By Stephen J. Nesbitt, Mike Vorkunov and Evan Drellich
[Editor’s note: This story has been updated with additional information about jersey and merchandise sales]
Overnight last week, as Major League Baseball owners implemented a lockout, the league began acting as if its unionized players — those on 40-man rosters — no longer exist.
Advertisement
The players have been scrubbed from the league’s website and content ecosystem. Their headshots were removed from rosters, their highlights hidden, their names wiped from promotional schedules. (April 30 is “Cardinals Third Baseman Bobblehead” day at Busch Stadium.) Team social media accounts quieted and ceased referencing players at all; the league’s Twitter account went nearly three days without activity this weekend. MLB Network and MLB.com employees were instructed to mostly avoid mentioning active 40-man players’ names on air or in articles for the duration of the lockout.
But exactly why MLB is taking this route isn’t clear.
MLB is advised in labor relations by the law firm Proskauer Rose. Asked to explain the reason the league drastically altered its content vehicles, a commissioner’s office spokesperson said, “Every action we are taking is at the advice of legal counsel per the National Labor Relations Act.” The spokesperson declined, however, to identify what specifically in the NLRA or baseball’s collective bargaining agreement prompts or merits erasing current players.
When commissioner Rob Manfred was asked last week in a news conference whether it was a legal issue, he offered two words: “It is.” But legal experts who spoke to The Athletic found it difficult to confidently identify MLB and Proskauer’s potential legal theory.
“I can’t think of anything,” said Dave Leach, a professor at Brooklyn Law School and a former regional director for the National Labor Relations Board. “I’ve never seen a case which had similar facts. And I was there for 45 years, so I saw a good number of cases at the board.”
Bruce Meyer, the lead negotiator for the players’ union, said MLB made the decision on its own, “and you’ll have to ask them for their reasons.”
“It’s a little bit of a mystery why they think this is somehow required legally,” said Jason Wojciechowski, a lawyer at Bush Gottlieb and former editor at Baseball Prospectus. “I don’t know what aspect of the law they think they’d be in violation of. As a union lawyer, my suspicion is that’s cover. But on the other hand, cover for what?”
Advertisement
Nathaniel Grow, a professor of business law and ethics at Indiana University who writes for FanGraphs, thought it was fair to wonder whether MLB could be applying a pressure tactic. But if so, it might not be a particularly effective approach.
“How much pressure does it really apply?” Grow said. “Is it more of just an aggravating tactic? Are the players going to cave on a second-year arbitration (demand) because their pictures are down from the website? Probably not.”
Said an MLB spokesperson: “These actions are not intended to punish players in any manner whatsoever.”
In maintaining their stance, MLB will try not to use players’ names or likenesses for promotional or commercial purposes during the lockout, the league said. Yet, as of Monday, MLB continued to sell player jerseys, with player names and numbers, through its websites.
Regarding the jersey sales, an MLB spokesperson said “products that feature player name, image and likenesses, will continue to be available for sale when those products obtain NIL rights from an agreement independent from the CBA.” The rights to sell jerseys, for example, come from MLB Players Inc., a corporate subsidiary of the union.
Both Grow and a player agent who would speak only anonymously speculated that the website and network changes could have something to do with a clause in the uniform player contract, or UPC. The UPC is included in the CBA, and has clauses that address promotional activities and club usage of photographs.
“The Player agrees that his picture may be taken for still photographs, motion pictures or television at such times as the Club may designate and agrees that all rights in such pictures shall belong to the Club and may be used by the Club for publicity purposes in any manner it desires,” reads the UPC.
The most recent CBA has expired. Player contracts, though, aren’t torn up at the moment a lockout arrives — if your favorite player was under contract before the lockout, he remains so.
Advertisement
“I still don’t think (the scrubbing) is actually legally required,” Grow said. “But again that’s the best theory I’ve been able to come up with.”
There can be competing views on what legally is required during a lockout, though. In one area, injury rehabilitation, the players’ union and commissioner’s office are known to interpret the requirements of the NLRA differently.
MLB might have raised eyebrows no matter what it did. If the league had continued to use player images during a lockout, players might have been angered the league had done so.
The decision has turned a nonstop content machine into a non-entity. On Wednesday, baseball was in the midst of a hectic and exciting free-agent frenzy. By Thursday, those same players barely existed on the site.
“It’s a stunning little dimension of the dispute,” said Daniel Gilbert, a labor and history professor at the University of Illinois. Gilbert has followed the MLB-MLBPA labor situation more closely than most baseball fans, yet even he was surprised by how, at the stroke of midnight last Thursday, the first volley of the lockout came in the form of grayed-out headshots and an empty front page on MLB.com. “I think it does highlight how central players’ names, images and likenesses are to the labor politics of the sport,” Gilbert said.
That visual was widely ridiculed on social media and across the internet. If there was any tactical reason for the league to choose that course, it has backfired in the eyes of some. Legal questions aside, Gilbert said, the optics of wiping websites and instructing reporters to ignore players suggest it’s “the owners trying to present themselves as the trustees of this industry that is bigger than and not dependent upon … the labor of any particular players.”
“But it seems to be such a foolish strategy,” Gilbert said. “By scrubbing the images from the website, they’re making one of the union’s fundamental arguments for them. I think the union is on solid ground by arguing that you can’t have something called Major League Baseball without the players who make it happen. You don’t have the Angels without (Shohei) Ohtani and (Mike) Trout. You don’t have the Dodgers without Mookie (Betts) and (Walker) Buehler. You don’t have the Yankees without (Aaron) Judge and (Giancarlo) Stanton.”
Advertisement
In the weeks leading up to the lockout, MLB officials instructed league and club employees on how they’d overhaul the league’s content streams in the event of a work stoppage.
All team personnel — from low-level staffer to front-office executive — were told they must not contact players or comment on them publicly. Social media managers were to remove monetized Facebook and Twitter posts using the name or likenesses of active 40-man players and hide or delete YouTube videos featuring them, per a club employee.
For MLB.com reporters, the new content limitations were explained last month in staff meetings. Multiple MLB.com employees said they were told they could only mention a player’s name in an article if absolutely necessary, and that player could not be the focus of the story. Any reference to a player must be approved by editors. Reporters were encouraged to write evergreen stories — about former players, non-40-man prospects, coaches, Hall of Fame candidates and history — instead of forward-looking angles about the upcoming season.
MLB.com reporters initially were instructed to maintain a low profile on social media during the lockout, according to sources, but hours before the CBA expiration that directive changed: Writers are to avoid posting about baseball on social media until further notice. (That restriction was eased the following day, yet reporters were asked not to mention 40-man players or comment on the labor situation.)
At midnight Thursday, the MLB.com site transformed to feature only a note from commissioner Rob Manfred and evergreen features. Shortly after the lockout began, a brief explanation was posted on MLB.com acknowledging that “content on this site looks a little different than usual.”
MLB.com reporters and MLB Network on-air personalities may cover breaking news and CBA negotiations, according to the league, but will not create content featured around current players until a new CBA has been agreed to. That means very rare mentions of players on the league’s website or network due to a Catch-22: MLB Network and MLB.com can still mention players where breaking news warrants it, but because there will be no transactions and little news for the considerable future there will be few occasions to discuss them by name.
MLB Network plans to still air old games and archived footage that doesn’t involve current players — that footage is under MLB’s copyright, the league noted. Individual clubs will also be limited in how they can use the name, image and likeness of their players; players are not permitted to attend any club event or appear on any club programming or media channels, including social media, per MLB.
Advertisement
While MLB has not had a previous work stoppage in the internet age, other leagues have. The NBA did not use images and video of its players on its website immediately after it began its 2011 lockout of the league’s players. That choice, the league told The New York Times then, was a tactical one, not a legal one. Within three weeks, the league’s website would include stories referencing their current players and run stories on their intentions to play for European teams during the lockout, according to a survey of the site through the Internet Archive.
During the 2012-13 NHL lockout, there were some content restrictions for NHL.com reporters and NHL Network personalities, according to multiple former employees. NHL Network was criticized for its coverage of the lockout, airing reruns of non-NHL games rather than discussing the state of the labor situation. Former NHL.com reporters recall being instructed to write about active NHLPA players only if they were visible at a CBA meeting; in that case, however, that was not delivered so explicitly from the outset as MLB.com’s recent directive.
Two days into the NHL lockout, then-Los Angeles Kings reporter Rich Hammond (now an NHL editor at The Athletic) published an interview with Kings forward Kevin Westgarth, the team’s NHLPA player rep who had been heavily involved in CBA negotiations. The league demanded that the Kings remove the story from their site, claiming Hammond was a team employee and couldn’t have contact with active players. Hammond had never been censored by NHL.com before. He quit.
Perhaps, when it comes to covering labor disputes from inside the house, MLB is learning from the NHL’s experience. There is certainly crossover between the leagues today. In 2015, MLB Advanced Media struck a deal to run the NHL’s digital and broadcast operations, which included migrating NHL Network to be under the same roof as MLB Network in Secaucus, N.J.
NHL commissioner Gary Bettman is also an alumnus of Proskauer, the firm that produced former NBA commissioner David Stern. (Current NBA commissioner Adam Silver worked at a different firm, but his father worked at Proskauer.) MLB’s current lead negotiator, COO Dan Halem, worked at the firm as well.
On Thursday morning, Mets pitcher Trevor Williams saw his roster headshot replaced by a generic silhouette and was amused. Williams made the silhouette his Twitter profile picture. The Yankees’ Jameson Taillon followed suit, then San Diego’s Joe Musgrove too. The trend spread from their text thread to players all around the league. They like the message it sends. One day, they were proud MLB players. The next, the league hardly recognized them.
(Photo: MLB.com)