The Journal on Sports and Entertainment Law recently sat down with Dave Prouty, who serves as General Counsel for the Major League Baseball Players Association, to discuss current issues involving baseball. Dave graduated from Harvard Law School in 1986, and received his BA from Bowdoin College in 1980.
The interview was conducted by Loren Shokes, the Executive Editor of Online Content and the Online Interview Editor for the Harvard Journal of Sports and Entertainment Law and a current third year student at Harvard Law School (Class of 2017). The interview is part of JSEL’s interview series with lawyers in the sports and entertainment field that will be featured on JSEL’s website. It has been edited for clarity.
**Please note that, throughout this interview, Mr. Prouty was speaking in his capacity as an individual, and not as a representative of Major League Baseball Players Association (MLBPA).**
Loren Shokes, Journal on Sports & Entertainment Law (JSEL): As compared to the 300+ college football games ESPN showed across its various platforms in 2009 alone, the only national television program for college baseball is the College World Series. This has created somewhat of a marketing issue for baseball as fans rarely get to view their favorite college baseball players and many fail to make it to the pros. In what ways do you think baseball can do a better job marketing young talent and keeping fans interested in college baseball?
Dave Prouty (DP): In the course of my job I don’t deal directly with college baseball, so the perspective I can give you is only based on what I know from observation. College baseball clearly doesn’t get the same attention as basketball or football, and that’s a shame. There are many fewer scholarships that are given out and allowed for baseball by the NCAA, as compared to football and basketball. Major League Baseball and the MLBPA have a big joint youth initiative now to promote more youth involvement in the game, and that’s taking place on several levels. Part of that is a push by both parties to increase minority involvement in the game. There’s a general recognition that the number of African Americans participating in baseball has declined because more people are attracted to football and basketball and the opportunities are perceived to be greater and more immediate.
The last thing I’ll say is that there’s kind of a sense in which there are cross-purposes here because you have college baseball and minor league baseball and they overlap somewhat. I think there’s a question of which you emphasize and for what reason and that’s something baseball should be thinking about. As a union, we always encourage players to go to college and I would like to see a system that did more to promote those opportunities and that choice. But at the end of the day, the choice has to be the player’s and we completely respect that.
JSEL: With Major League Baseball’s CBA set to expire December 1st, 2016, what advice would you give to players, and more generally free agents, who are concerned about a potential lockout?
DP: I would say that they should stay very involved and in touch with us and they should inform themselves about all the issues that are likely to come up during the negotiations. Players are in fact doing this. We make a huge effort through various means, including lots of face-to-face meetings and various forms of social media communication, to keep our members informed. So my advice to players who are worried about a lockout is to educate yourself, stay involved, and make your opinions known because as a Union that’s what we are, the representatives of the players. Everything we do and every decision we make is based 100% on the input of players, and the strength of the union is the solidarity of its membership. I’m a lawyer for the union, I’m not a baseball player, so my “client” is the union that represents the Major League baseball players as an organization and my job is to help them get, and then help them to enforce the best contracts and the best collective bargaining agreement we can.
JSEL: Baseball is one of the most popular sports worldwide and more than a quarter of all MLB players are foreign born (e.g. David Ortiz, Didi Gregorious, Miguel Cabrera). With the CBA set to expire later this year, do you think both MLB and the MLBPA will negotiate to try to make baseball a more international sport, for example by having an International Draft Day or expanding the World Series so that the top US baseball team would play other countries top teams to truly become a World, and not just National, Series?
DP: Along with MLB, we sponsor the World Baseball Classic, which has expanded every time it has been played and, starting in a couple weeks, there will be the first round of elimination games for the 2017 WBC. It’s now expanded to 30 countries who field teams. So in a very real sense it’s the World Cup of Baseball and players from lots of Major League clubs participate for their country and they love it. The WBC gets a lot of exposure here and even more so in other countries. So it’s a huge deal.
There’s a lot that baseball’s doing and that we’re doing with baseball to expand the reach of the game internationally and I’ll give you a few examples. First in the works, there’s an exhibition game in Cuba during spring training. There’s some talk of having actual games in London. We’ve played real games in Australia and Japan and China and there are also exhibition tours to Asia. There will also be a Major League exhibition game in Mexico City this year as well, and we have had real games in Mexico and also in Puerto Rico. So there’s a huge push to expand the game internationally that is supported by both union and management.
Lastly, it would help for visibility and the popularity of the game if the Olympics would agree to put baseball and softball back into the mix as an Olympic sport, as they were taken away a few years ago. There’s some effort by the International Baseball Federation to have that happen and we obviously support that. (Note: Baseball and Softball were added by the IOC for the 2020 Tokyo Summer Games in 2016).
JSEL: From numerous headline cases of professional players using performance enhancing drugs (PED’s) to the questionable legality of fantasy baseball sites, fairness in the game as a whole has become an increasingly talked about subject. My question is in what ways has the MLBPA tried to regain fan’s trust in the integrity of America’s Pastime?
DP: First, we’ve negotiated with MLB what is generally considered to be the toughest drug testing in sports. On PED’s, our players voluntarily agreed to a program where, all told, they get tested over 6,000 times a year in the aggregate and the number of performance-enhancing substances that they get tested for is added to all the time; the penalties for testing positive have been ratcheted up over the years. All of that has happened at the Players’ insistence and/or with their cooperation. All of that is a strong signal from the players to the fans and to the public that they understand that PED’s should not be part of the game and that they’re willing to help police themselves to get PED’s out of the game.
With regards to fantasy gambling, there’s already, and again the Union agreed to this as part of an overall attempt to reinforce the integrity of the game, a rule that is in place that neither players nor anyone connected with baseball can participate in fantasy games for money that involve baseball. The reason obviously is to make everyone understand that there is no potential or incentive for cheating in baseball and, as we’ve seen with the example of Pete Rose, baseball deals quite harshly with people who are found to have done that.
Lastly, several years ago the MLBPA established the Players Trust, a 501(c)(3) charitable organization that is the first of its kind in professional sports. Through the Players Trust, Major Leaguers contribute their time, money and celebrity to call attention to important issues affecting the needy and to help encourage others to get involved in their own communities.
JSEL: Between 1976 and today, inflation has increased 400%, Major Leaguers’ salaries have skyrocketed 2,000%, and Minor Leaguers’ salaries have increased a meager 75%. While many Major League players often share similar stories of how they had to scrimp and save while they played in the minors, rarely, if ever, do they protest to create a minor league baseball players association as MLBPA only represents those players in the Majors. Can you speak more about why you think such a union has yet to be formed and if you predict that we will ever see a Minor League Players Association.
DP: I don’t know whether we will ever see it, but I hope so. I will say that as a trade unionist I think that anyone who’s employed by anyone else should have the opportunity to join a union and if they’re smart they would join a union. So I think it should happen. However, there are a lot of obstacles to a successful union drive for minor league players. They move around a lot and they have their eyes focused on the prize of getting to the Majors, so they don’t personally identify as permanent minor league baseball players. There’s also a certain amount of intimidation, I’m sure, that players don’t want to step forward, and we have this all the time in the labor movement, that employees take a risk being known as a union activist for fear that it will hurt their career. So there are a lot of hurdles to overcome. Based on what I know about the conditions of life in the minor leagues and what I hear from our members who are now major league players, there’s a lot of room for improvement and I applaud the efforts minor leaguers are making to improve their lot.
JSEL: Approximately 8.6% of NCAA college baseball players successfully matriculate to the Major League and virtually all Major League players play for a minor league team at the start of their career. Because the minor leagues are notorious for their paltry pay and, in combination with the diminutive number of players who are able to successfully transition to the pros, do you think that college players should be paid to play for their universities?
DP: Yes. By way of background, not only our union but also all the major sport unions in the country filed an amicus brief on behalf of the Northwestern University football players when they tried to organize a union of their own. In one of the rare NLRB decisions under the Obama Board that I disagreed with, I was disappointed to see that they were not given that opportunity. So I think that people who work and perform services for the university, whether they play football, baseball, or do anything else, should have the right to organize a union and negotiate with their employer.
JSEL: Have you noticed a difference in how players interact with fans with the increasing prevalence of social media? Additionally, do you view such interactions as beneficial to help players establish a stronger rapport with the public and, alternatively, have you seen any downsides or negative unintended consequences with players directly communicating with fans on sites such as Facebook, Twitter, and Instagram?
DP: The answer to the first set of questions is yes—we’ve seen an increase and I think it’s a good thing. I think players like it and so much of the public is on Facebook and Twitter so it’s a great thing to promote interaction with fans on social media where fans are located. The MLBPA has its own social media platform called Infield Chatter, which is designed exactly to do that—to promote that kind of increased interaction between fans and players on general or specific issues they happen to share in common. So I encourage people to go look at that site [www.InfieldChatter.com].
As to the detrimental effect, like any social media, there are things that happen when you say things that, in retrospect, you wish you hadn’t said. I don’t know if that’s the case necessarily but that’s the nature of the free market of information—it’s out there. So there could be individual detrimental incidents, but on the whole we think it’s a very positive thing that helps connect fans to the game and that makes fans more interested and hopefully gets more of them to come watch our games.
JSEL: Can you tell our readers more about your day-to-day tasks and the wide range of issues you encounter working for the Player’s Association.
DP: Every day is different. We’ve obviously got a lot of work we’re doing now to prepare for collective bargaining (our agreement expires in December 2016) so we’ve been spending a lot of time speaking with Players and getting their views and we’re now in the process of putting together proposals for MLB over the next several months. We’ve also got a number of individual grievances that we’re always handling for players on a wide range of issues such as injury assignment and missing money for things like meals, hotels, or moving expenses. We’ve had some cases involving alleged incidents of domestic violence and from time to time we have players test positive for performance enhancing drugs and we represent them in those cases as well.
We’re also in the middle of salary arbitration right now for players who have roughly 3-6 years of experience. We’re designing a curriculum for players so that we can present education sessions for them on domestic violence during spring training. We’re working on our spring training presentation to the players about bargaining. We’ve spent a lot of time recently talking to Major League Baseball about rule changes, and tinkering with the system on issues like pace of game, instant replay, and various other minor rules changes. I work with a great bunch of lawyers and they all have specializations in each of these areas and so part of my job is to keep track of what they do and give them advice.
JSEL: I read that you worked for Unite Here, a union representing clothing, textile, laundry, hotel and restaurant workers for 22 years prior to joining MLBPA. Can you speak to some of the similarities and differences between the two positions.
DP: I think most fundamentally unions represent workers and whether you’re a hotel worker, a clothing worker, or a baseball player, if you live and work under a collective bargaining agreement, the job of a lawyer is to protect the rights of your members and make sure the employer follows that agreement. So that’s a lot of what is similar between what I used to do and what I do now. I’m still a union lawyer.
Obviously there are some differences. A lot of what our members do is much more in the public eye than the jobs of the average hotel or clothing worker so we have to be conscious of that. I did not have very many reporters calling me when I worked at my old job, whereas I certainly do now. We didn’t have to do a lot with drug testing and issues like that when I was with Unite Here. Once I got here I had to learn a lot about the business of baseball and the baseball industry, but once you do it becomes in many ways like any union lawyer job. You file grievances, you negotiate a collective bargaining agreement with management, you deal day to day with management, settle cases if you can and if you can’t then you take the cases to arbitration and let an arbitrator sort it out for you. Working for Unite Here, I went to lots of union meetings, I talked to members of the union a lot, and I helped educate them and explain things to them. I still do the same things here.
One other thing I’ll say about baseball players is that they are very involved. They’re very committed to the union and I’ve been very impressed by level of interest that baseball players show in their careers and in their fellow Players. The MLBPA has a pretty long and solid history of being one of the strongest unions in the country. You can see how that commitment is passed down from generation to generation, from the veterans to the younger players. There’s a saying that Dave Winfield, who’s on our staff, often repeats: today’s baseball players need to remember and honor the sacrifices the players before them made so that they would get what they have now, and in turn today’s players have to make sure that they act in a way that protects all of those benefits for the players who will follow them.
JSEL: Can you tell our readers more about your career and how you became MLBPA’s General Counsel.
DP: Sure. I came from a union family. My father started out as a machinist in an aircraft engine plant and ended up helping organize his factory into the UAW. He then went on to work as a staff person for a number of unions. So I grew up around the labor movement. When I finished college, I wanted to try to get involved in the labor movement. I worked as a researcher and then as an organizer for another union called AFSCME (American Federation of State, County, and Municipal Employees). After three years, I went to law school with the idea that I could make a solid contribution to the labor movement with a law degree and as a union lawyer. And the law – both labor law and law in general – was interesting to me. So I did that, went to law school, and ever since I graduated I’ve worked for various unions, including ACTWU, UNITE, UNITE HERE, and the MLBPA.
The last part of the story is how I ended up here at the MLBPA. In law school I was friends with a guy named Mike Weiner and we became good friends as we shared an interest in baseball and we were two of the only people who were interested in unions. When I was in law school, I organized a trip every year to Fenway Park and we watched Opening Day for the Red Sox. Years later, Mike called me, looking first for me or otherwise for a recommendation of senior labor lawyers. At first I hemmed and hawed, and he had to recruit me a little bit, but it was time for me to make a change and I had always had great respect for this union so I came to work for Mike at the Players’ Association. After Mike moved up from General Counsel to be the Executive Director, he eventually appointed me as General Counsel. Sadly, it didn’t last long enough; Mike passed away fifteen months after being diagnosed with a brain tumor, which was a big shock and a big loss to all of us. Nevertheless, we were fortunate to have Tony Clark, who’s a retired Player and now the Executive Director, available to step in and take over and keep the tradition in the Union going and I have stayed on as General Counsel throughout.
JSEL: What is the best piece of advice you can offer law students who have an interest pursuing a career in sports law?
DP: The first thing is shown by the example I just gave you: be nice to the people with whom you go to law school, because years later they can pick up the phone and call and offer you a job. But more seriously, the advice that I usually give people is to find something to be good at and to specialize in, and it doesn’t have to be sports law. For instance, whenever we hire here at the Players Association we look for someone who’s either a really good union lawyer, or occasionally a really good business lawyer because we have a whole licensing arm. So the main recommendation I would give if you’re interested in a career in sports law is to find something to do, hopefully sports related, but really work hard and demonstrate your capabilities. You never really know when or how opportunities will arise or when you’ll be at the right place at the right time. But it never happens without a lot of hard work and a lot of integrity. You have to carry integrity with you through your whole career.