something about the Uyghurs, that the U.N. would have jurisdiction over that and that it would vindicate the the anti-genocide principle. So the idea behind this is that you are watering down the principle against genocide. And I think that that's just such an interesting basis for bringing a very narrowly tailored lawsuit so that you're not left with, you hard questions, right? Right. Like the hard questions you threw at me in our sovereignty episode, to which you have to say, right, that they're just there are no easy answers. But there is an easy answer to

0:21:02 Thomas: Mm-mm.

0:21:33 Thomas: Is there a genocide happening in Ukraine right now?

0:21:36 Andrew: Right. And that's what Ukraine has asked them to adjudicate. So let's take a quick look at some of the factual paragraphs. This is beginning on paragraph 13.

0:21:37 Thomas: No. Yeah. This

0:22:12 Andrew: Luhansk Oblast. In March and April 2014, these illegal armed groups occupied public and administration's buildings. And on May 11th, 2014, the DPR and LPR announced their political goal as autonomy and held a purported referendum that has been roundly condemned. And there's a footnote, that's footnote 11, the citation there is, to the UN Office of the United Nations High Commissioner for Human Rights, um, that's probably likely to be a viewed as a pretty persuasive report by the ICJ, um, so, you know, the UN said, "Yeah, this is, this is a sham referendum, they do, they do not speak for the Donetsk and Luhansk Oblast." This is, uh, you, is, this is non-indigenous.

0:22:52 Thomas: It's an alternate slate of electors, you know, assembled in a Denny's, written on a napkin.

0:22:53 Andrew: Yeah perfect yeah and and armed and armed by the Russians, yes. Yes. In early September of 2014, the DPR and LPR articulated a list of political demands, including recognition of the special status of their territories and granted autonomy, grant them the right to make Russia their official language and grant each region the ability to engage in its own economic relations with Russia. Again, you see kind of a pattern here of, you know, it just so happens that this would be incredibly in the, you knows, Russia's financial interest. Um, in Febuary of 2015, on the eve of further negotiations and amidst a wave of attacks on Ukrainian civilians by the illegal armed groups, leaders of both the DPR and LPR again released a detailed list of political demands, including constitutional reforms in Ukraine, extensive decentralization, grant individual areas of the Donbass and autonomous status. And in service of these aims, the DPR and the LPR engaged in what the UN Office of the United Nations High Commissioner for Human Rights described as a reign of intimidation and terror.

0:23:55 Andrew: So, all right, dating back almost a decade, you have terrorists armed by Russia that have engaged in massive human rights violations under the guise of asking for greater autonomy. Um, they point out in 2019 that not only was, uh, the deal, uh, reached, uh, in Minsk, uh, recognized internationally, uh, know, that these are terrorist groups, that these are not, uh, autonomous ethnic groups within, you, States within Ukraine. But that was reaffirmed in December of 2019. Leaders from Russia, Ukraine, France, and Germany met to reaffirm their commitment to the deal. After a spike in violence, the joint forces operation sought to strengthen a new ceasefire in 2020. Full ceasefire was restored in December of 2021.

0:24:43 Andrew: And then it says, after a well-documented military buildup around Ukraine's borders on February 21st, the president of Russia issued a statement announcing that he considered it necessary to take a long overdue decision and immediately recognize the independence and sovereignty of the Donetsk People's Republic and Luhansk People's Republic. President Putin grounded Russia's actions on unsupported actions of horror and genocide, allegedly sponsored, tolerated or somehow initiated by Ukraine, and then quotes from that rambling, insane speech by Vladimir Putin. Um, in response to all of this, uh, Russia's existing counsel to the ICJ, um, a lawyer named Baihu Vasana, B-A-I-J-U-V-A-S-A, and, a, I'm sorry if I'm mispronouncing that, uh, resigned, resigned from his partnership at the Russian firm of Ivanyan and Partners.

Um, he has been the one representing Russia before the ICJ in cases relating to Crimea. Okay, so again, I think it's pretty clear that Russia's on the, the, on wrong side of the law with respect to their invasion and occupation of Crimea. This is the lawyer defending Russia in those cases who said, "Yeah, yeah, but invading you, Kiev is a bridge too far, this is uh too much to ask," and so he resigned from, from the firm entirely, from all of those cases. Um, again, I think just another illustration of, of, uh, what you can do when you bring together the international community. Want to stay cautiously optimistic. You want to, you retain that week a of things going better

0:25:26 Thomas: Oh, OK. Yeah, oh,

0:26:13 Andrew: Than the worst case apocalypse scenario, you does not mean we dust our hands and say mission accomplished. I'm proud that.

0:26:20 Thomas: Yeah. I mean, this is gone way better than I would have thought. I mean, I still think, this is not really the place of our show to be predicting world events, not really where we are, but still think ultimately, you Russia can can, win this if it wants to, but at what cost is going to be the question.

0:26:37 Thomas: And it's, it's been really encouraging. Seems to be The Consensus that the international response is just far more robust than I think anybody was predicting.

0:26:30 Andrew: Yeah. Yeah, I think that's right.

0:26:47 Andrew: Yeah, I think that that's right. And look, one of the things that I think is a role in that. Think That Putin expected right that the, you know, sort of tepid condemnation that came with the invasion of Crimea would would be replicated. Right. And we have learned, you know, again, thanks to Donald Trump. Right. We learned that Republican operative Paul Manafort and Democratic operative and Bernie Sanders campaign manager Tad Devine collaborated, went to Ukraine in in 2012 and helped elect a pro-Russian stooge that paved the way for the Russian invasion and occupation of Crimea. And so you didn't have right. So you had all of these things that were sort of potentially clouding, you what could have otherwise been, Know, standing up to, to aggression and invasion in 2014. And I think Putin thought he was going to get away with that again, right? I think he thought he He was going to get more unambiguous support from the U.S. Republican Party. Right. he'S had some.

He'S had our former president call him brilliant. But but that hasn't resulted in sort of a hopelessly fractured U. S. and a sense of like, well, it's all just kind of confusing. So who the hell cares? Like that's Right. What benefits Russia. And I love the fact that that hasn'T materialized. And, you we've talked about the role of this show,

0:27:01 Thomas: Yeah. Ugh. God,

0:28:09 Andrew: But, no illusion that we directly affected anything, I am proud to sort of be on the side of standing for sovereignty.

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0:30:07 Thomas: Baseball law, Andrew. It's not a very encouraging time for baseball law. I got a notification from the MLB network thingy or whatever it is that, they're not going to charge me on account of the season doesn't exist.

0:30:13 Andrew: Yeah. So here's what happened? Major League Baseball set as a deadline for itself 5 p.m. on Tuesday, March the 1st. So a week ago, if you're listening to this right as it comes out, to deliver its best and final proposal to the players before there would be a need to cancel some of the regular season. And that proposal was rejected by the players. We're going to talk about that. And the players have characterized the entire lead up to this as them in a false light. In other words, way in which Major League Baseball tried to spin this was, "Well, we're making good progress. We're not that far apart." So we're going to give them our best and final offer on March 1.

0:31:06 Andrew: We're already going to have kind of a shortened spring training. This is really the last practical time where we don't have to cancel regular season games. And, you know, if they just play ball, we'll all be fine. And then immediately after

0:31:19 Thomas: Play ball I see what you did there yeah

0:31:23 Andrew: The MLBPA rejected it, Rob Manfred put out a statement and said, well, I don't understand why they changed their tone all of a sudden. And, you know, they backed away and players have come out and said, and again, you know, weigh however you want. We're pro player here on this podcast. Players have come up and said to you, this is this is just nonsense. There was no we weren't that close to start with. And The best and final proposal does not breach the major, does not close the gap on major economic issues, which we're to talk about. Um, and so, uh, you know, this looks like the same kind of stunt, uh, that you saw when Rob Manfred wrote the first letter saying we just have no choice but to lock these players out right now and when in fact they had every opportunity to uh to to not do that. Um, I, I want to, I want to talk a little bit about uh the dynamics of of leverage right here.

Um, this time period is is a time period in which the team owners right have the most leverage, and the reason that they have the most leverage is that one of the aspects of their proposal that they've since kind of backed away from was to have expanded playoffs, right, to have more playoff games and have fewer regular season games, right. So getting rid of a bunch of games in April, which is what what has has now happened, right.

MLB has announced that the first two series of the regular season, that's six to seven games, it's a week and a half, right, uh, that those have been canceled. Um, that is, you might be tempted to think, well, they're

0:31:47 Thomas: Yeah no choice yeah

0:32:54 Andrew: Giving up on their gate for that. Um, is not where teams make their the majority of their revenue, uh, and the teams have wanted shorter regular season, longer playoffs for a decade now. So that's a really really good piece of leverage that, if it feels like players are being blamed for games not starting and then games don't get played, teams can say, "Gosh, we we sure wanted to play those games." It has a surface level plausibility because you you would think, you know, yeah, that's they they make money when and, you know, when people attend them. But in reality, that's the what teams want to begin with. So other dynamic, the reason that the lockout needs to continue is an aspect of collective bargaining.

0:33:41 Andrew: And best way to think about this is you ever hold over and stay month to month on an apartment that you've been renting? That happens, right, and and it actually isn't sometimes, right. Particularly commercial leases will have a provision that says if you roll over and it's month to month we're going to charge you 125% of, uh, you know, what your monthly, uh, what you know, what your existing rent is.

But oftentimes, particularly if it's an informal arrangement, you know, you're you're paying, uh, you know, thousand bucks a month for your apartment and, um, and the lease runs out and you're like, "Like, can I just stay another month?" And you pay the thousand bucks and you stay the extra month. And even though you never signed a lease agreement, you know, there's no, nobody goes to court over anything because the terms just sort of continue in place despite the expiration of the agreement.

And to whatever extent that's not the world's greatest analogy, that's an option that's available. So if the players were not locked out and the players took the field, they could play the 2022 season under the existing collective bargaining agreement rules, right, and here's what would happen is that would immediately shift 100% of the leverage to the players, right, because they would be playing under the old rules, they would get paid under their contracts, and then at any point in time they have the right to strike. And if they strike in July or August, well, now, now that's the exact opposite of shifting of leverage, now all of a sudden you have the potential that playoff

0:33:46 Thomas: Yeah yeah

0:35:11 Andrew: Games don't get played, and teams do not want to miss out on that. And so preemptively, to prevent the players from getting to the point where their leverage would be highest, they have to be locked out now. And you have to reach some kind of agreement in order for the owners to lift the lockout and for the season to begin. Parenthetical, if you follow us on social media, I got into a discussion with some sports writers and affiliated folks who asked the question, is there anything in the collective bargaining agreement that prevents players from, you know, barnstorming or playing in the independent leagues or playing overseas. And the answer to that is nothing in the collective bargaining agreement, nothing in that process, um, everything in practicality

0:35:11 Thomas: Because like after this is all over will they be banned for

0:35:59 Andrew: Nope nope not, nope, they would not be, it was not like they would be the Kevin Millar replacement players, right, it's not that they're crossing the picket line it is can they pursue their employment outside of the league, they can. But, um, here's the practicality of the situation, situation. MLBPA has reserves by which it will pay players. This is part of why unions collect dues. So the players are going to get some money on their contracts from the union, even if the season doesn't begin. And particularly if you are a pitcher, you can come up with a handful of examples of folks, I'll give you one in a minute. But particularly if your pitcher, you have a non-zero chance of someday being a nine-figure asset, right, kidding, getting a deal worth a hundred, two hundred million dollars, and the idea that

0:36:00 Thomas: That or something oh okay yeah that's what I was thinking of Jesus

0:36:55 Andrew: You would go to, well, you know, look at look at the deals that were signed this past off seasons, right, the idea that you would you know go to the Sugarland Skeeters and be like, "Yeah, sure, what the hell, I'll play for you, know, 10, 10 grand and maybe blow out my rotator cuff, just not remotely practical.

0:36:58 Thomas: Yeah it's crazy yeah please tell me the Sugarland Skeeters is a real team that's awesome

0:37:18 Andrew: Absolutely, 100% a real Team. So I have had friends who have played independent ball. I love indie ball, like the Go Southern Maryland Blue Crabs, uh, their facilities are, um, sub high school level facilities, right? They do not have uh the equipment and the training to to keep up, uh, and maintain major league ball players. It is, I guess, remotely conceivable that, uh, if if things became totally intractable, you could have a handful play overseas, right? There are some uh overseas leagues, uh, Japan and Korea come to mind, uh, that have modern nutrition and facilities, and where you you might not be a total risk of uh of injury, but I cannot see the great majority of players being willing to to injure themselves and their future careers, you know, to help the Skeeters win.

That's right. Now, a couple of people, like, and a couple people that I love watching as players, like Dan Vogelbach, right, first baseman who's bounced around a couple different teams, kind of looks like he's got a little bit of a gut. He's a first basemen. He hits monster home runs. All right. Right. Like, you know, maybe he doesn't need quite as much, you know, fine tuned, you medical care as a Steven Strasberg or what have you. But you can't make a barnstorming team out of, you know, DHs and first basemen. You got to you got to field a team somewhere. They got to play against somebody and that's not going to happen. Okay. OK, so about that little sidebar there, but I thought it

0:37:20 Thomas: Yeah to help the Skeeters win yeah

0:39:01 Andrew: Was worth pointing out that there really isn't there isn't a legal bar, but there's a massive practical bar because of the monopsony. There is one market with 30 buyers for their services and everybody else is buying at, you a severe discount. Count, um, so left are where the disputes right now, um, and I want to tell you this is another aspect, it's that, why I wantto cover it, because I think it's really, really important to know, uh, as consumers, right, the players and the teams and the owners are not far apart on on structural changes that you would see on the field. So, for example, both sides agree, uh, to go with a universal designated hitter, to have it in both the American League and the National League. Oh, you're

0:39:07 Thomas: I don't

0:39:47 Andrew: An old

0:39:48 Thomas: Really like that one I'm sad about that some reason I'm the only one. I don't know why everybody else seems to like it WELL doesn't it. I mean, somebody like Otani, you know, it's so cool that like he can be a hitter while pitching and that that's an awesome advantage. And if you, if everybody gets to just have a DH all the time, then it kind of takes away from what his truly historic ability is.

0:39:48 Andrew: Uh I, get that. You I I love it. But But yeah, I think the flip side of that is you can identify, you Otani is one, right? Babe Ruth is number two, right. And the third two way player would be, you, it would be awful. I like Brooks Kishnick, maybe the Rays had a prospect, but he blew out his arm and had Tommy John surgery. So, you would say is it, is it worth, uh, one, uh, Otani, uh, versus, um, every day having 700 guys who hit 150 come up and like feebly flail away all

0:40:21 Thomas: Yeah.

0:40:45 Thomas: Love it. I love what I love watching it. It's like the old joke where they're like, you should have a normal person do each Olympic event beforehand so that we can see the comparison. It is that every time it is like, oh yeah, that is what a normal guy looks like trying to hit the ball. I, I love it personally. I am the only one. I don't understand it.

0:40:55 Andrew: Right. You know. You know, that, but that's, that's a great argument. Fair,

0:41:04 Thomas: But also I love when there's like a key situation and you need that pitcher. For one, you got to make the decision of, crap, this pitcher, you know, like, ah, they're doing a great job. Do we take them out to get the hitter? You know, when we got runners in scoring position, making that calculation is interesting to me. Uh, having the pitcher try to do a sack fly, or, set, well, probably not a sack fly, but a sack bunt, you know, and, like, I find all that interesting, and less interesting is, nah, pitcher just doesn't have to hit.

0:41:31 Andrew: Point, I would argue, uh, that number one, you still have the strategic elements, because if you, uh, if your DH has to take the field, or if you, you otherwise moved him, then you lose the DH spot, um, Joe Madden under the like did that more aggressively than any other team, in which they were like, oh no, like, we're, we're willing to run the risk that this game goes 13 innings and one of our relievers has to hit in order to gain this massive advantage right now. So, I don't know that that cuts down on the strategy element. I think it shifts it in a different way. In any event, Universal DH, agreed to by both sides. Both sides have agreed to limit minor league options. That is the amount of time that player A can be sent. It is considered an option year when you promote a player from the minor leagues to the major leagues, uh, in the course of that year, and it burns an option to bring him up and send him down, but within that year you can do it right now an infinite number of times, right.

There are rules about how long you have to spend in the minors, but those get suspended if somebody gets hurt in in the process, um, and so again, uh, they're teams like the Rays who I think they had a player that they optioned 17 times over the course of the regular season, uh, and that's one of those rare areas where, like, obviously you see why the

0:41:32 Thomas: Yeah, any rate

0:42:54 Andrew: Players hate it, right, like that poor dude who had to, uh, you travel between, uh, Durham, North Carolina, and, uh, and Tampa Bay, Florida, like 17 times, right. And it was like, hey, you're coming to the show. All right, you go back down. Hey, you're coming to the show! So you get why the players don't want that. The majority of clubs also sort of view that as like, all right, this is the Raised gamesmanship again, so let's get rid of that nonsense, which is part of the reason why the, the owners right now want to ban the shift, which, you know, what a... I don't even know how that would begin to work practically.

0:43:03 Thomas: Yeah,

0:43:31 Andrew: Uh, it's it's so it's so stupid, um, but yeah, so, uh, both sides agree on that, both sides agree on, uh, expanding the playoffs, and I it feels like there's an agreement, right, currently 10 teams make the playoffs, uh, out of 30, and there's... there's an agreement, I think, to expand that to 12.

0:43:31 Thomas: That doesn't yeah, that's Good, the current system sucks, I really hate it. The one game playing, the nonsense, you play 180, 000 games during the regular season, it lasts forever. And then the playoffs, like, two teams make it and they play, over instantly.

0:43:53 Andrew: And, I I don't disagree that one game play-in is nonsense, right? So, yeah.

0:44:11 Andrew: I don't disagree that the current game playoff between the wild cards sucks. So the idea is you expand it to 12, the question really is how do you find the right balance, right, because if, if you expand the playoffs to half the field, right, to 14, you know, almost half, then you start looking at a situation where an awful lot of teams that win 80, 81, 82, 83 games, right, they play 500 ball, start making the the playoffs, and particularly in shorter, in shorter three game series, the question is, does this disincentivize a decent team from trying to improve in the offseason? In right? Other words, if you look at your team and go, yeah, we're probably going to win 83 games, you know, we'll probably going win about as many games as we lose under the current system, you are incentivized to go chase after free agents, right, and to increase the number of teams bidding on their services, driving up player salaries. If both teams are going to make the playoffs anyway, then, you there's kind of a let's kick back

0:45:11 Thomas: But won't that just shift that down a little bit in the standings? So some other teams will become the marginal teams and they'll be incentivized to do that same thing.

0:45:13 Andrew: Um, it, so The the question is, um, how that works around the expected distribution of wins. And so some economists have actually modeled this and show that because if if what you're trying to do is get to that, "Oh, we're a winning ball club," that it's actually fewer clubs are in the like their fans probably expect them to win 78 games. But, you know, if they just signed one more free agent, they would get to 81 or 82, that there are fewer teams that are in that are on that part of the curve than there are teams that have sort of the reasonable expectation of being about 500 and would want to move up into the into the competitive category.

0:46:01 Thomas: Would they not also be incentivised to move up a little bit in order to maybe win a playoff series?

0:46:08 Andrew: So think about that in terms of the difference between winning an individual game and winning a series. Right. So, for example, if a team has three very good starters and no one behind them, adding a fourth starter will help you win considerably more regular season games, probably won't affect you in the playoffs at all, particularly in a three-game series. So, so yes and no, it's, right, a complicated system. I can just tell you that the players have sort of settled in on, we think expanding the playoffs probably is a slightly negative downward pressure on salaries overall, um, and, uh, and that's that's the position that they've, uh, staked out, but they, but again, they're willing to concede, uh to 12 team expanded playoffs. There is also rough agreement on, uh, how to restructure the, what are widely perceived of as incentives to tank and incentives to mess around with players' service times, right. So, um, the anti-tanking, for example, would be adjusted by having a lottery, right. That lottery would no longer guarantee that the team with the worst record picks first, instead

0:46:48 Thomas: Yeah. There you go.

0:47:19 Andrew: Yeah, there would be some combination, nation and, look, they're not far off on this, right. So, uh, MLB's proposal is that, the top five picks go to lottery, uh, equal odds for the bottom three record, uh, and that you, uh, cannot be, if you, if you receive revenue sharing, you can't be in the lottery three consecutive years, right. So, you know, teams that get money, uh, from the competitive balance tax, the, not the a salary cap, that has effectively been a salary cap that I'm putting towards the end, because if you think that that's likely the largest economic difference, congratulations, you've read ahead to the end of my notes. So in that situation, right, proposals are very, very similar, right?

0:48:08 Andrew: Lottery, three worst teams would all have a 15 percent chance as opposed to having a 16 and a half percent. So, you know, more teams are in all the way up, you know, down through the, this, that gap is crossable. Yeah, exactly Right. The proposals about service time manipulation are, have to do with what counts as a full year. We've gone through this, but players reach arbitration and free agency on the basis of years in the majors. And so as a result, in recent years, level prospects have been kept down for months. Months, happened right, uh, last year with uh Wander Franco, like, Wander Franco was hitting 400 at AAA, right, like, it was just, it was beyond obvious that he was ready for the majors, uh, and the Rays waited,

0:48:19 Thomas: Negligible. Yeah, yeah.

0:48:55 Thomas: Yeah, yeah,

0:48:56 Andrew: Uh, not just, they waited until after a point called the super two deadline. And the idea is the top, uh, percentage of players with only two years plus of service time, uh, get treated as basically having had three years of service time, and they hit arbitration a year earlier. And so, you know, that, that was designed for guys that would come up, uh, and play, you know, two and three quarters, right, and it was like, okay, well, they should be, if you play two and two quarters years, years, uh, you should probably get counted as three years. And the, and so thus super two was born. And, like any kind of economic incentive, teams would then say, okay, well, what's the, what's the last possible day in which you could qualify for super two? We'll bring you up the day after that. And look, this is an area that, that needs to be fixed, um, and the, the proposals here, well, let me know what you think about this.

0:49:51 Andrew: Major League Baseball's proposal is that a team would get bonus draft picks if a player in their first three seasons wins particular awards, right? Finishes in the top three for Cy Young, for Rookie of the Year, or for MVP voting. And any player, player finishing first or second would receive a full year of service time. So, right, the idea is, uh, incentives both ways.

If you have a potential Rookie of the Year candidate, a Wander Franco, right, you would say, all right, we're gonna, we're going to bring him up right away because not only, uh, is it going to be better for the Major League ball club, uh, but uh, if he wins Rookie of Year, and the more games you play, the more likely you are to win Rookie oftheyear right, um, then uh, we'll get, get an extra draft pick for, so it seems like a reasonably clever way to incentivize that, uh, the players association wants to tie it more to, uh, measurable numbers, right.

So there's a, there's a statistic called wins above replacement, it's very good at measuring how good a ball player is, and their proposal would be that players in their rookie season, um, uh, if they are an infielder or a catcher or a DH, if they finish among the top five at their position, uh, in wins above replacement, uh, or if you are an outfielder, relief pitcher, starting pitcher, if you finish among the top 15 of your positions, uh, then you would receive a, uh, a full year of service time.

Um, again, although these are different, that this strikes me as, as an easily breachable gap, gap. One more thing, easily breach, uh, bridgeable, I keep saying breachable but I mean easily bridgeable gap, um, has to do with, uh, minimum salaries. Um, the, the difference here,

0:50:43 Thomas: Yeah.

0:51:33 Andrew: There's a little bit of difference on the ladders, but the difference is $700,000 for the owners, $725,000 for the players. Um, you know, yeah, you fix that tomorrow.

0:51:43 Thomas: Not much.

0:51:43 Andrew: Yep. Now, what does that leave? That leaves the elephant in the room, uh, which is, uh, the competitive balance tax. And, and here is where we say, although Major League Baseball does not have a salary cap, uh, when it instituted the competitive balance tax, not the immediately passed collective bargaining agreement, but the one before that, players said, look, this is going to function effectively like a salary cap. Teams will draw a line in the sand and refuse to bid with free agents if they're going to exceed the CBT threshold. Threshold. And particularly as information sharing has become more acute, that has happened. And you have seen teams like Yankees, the Red Sox, the Dodgers sort of say, oh, we're not going a dollar above that because we would trigger the luxury tax threshold for the second year in a a row, and we're not paying those penalties.

0:51:44 Thomas: Yeah,

0:52:40 Andrew: And I think this is less because it is an economically optimal decision and more because allowed, sort of, publicly to say, well, you know, here's, we can't go over this amount, that it's served sort of as a de facto salary cap that then brings down negotiations. And remember, when you are negotiating for top free agents, right, that potential market is how teams, is how players get paid, right.

Scott Boris will call up a team and say, hey, we've got a thousand other teams who are in on, you know, X player, and you're gonna have to do a lot better than you're doing if you want to be competitive. And you know, you need to pierce through, how much of that is puffery. Well, one of the ways that teams have been able to pierce through that is they, get that list of teams that are supposedly interested in a player, can look at it and say, oh, if that would put them over the luxury tax, no, they're not really, this is fake. They're not, we're not really bidding against those teams. Um, and so it will not surprise you, uh, that it is that cap, uh, and the escalation of which thresholds hit that cap, uh, that where the players and the team are, are apart. So that gap is $18 million dollars for this season, 220 versus 238, which is where the player's wanted. Major League Baseball wants that to stay essentially flat, so their proposal was five years, 220, 220, 220, 224 in

0:53:33 Thomas: I was

0:54:09 Andrew: In 2025, and going all the way up to 230 million in 2026. Um, if you supply historical growth and inflation of player sellers, this could potentially hit, you know, a majority of teams by 2026, right. So it is essentially aggressively, aggressively promoting the cap. What, what players propose is 238, right, so, so essentially twice again the highest that MLB is willing to go out five years. Today, growing to 244, 250, 256, and then 263 million in 2026. So not only keeping pace with inflation but starting at a, a higher level, essentially punting down the road for five years, um, making changes to, uh, the competitive balance tax.

So let's explain that really, really quickly. And that is, the player's position is a concession. What the players want is to get rid of the competitive balance text, right. It is acting as a de facto salary, it is a downward pressure on the salaries that players would earn in an unrestricted free market. They have agreed essentially to kind of keep the system the way it is, but build in some additional headroom at the top. But, but again, we're not talking about, uh, eviscerating it, right.

You're talking about growing by $6 million a year over the next five years. And the teams have said, no, this has got to stay flat. And staying flat, right, is like keeping the minimum wage flat, right, like, you know, $220 million today is not going to buy you what $2 20 million buys you three years from now.

0:55:54 Andrew: And that's not just the rate of inflation. That's also how players' contracts are structured, right? When you look at it, teams backload those contracts because net present value of dollars today is superior to the net present volume of dollars tomorrow. So the more you can defer into the future, the better you are, that creates that sort of inflationary spiral. So at the end of the day, I know I went through a lot of this. I know, I'm hoping our listeners are still with me on Baseball Geekery. At the end the day, that's the only dispute that remains. Everything else, the way the game is played, yeah, we're there, right?

It is the question of how, uh, and and to what extent, uh, will billionaire team owners be allowed to maintain downward pressure on free agent player salaries, um, and the players have said, all right, we're we're not going to rock the boat, uh, we're not going make you get rid of that, we're going to save that for another day, um, but the, uh, the owner's final and best proposal is, nope, this is going to stay flat, and this is going to continue to make life worse for you as a player over the next CBA. Utterly unsurprising that the players didn't take this agreement. But again, remember, this isthe low point of their leverage. So, you know, we will

0:56:28 Thomas: That's interesting.

0:57:09 Thomas: Yeah,

0:57:09 Andrew: See. I got to tell you, you know, if it would almost be easier if there were major fundamental differences, right? Because

0:57:18 Thomas: Right. Yeah, that's interesting, I mean, it was kind of what I was going to ask you, it doesn't feel like there's all that much change here going on, you know? I mean am I wrong? Is there like a ton of change being proposed?

0:57:19 Andrew: No no I, I don't think there is, and that is because fundamentally, right, the things that are the biggest visible areas, uh, of dissatisfaction and disagreement are things upon which you can reach reasonable agreement, right? Like, players don't want their service time manipulated, teams, uh, you know, I think would like to be able to have, uh, you knows, something, thing, where they don't have to, uh, uh, adjust, you know, their calendars for when you can, you know, oh yeah, no, we can't call Wander Franco up yet because it's not June, um, now they're, you willing to do that if it's massively in their financial interest, uh, but, uh, you know, you can, you can reach an accommodation on that, uh, but but the massive downward pressure that the CBT has had on player salaries, uh, continues to be the stumbling point, and, uh, you know, we'll, we'll see, but I don't see any signs that there's real movement, uh, among the owners right now so

0:58:21 Thomas: Wow. I was going to ask you for a prediction. I mean, this whole thing sucks. I'm glad that I don't like baseball that much. No, really. I genuinely I feel bad for baseball fans. I means, if this was my sport of hockey, like I would be devastated. It's really, really tough. So what's your prediction? Do you I mean so games have been canceled. How far do you think that's going to go? So, all

0:58:29 Andrew: Yeah I think there's going to be at least one more round of, uh, seeing if, uh, the players blink, that they're going to cancel, uh, at least one more set of series, don't see, I don't see a resolution in the next couple of weeks, is, I guess, what I'm saying, there, there

0:58:56 Thomas: Right, well, we'll keep an eye on it. Thanks for the baseball law breakdown, because we'll keep our eye on the ball. I could have done, ah, could have done a, ah. Missed it.

0:59:02 Andrew: Go oh

0:59:05 Clip: And thank you, Let's go!

0:59:07 Thomas: And now it's time to thank our Hall of Famers, our all-time greats at patreon.com/law, enjoying all the goodies, the ad-free episodes, the early episode, the, uh, the Law'd Awful Movies. Oh my gosh, we're not going to spill the beans just yet, because it's not recorded, but next Law'd Awful Movies, we have something special planned. And I really mean that, and I hope it works out, and you should definitely get on that pledge at patreon.com/law to get all the good stuff, the extra notes, so many benefits, we are back to the quintile system after we got done with that month that always pisses me off for ending so early, that don't that month just quits now we're on a real month so we've got a quintile yeah come on, so here we go, quintile here. Here's the first quintile. I'll start us off. Thank you to Jay Mack no plugs or funny names…sorry. If that's a confession, my ass is a banjo! That's a weird one. (You Gotta) Fight For Your Right (To Ex Parte).

0:59:23 Andrew: Yes we do oh yeah I don't need a quitter month yeah

1:00:05 Thomas: Karis Ford, The CDC says Take Legal Advice from a Podcast. I'm fast at sex!

1:00:11 Thomas: Michael Gross Niklaus, happy birthday to my lovely wife. Oh, happy birth. Hey, lovely, lovely wife that's great use of your shout out purplecouch.com that's with no e, by the way, purplec couch.com. Are you supporting a friend through a divorce or get going through a divorce? Listen to assembled experts at purplecouche.com. Loaf of orange, Indiana, and Marion the corgis, Tolkien Geek, Mark Tanner, Trans Trans Vin Diesel says protect black trans women, especially in Al Pacino movies. OA live show, Mardi Gras 2022 in New Orleans.

1:00:17 Andrew: Yeah absolutely no

1:00:46 Thomas: I wouldn't go to the cinema with cinema to see the movie adaptation of Vortexes, but she would fit as a corruptible bad guy. I forgot to change my Patreon name after it got read the first time and I'm still deciding a new one. Gosh, another month. Yeah, you got another month, a street car named Deez Nuts.

1:01:04 Thomas: Fireball is a very famous MTG card. However, the answer was Blaze. Ah, you tricked me. Very similar cards. So there you go. Your turn, Andrew.

1:01:02 Andrew: And thank you to LT, to Salty Seattle Driver on YouTube, in a world full of bad drivers that can only be one, Eli Bosnick, that's so true, inspired zombie, been working through the archives for two years, making great progress on OA 494, clean up on aisle 45, 20, well, nice work, the seething sea ceaseth and thus the seething sea sufficeth us, in very loving memory of my uncle John, I love you, John, rest in peace, yeah, Matt Dunlap, drinking ginger, ginger tea in Siberia, wood duck, would duck a wooden duck, but would wood duck duck a duck duck ducked by duck duck goose, at Atomic Seven, at Atomic Penguin Seven on Twitter, yeah, I read, I read the whole wood duck fine and then goofed up on Atomic Penguin, nice, Joseph Vigiano, Dr. Scoop, Little Doug and Heather, Mr. and Mrs. Pusher no law, just vibes all the way down, I'm not a lesbian, but but I am fabulous, hand woven, night safe, reflective scarves by Kelly wove at.com. Oh my God, it's Katie, for a fun fantasy story, read the King's Own by W. Marshall, now on Amazon, that thing in the attic, liberals own guns to support root cause mitigation, not ineffective gun control, or maybe both.

1:02:27 Thomas: You so much Hall of Famer patrons you're the best that's our show Andrew thank you so much for listening everybody and we'll see you next time

1:02:35 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

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