Yes, this is yet another piece addressing the problem of service-time manipulation, an issue which has been discussed at some length both in these pages and others. In 2018, Ronald Acuna, Peter Alonso, Vladimir Guerrero Jr., Eloy Jimenez, Gleyber Torres, and even Byron Buxton have all spent extra time in the minor leagues this year, in whole or part to gain their teams an extra year of contractual control.

The MLBPA has weighed in against the practice, but with grievances — like the one filed by Kris Bryant in his rookie year — essentially having stalled out, there doesn’t seem to be a resolution on the horizon. Because minor leaguers (that is, players not on a major-league 40-man roster) aren’t members of the union, the issue of service-time manipulation hasn’t necessarily represented a priority.

Here’s the Blue Jays’ 40-man roster. Vladimir Guerrero Jr. isn’t on it. He almost certainly will be next year. As of right now, though, he isn’t — which means he also isn’t a member of the Major League Baseball Players’ Association. Somewhat surprisingly, there’s a way that might actually represent an advantage for him. Specifically, it might give him the opening he needs to challenge the practice of service-time manipulation in court… and win.*

*For our purposes, let’s assume that Toronto is subject to American law. As you’ll see, the argument below can be applied really to any minor leaguer. We’re just using Vlad as an example.

Few teams admit to manipulating service time. It is not surprising, therefore, to find that the Blue Jays have also been reluctant to invoke service time when justifying the absence of Vlad Jr. from the major-league roster. Here is how Blue Jays president Mark Shapiro explained it back in July on SiriusXM Fantasy Sports Radio:

We want to make sure from the teenage perspective, leadership perspective, defensive perspective, routines, nutrition, all the little things, that we have this guy with as good a foundation as possible.

Most of the traits invoked here are sufficiently dependent on the opinion of baseball professionals that the prospect of performing any kind of analysis on it, from the outside, is basically impossible. Leadership and routine: both are surely required, in some volume, to flourish in the majors. The people most well positioned to evaluate those qualities are all probably employed by the Blue Jays, however. To that degree, all one can do is take Shapiro at his word, even if those words seem quite convenient for Toronto’s bottom line.

Shapiro mentions another “perspective,” however, that is less frequently invoked by front-office personnel and which also seems more suited to some kind of objective assessment — namely, nutrition. Nor is this the only occasion on which it has been cited by Toronto as one of the reasons for leaving Vlad Jr.’s potent bat in the minors. So let’s consider nutrition for a moment.

Minor leaguers typically earn around $1,100 per month, which makes it hard to afford healthy food. Vlad Jr. is likely not as cash-strapped as other minor leaguers, of course, because he received a $3.9 million signing bonus. Nor does that even consider the funds made available to him by his own father, who made roughly $125 million in the majors. So even if money were an issue for the average minor leaguer in his attempt to eat well, it probably wouldn’t be for Vlad the Younger.

As teammate Bo Bichette notes in Scott Miller’s recent profile of Guerrero, however, a lack of funds isn’t the only impediment to good nutrition in the minors:

“This life is not easy, and not just our dads, but our families have been through it… Road trips, not being able to eat what you want, we’re ahead of the curve a little. “The Blue Jays do the best they can with nutrition, but when there’s an eight-hour bus trip and we stop at a truck stop and there’s McDonald’s, Burger King, and Dunkin’ Donuts for choices… there’s a learning curve.”

As Bichette notes, there are obstacles for minor leaguers that can make finding good food difficult — obstacles that wouldn’t seem to be present for major leaguers, for example. Even here, though, Guerrero appears to have taken unusual steps to accommodate those obstacles. From Miller’s piece, again:

Each morning here, Altagracia Guerrero is in the kitchen cooking by 7 a.m. Chicken, rice, black beans, sometimes plantains. One of Vlad Jr.’s favorite dishes is moro de guandules with goat. As she did with her son, Altagracia sends extra portions to the ballpark with her grandson. It’s no wonder he’s so well-liked.

Apart from introducing us to what appears be the world’s best grandmother, Miller’s profile also reveals a paradox with which Guerrero must contend. On the one hand, the Blue Jays have told Vlad Jr. that, in order to make the big leagues, he has to improve his nutrition. At the same time, however, the terms of his minor-league assignment frequently limit his options to truck-stop fast food. To address those limitations, he takes the somewhat extraordinary measure of eating home-cooked meals. Still, he’s unable to earn a promotion.

This is the uniform minor-league contract. You can already see that it’s pretty different from the uniform major-league contract; most of the added length in the minor-league contract consists of additional restrictions on player conduct and grounds for termination of the contract by the team. Also present is this paragraph:

“Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving ‘bad faith’ because they violate community standards of decency, fairness or reasonableness.”

Remember when we talked about the covenant of good faith ? Section 205 of the Restatement (Second) of Contracts reads: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” The comments to Section 205 include this definition of the good faith covenant:

If Guerrero were interested in challenging the practice of service-time manipulation, this language represents one means by which he could do it. His pitch to a court would go something like this: the Blue Jays are the proximate cause of the nutrition problem they are saying Vlad Jr. has. In other words, his current nutritional status is a reasonably foreseeable consequence of the Blue Jays’ own actions.

Think of it like this: let’s say that two people enter into a contract. Person A agrees to pay Person B $100. In exchange, Person B agrees to dig a hole 10 feet deep on Person A’s property. Let’s say, though, that after Person B gets five feet down, Person A starts throwing dirt into the hole, impeding B’s progress. “I don’t have to pay you $100, because you haven’t reached 10 feet down yet!” says Person A. This continues for a few hours, until finally Person B gives up and storms off to read Jeff Sullivan’s latest piece for FanGraphs.

The law doesn’t say that Person A gets to keep that $100. That’s because not only did Person A breach the contract by violating the covenant of good faith and fair dealing, but he also committed, by conduct, something called “anticipatory repudiation.” In other words, Person A, by throwing dirt into the hole, gave notice to Person B that he didn’t intend to keep his side of the bargain. So even though the contract was never completed by either side, Person B is entitled to compensation under a doctrine called “quantum meruit” — that is, reasonable payment for the work actually completed.

What does that have to do with Vladimir Guerrero Jr.? Think of the Blue Jays as Person A, and Vlad Jr. as Person B. Person A says, “Improve your nutrition and we’ll call you up to the big leagues!” Then, Person A throws fast food at him, while giving him no other reasonable alternatives. After all, you can’t have food delivered to a moving bus. The Blue Jays have arguably created a situation where, for Vlad Jr., performance is impossible. We could make the same argument for defense-based considerations. If the team says Vlad Jr. must work on his defense in games in order to get called up to the majors, and then the close of the minor-league season means there is no place to play those live games, that, too, creates a paradox where Vlad Jr. has been asked to do the impossible. The Mets recently did this with Peter Alonso.

Now, ordinarily, this is the part where we’d talk about labor-law preemption — the idea, one we discussed here, that a lawsuit is barred where the rights of the parties to the dispute have been collectively bargained. In Vlad Jr.’s case, however, it isn’t relevant: he isn’t a member of the MLBPA. Now, last year, that might not have mattered. Until recently, courts were clear that collectively bargained agreements applied to non-union members, as well, and the CBA is even incorporated by reference into the uniform minor-league contract. A court may very well have ruled that the CBA applies to the Blue Jays’ relationship with Vlad Jr. even though he’s not a union member. But it’s very possible that things are different now.

You may have heard about the Supreme Court’s decision in Janus v. AFSCME earlier this year. (If you want a full rundown of the case, I wrote one for Chicago magazine.) For our purposes, it’s enough to say that the case concerned “carrying fees” — whether or not a public sector union could charge non-members fees for collectively bargaining on their rights also. But in its decision, the Supreme Court also said this:

What does this mean when it comes to the negotiation of a contract? The union may not negotiate a collective bargaining agreement that discriminates against non­members, see Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 202–203 (1944), but the union’s bargaining latitude would be little different if state law simply prohibited public employers from entering into agreements that discriminate in that way. And for that matter, it is questionable whether the Constitution would permit a public sector employer to adopt a collective-bargaining agreement that discriminates against nonmembers. See id., at 198–199, 202 (analogizing a private-sector union’s fair representation duty to the duty “the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates”)…

In other words, after Janus, the Supreme Court seems to have thrown its weight behind that line of cases which says that collectively bargained agreements which provide fewer benefits and lesser treatment to non-members are legally dubious. That development in something called the “duty of fair representation” is potentially a significant one, as noted by, among other organizations, the New York State Bar Association – and it’s the law of New York which applies to these minor-league contracts. And that would give an opening to Vlad Jr. to argue that the CBA wouldn’t apply to him at all. The argument is simple: since he isn’t a union member, any agreement which gives him disparately lesser treatment is substantively unenforceable. That is, after all, the crux of the service-time-manipulation argument — that teams leave major-league-ready prospects and players in the minor leagues, where they receive lesser treatment, pay, and benefits, solely to the team’s pecuniary gain. For those players who aren’t union members, Janus provides a vehicle to say that the CBA doesn’t apply because it treats them differently.

There’s another benefit to this argument, too. The minor-league contract, like most contracts these days, has an alternative dispute resolution (“ADR”) clause. Most ADR clauses provide for arbitration or mediation.

As you can see, this one limits the player’s forum to an appeal before the Commissioner. The only problem for the team is that, in Section II(H) of the uniform minor-league contract, the Commissioner is defined as being that person with authority under the CBA. If it specifically cited the Major League Constitution instead, that might be a different result — but it doesn’t. So if the CBA doesn’t apply to Vlad Jr., neither does this ADR clause — and that may very well leave him free to sue in court.

All of this is to say that, for the first time, there is a viable path to court for a minor-league player not on the 40-man roster to sue for service-time manipulation. Which isn’t to say that it would also be an easy path. This is, to my knowledge, an issue of first impression — it hasn’t been tried before. And this is just a way to get through the courthouse door — it doesn’t mean that Vlad Jr., or any other minor leaguer, would win. But Janus opened a crack where before there wasn’t one. And, at least in theory, it might just be a big enough crack for a minor leaguer to slip through with a lawsuit.