Their losing streak really isn't as long as that of the Washington Generals, the Harlem Globetrotters' longtime patsy, but the lawyers for baseball's owners did take another whipping Tuesday.
The Second U.S. Circuit Court of Appeals in New York denied the owners' request to stay the injunction issued against them by a federal judge last Friday, apparently clearing the way for the season to start April 26.
The three-judge panel will hear the owners' expedited appeal of the injunction order in May, but it seems unlikely to be overturned, if their battering of management lawyer Frank Casey during Tuesday's 60-minute hearing was an indication.
Casey, a member of the owners' longtime firm of Morgan, Lewis & Bockius, had been told by Judge Sonia Sotomayor during Friday's injunction hearing that he misunderstood case law and offered inconsistent arguments.
He was told by the appeals panel that his legal strategy was faulty and that he was trying to confuse the court with double talk.
"You're fuzzing things," Chief Judge Jon O. Newman said. "We're just going around in circles."
The judge, his voice rising, responded when Casey said the injunction and its "whipsaw forces" prevented collective bargaining.
Newman referred to a letter union leader Donald Fehr had sent acting Commissioner Bud Selig, in which Fehr said the players were ready to resume bargaining, and asked if it was Casey's position that the injunction prevented resumption.
"That is correct, your honor," Casey said.
"Well, what will it take to persuade you that that position is wrong?" Newman said. "Do you want to hear it from Judge Sotomayor? Or from us? Or what?"
After Casey had spoken, George Cohen, representing the players' union, got up for his presentation. Judge Ralph K. Winter couldn't resist asking, "Do you like the way the argument's going so far?"
Two of the three judges even second-guessed the owners' legal strategy, suggesting that management had made a significant mistake in not challenging the National Labor Relations Board's view that the impasse the owners declared before implementing their salary cap on Dec. 23 was illegal.
The owners agreed to withdraw the cap and restore terms and conditions of the expired bargaining agreement on Feb. 3 to avoid NLRB sanctions regarding the impasse declaration. Three days later, however, the owners eliminated three key provisions of the expired agreement: salary arbitration, free-agent bidding and the anti-collusion clause.
The union filed new charges of unfair labor practice, and Judge Sotomayor, in issuing the injunction, ultimately agreed with the NLRB petition that the eliminated provisions are mandatory subjects of collective bargaining and cannot be unilaterally eliminated.
In Tuesday's hearing, Newman challenged Casey to give him one case--"I'm not asking you for 100 cases, I'm asking you for one . . ." --in which a court has held that free agency is not a mandatory subject of collective bargaining. Casey could not.
Winter referred to the owners' decision not to challenge the NLRB position on the impasse and said to Casey: "You could have fought that out in court and had a heck of a good case, (but) you didn't. (Then) you agreed to restore the status quo and the very next day you turned around and disrupted it."
Sotomayor's decision forced the owners to restore the eliminated provisions and led the players to make their unconditional offer to end the strike.
Newman denied the stay motion from the bench and said the appeal would be heard no earlier than May 1, possibly by a different panel.
"I think the questioning certainly suggests the areas they want us to address," Casey said.
Fred Feinstein, general counsel of the NLRB, said the decision represented another victory for his agency, collective bargaining and baseball.
"Labor law is working as it should," Feinstein said.
Union lawyer Lauren Rich said the decision again validated the players' view that the owners have failed to bargain in good faith and was another blow to the owners' credibility.
"I think it's likely now that the season will start as scheduled on the 26th," she said.
Rich said the union has still not heard from Selig regarding resumption of bargaining, but "I'm not surprised by that. Litigation has tended to take center stage in this dispute. The appeal won't be heard until May. Now that there's not the urgency, maybe we can get back to the table."
Reached in Milwaukee, Selig disputed Casey, saying the injunction does not prevent a resumption of talks.