The Unique Game of Baseball Arbitration

• Author: Andrew J. Wronski
• Pages: 29-33

Published in Litigation, Volume 48, Number 2, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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The Unique Game of

Baseball Arbitration

ANDREW J. WRONSKI

The author is former vice chair of the National Litigation Department at Foley & Lardner LLP in Milwaukee.

Here’s one venue where it plays out differently—win or lose:

Every February, the salaries of certain Major League Baseball

(MLB) players are decided by three-member arbitration panels.

The defining characteristic is that the panel must choose either

the salary proposed by the player or the salary proposed by the

team. Winner takes all. No splitting the baby.

On a designated date, the team and the player trade proposed

salary numbers. At the hearing, they are locked into those num-

bers. The panel must decide which is the most appropriate. The

primary criteria are the quality of the player’s contribution to

the team during the past season, the length and consistency of

the player’s career contribution, the player’s past compensation,

comparative baseball salaries, the player’s injury history, and the

team’s recent performance.

The hearing is short. Each side has one hour to present its

case in chief. Although the rules are flexible, typically each party

walks the panel through a detailed presentation. Each side ana-

lyzes the player’s recent and career performance, and how that

performance compares with that of other players who played

the same or similar roles on their teams and who, when their

salaries were determined, had the same level of seniority (called

“service time” in MLB). Generally speaking, starting pitchers are

compared with other starting pitchers, shortstops with other

shortstops, and so on.

The player goes first. Unlike traditional trials or other arbitra-

tions, the presentation is almost entirely argument. No evidence.

With rare exception, there are no interruptions or objections.

Once both sides have presented, there’s a short break. Each side

quickly (read here, “frantically”) prepares its 30-minute rebuttal.

Again the player goes first. Occasionally, there is brief sur-rebuttal.

Regardless, after a half day, the case is fully submitted. The panel

typically rules within 24 hours, announcing only which party

has prevailed, with no opinion or explanation of its reasoning.

The hearing process is intense, challenging, and exhilarating.

Each side tries to convince the panel that its proposed salary

should prevail. Each contends that the player looks more like

its “comps”—its evidence of the comparable data—than like the

comps used by the other side.

While dramatically different from a jury or bench trial, these

unique presentation and decision-making dynamics provide valu-

able insights for traditional trial lawyers in traditional settings.

First, go with your best stuff. Unlike salary arbitration hear-

ings, trials are typically not an all-or-nothing exercise. Juries and

judges can accept certain claims and reject others. They can find

in favor of a plaintiff on liability, yet award no or only nominal

damages. They can throw out both parties’ damages calculations

and instead come up with an award that they believe to be fair.