Sports Outside the Beltway

Sports Trades and the Law

A story yesterday morning about a trade of minor players between the Braves and Tigers got me thinking again about an issue that has crossed my mind from time to time: the ability of sports teams to “trade” players like commodities.

There aren’t many lines of work where you sign a contract with one company in one location and can be suddenly be shipped to another company, forced to move across the country–or even to Canada–and suffer the family disruption, tax implications, and other consequences at the whim of ownership. There have been instances where a player is traded three times in a single season.

Presumably, the argument is that players have agreed to those terms of employment as part of the collective bargaining process. Still, professional sports leagues operate as closed shops and there’s simply no way to earn a living in one’s chosen line of work without being subject to those rules, making their “voluntariness” dubious.

In the course of my research, I stumbled across the excellent Sports Law Blog but was unable to find the answer to this question by searching their archives. I emailed one of its contributors, Mississippi College of Law assistant professor Michael McCann, and got a very interesting and helpful response:

I have addressed this topic in a couple of my law review articles, including “The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy,” which was published in the University of Pennsylvania Journal of Labor and Employment Law last year. You have identified a legitimate criticism of how leagues operate, and one that, I believe, fans often miss when their minds fixate on the high salaries players earn. For similar reasons, I think people miss how prospective players in leagues have no sway over the terms and conditions that are bargained for by existing players. I wrote this:

    On one hand, the rookie wage scale has proven strikingly effective: Since its implementation, there has not been one draft-pick holdout. Moreover, and quite obviously, rookie NBA players still earn considerably high salaries when compared to the general population; $ 1.5 million for three years would likely satisfy most people’s needs and wants, although many of us would still prefer to choose our employers and location of employment – choices unavailable to rookie players.

    . . .

    Despite reflecting unequal bargaining power for all NBA players and an absence of any bargaining power for those players not yet in the NBA, collectively-bargained rules tend to receive automatic, almost reflexive endorsement by courts and much of the public. In essence, we tend to automatically conclude that if it was collectively-bargained, then it must represent the free will of the parties, so we should investigate no further. This opinion appears characteristic of the fundamental attribution error, a term used by psychologists to describe the tendency of humans to “look at any setting and make casual attributions [so that] certain key features of that setting – the observable actions of individuals – exert disproportionate influence over their evaluations.” Put more simply, we tend to focus on the easiest, most readily-understandable aspects of any relationship, such as two parties in negotiation and how they ultimately divide rights and obligations, while ignoring the more nuanced and less-observable aspects, such as the absence of certain parties in the negotiation and the situational pressures on all parties. For that reason, we prefer to see relationships as between dispositional or “rational” actors rather than between situational characters, even when this preference is uncorroborated.

    The fundamental attribution error may explain why collectively-bargained outcomes, which seem like decidedly explicit manifestations of the human disposition, enjoy broad deference, while we tend to miss that certain parties who are not involved in the bargaining may be more affected than any party to the bargaining. Indeed, premier amateur players, and particularly those on the cusp of entering the NBA, appear to have as much at stake in collectively-bargained rules for future players as do any existing NBA players.

    Along those lines, the fundamental attribution error may explain why we tend to overlook the situational influences on existing NBA players during collective-bargaining. Indeed, locked-out NBA players endure intense pressure to capitulate to league demands, particularly given the absence of viably-alternative basketball leagues. That is, the situation they encounter may distort their decision-making in ways that yield undesired “choices.” Nevertheless, because of the fundamental attribution error, external observers may be more affected by the simplicity of collectively-bargained rules than by either their instrumental components or consequential effects. As a result, the NBA enjoys wide latitude in asserting control over players, and in ways unappreciated by external observers.

As McCann notes, it’s unlikely anyone is going to feel sorry for the plight of professional athletes making multi-million dollar salaries. Still, the amateur draft, trade rules, and other limitations on player autonomy are quite unusual. Indeed, the only comparable labor situation that comes to mind is that of military personnel, especially in the days of conscription.

Fans have the expectation that players will display extraordinary loyalty to their teams, including extending taking a “home town discount” of millions of dollars when free agency (otherwise known as, “the right to work for whomever will hire you under whatever terms you can negotiate just like everyone else”) and “putting the needs of the team above personal goals.” Yet these same fans seem to have no problem with trading these players for better ones if the opportunity arises.

Crossposted at OTB

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