A JUDGE MORE IMPORTANT THAN JUDGE LANDIS

By Murray Chass

May 27, 2009

The judge entered the courtroom at 15 minutes after 2 o’clock in the afternoon, took her seat at the bench and told the assembled lawyers and assorted other interested parties, including those from Major League Baseball, “I know nothing about this except what the common layperson reads in The New York Times.”

Frank Coonelly, who was one of the baseball lawyers at the hearing, laughed the other day when he was asked about the judge’s comment. “I do remember that,” he said. And did he remember what he thought, if anything? “I figured we were in trouble,” he said.

Coonelly figured right. Four days later, on March 31, 1995, Judge Sonia Sotomayor of federal district court told those in her Manhattan courtroom, “I know a lot more than I knew on Monday” and issued an injunction that induced baseball players to end their strike.

Judge Sotomayor became an instant hero to baseball fans. The labor dispute between the players and the owners had gone on for nearly eight months, had forced cancellation of the 1994 World Series and had become the longest work stoppage in United States professional sports history.

But Sotomayor’s decision had far greater impact than simply ending the strike. It saved the owners from themselves because it rendered needless their potentially catastrophic plan to use replacement players with the start of the season only two days away.

Judge Sotomayor, whom President Obama has nominated to fill a pending vacancy on the United States Supreme Court, most likely never heard as celebrated a case as the baseball dispute she settled with a stern and swift ruling less than half an hour after hearing the lawyers’ arguments.

As baseball’s first commissioner following the Black Sox scandal of 1919, Judge Kenesaw Mountain Landis is baseball’s best known judge. But Sotomayor, who will be the first Hispanic Supreme Court Justice, became the favorite judge of baseball fans.

By granting the National Labor Relations Board’s request for an injunction, Sotomayor, a Federal district judge in Manhattan, gave the players the reason they needed to end their strike and go back to work.

Union officials had said before the hearing that if the labor board got the injunction forcing owners to restore work rules from the expired collective bargaining agreement, the players would end their strike and start the season. Sotomayor ruled, and the players played.

Just as Sotomayor is a beneficiary of the presence of a Democratic president in the White House, the baseball union was the beneficiary of the presence of a Democratic president in the White House.

The National Labor Relations Board is a political animal. Its makeup is determined by the party in the White House, and its decisions are usually determined by the political views of its members. Had a Republican been president in 1995 and the labor board reflected his views, it would have been highly unlikely to have taken the baseball case to court.

As it was, the Republican members of the board tried diligently to keep the board out of court. The vote to authorize the general counsel to seek an injunction was 3-2, with the three Democrats voting yes and the two Republicans voting no. One of the Republicans, Charles Cohen, took a step rare for the board, writing a dissenting opinion in which he disagreed with the authorization and said the case had no merit.

When Cohen left the board, he went to work for Morgan Lewis & Bockius, the law firm that represented the owners. Chuck O’Connor, the clubs’ chief labor negotiator, who devised the implementation of work rules that Sotomayor would find illegal, was a Morgan Lewis lawyer.

Had the Republicans controlled the labor board, the strike would most likely have dragged on well into the 1995 season, if not beyond. Even with the strike ended after all, the players and owners didn’t reach an agreement on a new collective bargaining agreement until the fall of 1996.

A further indication of political impact on the board occurred subsequent to the baseball case. Republican administrations had long held a narrow reading on when to seek a 10J injunction. Under Fred Feinstein, general counsel for the Democratic-controlled board, the number of such cases rose significantly. As a result, the Republican-controlled Congress voted to cut the board budget by 30 percent.

In 1995, though, the Democrats were in control, and Dan Silverman, the board’s New York regional director, convinced Feinstein that seeking an injunction was the correct course.

In the absence of a new labor agreement, the owners had unilaterally imposed new work rules.  The labor board contended that the changes were unlawful. Sotomayor ordered the owners to reinstate salary arbitration, competitive bidding for free agents and the anti-collusion provision of the free-agency rules.

Recalling Sotomayor’s remark on Monday about what she knew of the case, Silverman said, “By Friday she knew everything about the case. She had read and digested the briefs in depth and she made a very critical decision demonstrative of the way she conducted cases.”

The owners, Silverman recalled in a telephone interview Wednesday, wanted to call witnesses but the judge “said there was no need for witnesses. I’ve read the briefs and there seems to be no disagreement on the facts of the case so we’ll just have oral arguments.”

Silverman, now an adjunct professor at Cardozo Law School, felt it was important to end the strike by the start of the season and adding witnesses to the hearing would have prolonged it.

“If the owners had started the season with replacements it would have been far more difficult to settle the strike,” Silverman said.

A day before the hearing, the owners voted, 26-2, to start the season with replacement players.  The first game was scheduled two days hence, and teams had to submit their 32-man rosters to the commissioner’s office by 6 p.m. opening night, Sunday.  The Baltimore Orioles, however, refused to put together a roster and were not prepared to play.

Their owner, Peter Angelos, said he was acting to protect Cal Ripken’s consecutive-game streak, but he was also protecting his standing with unions. He was reluctant to hire scab players because as a lawyer, he had become wealthy representing workers in asbestos cases and didn’t want to undercut his position with unions.

Beyond the problems the Orioles presented, the replacement plan would have triggered such animosity among the players that it would have torn the game asunder and created an irreparable fissure.  Using replacement players was an ill-conceived idea, one that most owners were delighted not to have to use.

Sotomayor, who later was elevated to the United States Court of Appeals for the Second Circuit, wasted no time making and issuing her ruling. After conducting a 98-minute hearing, she took only an 18-minute recess before reading her ruling from the bench. It was obvious that she had prepared most of her opinion before the hearing, having studied the lawyers’ briefs.

“This strike has placed the entire concept of collective bargaining on trial,” the judge said in the 47-minute reading of her decision. “It is critical, therefore, that the board assure and that I protect its assurance that the spirit and the letter of Federal labor law be scrupulously followed.”

As Silverman recalled, Sotomayor’s ruling was impressive for another reason. When judges get baseball cases, most get carried away and flavor their comments and rulings with baseball phrases. A Federal judge once ended his decision on a baseball labor case by saying, “Play ball.”

“She didn’t delve into jokes about baseball and didn’t use baseball metaphors,” Silverman said of the judge who grew up in the South Bronx and was said to be a lifelong Yankees fan. “I thought that showed a maturity about the case. She treated it as a legal case, and she decided it on legal grounds. She handled it very professionally.”

 

 

Comments? Please send email to comments@murraychass.com.