As we move closer towards the end of the baseball season, we also move, unfortunately, towards the likely setting of a strike date, and increased attention on issues like collective bargaining, owners' meetings, and labor law. What chain of events are we likely to see as we move into August, September and beyond?

Collective bargaining
The representatives of the Major League Baseball Players' Association (MLBPA) and Major League Baseball (MLB) are scheduled to meet later this month to continue discussions regarding a new Collective Bargaining Agreement (CBA). The CBA lays out the work rules for baseball, from big items like the rules for arbitration and free agency, to the little things like meal money.

The central issue in the negotiations this time around, just like every time around, is money. MLB claims that clubs are losing money hand over fist, and that there must be some sort of salary restraint in place, above and beyond the individual budget of clubs, in order to make clubs financially healthy for the long-term. The clubs also claim that high salaries and large disparities in revenues from team to team have created a competitive balance problem, and that a salary restraint, such as an NFL- or NBA-style salary cap will level the playing field and restore "hope and faith" to the fans of small-market clubs like the Royals.

The MLBPA claims that there is no systemic problem with the economics of the game, either in terms of financial health, or in terms of the competitiveness of the game on the field.

To date, the parties have danced around the key issues, knowing that both sides are very firmly entrenched in their positions. Before the 1994-95 negotiations, MLB owners passed a bylaw that requires any new collective bargaining agreement to pass with a three-fourths majority. In other words, any group of eights clubs can act as a voting bloc to prevent the passage of an agreement they don't like. As a result, the owners have become almost as adamant about an external salary restraint as the players are about not ever allowing one.

Like the 1994-95 labor dispute, this one is as much about disagreement among owners as it is about disagreement between owners and players. There are different factions among ownership with regards to labor issues, but the dissent was stifled, until very recently, by the threat of a $1 million fine for public mention or discussion of labor concerns. Don't be surprised if the MLBPA chooses to give ground on revenue sharing in negotiations. Increased revenue sharing will have a mild drag on salaries, but absent a nasty luxury tax, the drag is relatively minor. It will probably be harder to get 23 owners to agree on a revenue-sharing plan than it will be to get the players to agree to one.

The MLBPA will probably set a strike date sometime in August, for a strike to begin on or about September 16. By choosing that date, the players minimize their financial loss, risking only one paycheck. If an agreement is reached quickly after a work stoppage begins, it's possible that the regular season may resume and the postseason saved. Those first few days of September may be the stretch run -- it's entirely possible that the teams in first place on September 15 may end up going to the playoffs.

If the players strike, and players and owners cannot reach an agreement quickly, either in the form of a CBA, or a pledge from the Commissioner's Office not to declare an impasse and implement new work rules after the season, it is possible that the postseason will be cancelled for the second time in a decade.

What if collective bargaining fails?
Then the legal dances begin. If the owners and players cannot come to an agreement, owners have the option, if they have negotiated in good faith, to declare an impasse -- a state of hopeless deadlock -- and unilaterally implement new work rules. If the owners do this, the MLBPA will likely file a grievance with the National Labor Relations Board (NLRB).

The NLRB serves as kind of a clearinghouse of legal information, enforcement, mediation, and ultimately, jurisprudence when it comes to labor relations. The NLRB basically has two jobs: guarantee that elections regarding union representation are run properly; and police unfair labor acts. With regard to baseball, the NLRB is the body that heard the MLBPA's grievance in 1995. The NLRB voted 3-2 in agreement with the players that MLB owners had not bargained in good faith, and could not unilaterally eliminate salary arbitration or the agreement not to collude contained in the expired CBA. The NLRB's New York office then sought and obtained a preliminary injunction blocking these moves by the owners, whereupon the players called off their strike and went back to work under the terms of the expired CBA until the parties reached a new agreement.

Under President Bush, the makeup of the 5-member NLRB panel (currently with one vacancy) has changed dramatically since the Clinton administration, with a markedly pro-management tilt. Ownership believes that with the appointment of Mike Bartlett, formerly of the U.S. Chamber of Commerce, and William Cohen, formerly with Institutional Labor Advisors, the NLRB will reject a potential MLBPA claim of failure to negotiate in good faith. If that happens, the owners will be free to unilaterally impose new work rules, including all the provisions of their most recent offer. From that point on, negotiations and contract signings would take place under the rules sought by the owners rather than the terms of the expired CBA.

So is the NLRB's decision the last of it?
Not quite. If everything goes against the MLBPA and the owners implement new work rules, the MLBPA has another option that is seldom mentioned -- decertification. The members of the MLBPA can vote to decertify the MLBPA as their collective bargaining representative. Such a step would immediately end the collective bargaining relationship, and leave the parties in the positions they would occupy if there had been no CBA at all.

This option was not available to the players in 1994-95. At that time, baseball's unique antitrust exemption meant that once the parties reached a bargaining impasse, the players' only choices were to strike or to operate under the owners' proposal. One provision of the 1996 CBA was an agreement that the owners and players would jointly ask Congress to eliminate baseball's special antitrust exemption with respect to labor matters. The result was the "Curt Flood Act of 1998," which for the first time gave members of the MLBPA the same legal rights enjoyed by their football and basketball counterparts. One of these rights is the opportunity to invoke the antitrust laws against anticompetitive conduct. Although the labor exemption to the antitrust laws allows multi-employer groups in the same industry to negotiate a single CBA covering all of their employees, the exemption applies only as long as a collective bargaining relationship exists. Once the workers decertify their union, each employer must negotiate individually with its employees and prospective employees.

The consequences of decertification could be great. Without an exemption from the antitrust laws, the owners could be sued for any collective action which threatened to reduce player salaries or mobility. Such actions would include a salary cap, a luxury tax, and any limits on free agency not contained in the individual players' contracts. Affected players could sign contracts, then sue for the difference between the salary they received and what they would have earned without the restrictions -- and under antitrust law, all such damages would automatically be tripled.

As Marvin Miller, father of the modern MLBPA, once said, "A union only makes sense if the members have more power with a union than without." Even after decertifying the MLBPA as their bargaining representative, the players could contract as a group for the current management of the MLBPA to take care of administrative tasks, such as representing ballplayers in negotiating licensing agreements, and could individually retain Donald Fehr, Gene Orza or other sympathetic attorneys to sue Major League Baseball.

So there's still a long way to go until the meta-rules for baseball over the next few years are finally handed down from the mountain. No matter what kind of solution you may want to see, let's hope the next agreement has a term of a very long time, and that we enter into a more enlightened and generous era for the game.

You can check out more work from the team of writers of the Baseball Prospectus (tm) at their web site at baseballprospectus.com.