As each day passes, the electronic sign-stealing scandal in Major League Baseball proves more irritating to those impacted by it. This is especially true for players, who are all members of the same union, the Major League Baseball Players Association. They have become increasingly willing to publicly condemn fellow union members who played for the Astros in 2017 and who engaged in a form of cheating that has elicited widespread disgust.

Astros players engineered a plot that mixed modern technology with crude sounds. Players and team officials covertly used a camera in the center field area of Houston’s Minute Maid Park. The camera recorded opposing teams’ catcher signals to the pitcher. It then transmitted images over to the Astros’ replay room. The images revealed predictive patterns as to the intended pitch type. The patterns were then shared with those in the Astros dugout and conveyed to batters through coded bangs on a trash can. The plot was so effective that the Astros won the 2017 World Series.

Revisiting the curious logic of Rob Manfred’s decision to not punish guilty players

Despite Astros players’ guilt in what MLB has termed a mostly “player-driven” scheme, commissioner Rob Manfred declined to punish any of the guilty players. Manfred instead gave them immunity in exchange for their cooperation and willingness to share information.

This was surprising on at least four levels.

First, the players were already obligated under the collective bargaining agreement to “provide reasonable cooperation with an investigation, including but not limited to producing documents and information.” It’s true that players could have refused to cooperate and that, as a private entity, MLB had no power to subpoena or compel disclosure. However, Manfred could have punished players for failing to satisfy their contractual obligation to cooperate. In other words, it wasn’t as if Manfred lacked leverage.

Second, while Astros players could have challenged suspensions by filing grievances, MLB generally doesn’t worry about the risk of grievances to such a degree that it declines to punish rule-breaking players. MLB might have prevailed in any grievances. The league would have needed to show the punishments were reasonable, reasoned and in accordance with past practices. Under the CBA, Manfred could have punished players for refusing to cooperate in a league investigation. Alternatively, if MLB obtained sufficient evidence to show that cheating had occurred, the CBA would have permitted Manfred to punish players for “conduct detrimental or prejudicial to baseball.” Furthermore, the uniform player contract compels players to “conform to high standards of personal conduct, fair play and good sportsmanship.” There’s no shortage of language that could be construed to cover cheating. Also, while players might have argued there was insufficient notice that electronic sign-stealing during the 2017 season would trigger player punishments, MLB could counter by stressing 1) the “conduct detrimental” language in the CBA authorizes such punishments; 2) by fining the Boston Red Sox and New York Yankees for their electronic sign stealing in 2017, MLB made clear such practices were unauthorized.

It’s also worth playing out the grievance scenario. Assume that MLB played hardball (no pun intended) and either didn’t gain enough implicating evidence from the players or the “absence of notice” defense noted above persuaded the arbitrators. Then assume that MLB loses the grievances. The league would have still made a good faith effort to hold players accountable, something that the public and fans—who knew from journalists’ investigative reporting that cheating had likely occurred—probably would have admired. In that scenario MLB might have also more seriously considered alternative punishments, such as stripping the Astros of the 2017 World Series.

Third, MLB offered what might be regarded as an excessive reward to the players for admitting to wrongdoing. The players were assured if that if they revealed what happened, they’d avoid punishment altogether. This was an important inflection point in MLB’s investigation and likely an unnecessary step. The players essentially pleaded guilty and walked away scot-free. A guilty plea normally means a reduced punishment, not no punishment.

Fourth, in law, prosecutors normally grant immunity to lower-level members of a conspiracy with the expectation that they’ll implicate those higher up on the food chain. Here, the players’ painted themselves as the main culprits. Yet, counterintuitively, they escaped any and all repercussions.

Only two former Astros officials—general manager Jeff Luhnow and manager AJ Hinch—received MLB punishments. Former bench coach Alex Cora will be punished upon the completion of MLB's investigation into the Red Sox. Houston was also fined and stripped of draft picks.

The lack of player punishments has ignited player protests

The absence of player accountability has sparked heated remarks by rule-abiding MLB players. They believe that cheating players ought to have been held responsible by Manfred and that they got away with crimes of the sport.

For instance, Los Angeles Angels outfielder Mike Trout says that he has “lost respect” for Astros batters. The best player in baseball, Trout can’t hold in high regard any fellow sluggers who know which pitches are coming. They are playing a different, and far easier, game.

Yankees closer Aroldis Chapman has also weighed in with a critical voice. He is one of several players to publicly suggest that Astros players were wearing electronic buzzers on their jerseys in 2019. Chapman stresses how “disappointed” he was by the Astros’ misbehavior. He also laments how “a lot of people have suffered” because of the cheating.

More explosively, Los Angeles Dodgers outfielder Cody Bellinger has lambasted Manfred—MLB’s chief management officer—for doing something that arguably advanced the interests of Bellinger’s union. By granting Astros players immunity as an inducement to reveal their wrongdoing, Manfred effectively excused the players of committing the underlying wrongs. From one lens, this was a “win” for the MLBPA. Unions normally try to minimize opportunities for management to severely punish employees. Here, the employees weren’t punished at all.

Yet Bellinger can’t believe that Manfred would offer his fellow union members such a break. Bellinger stresses that “these guys were cheating for three years.” He further denounces Astros second baseman José Altuve, saying he “stole” the 2017 American League MVP award from Yankees outfielder Aaron Judge. Bellinger likewise insists that Altuve and his teammates—who defeated in the Dodgers in the 2017 World Series—“stole the ring” from Bellinger and his teammates.

As player-on-player tensions escalate, Astros manager Dusty Baker has publicly pleaded for league protection from so-called “premeditated retaliation.” This feared retaliation refers to opposing teams’ pitchers throwing beanballs and even head-hunting Astros batters. In response, Manfred has stressed that such dangerous moves would lead to severe sanctions. If only Manfred had punished the guilty players, perhaps the desire of rule-abiding players to exact revenge would be muted.

A union divided

As spring training begins, players are rebuking each other in national media interviews and using social media and other public forums to discredit and ridicule one another’s achievements. They are also lashing out against the commissioner for being too lenient on fellow players. Meanwhile, the commissioner has issued a protective order so that vengeance-seeking players don’t try to imperil the health of other players.

This is a very strange state of affairs for the MLBPA.

Historically, the MLBPA has been the most influential and unified players’ union in American sports. This is, after all, the same MLBPA that has gone on strike five times over the last five decades, including a 232-day strike between 1994 and 1995. And it’s the same MLBPA that fought hard for the right to free agency, all the way up to the U.S. Supreme Court in 1972 and in subsequent arbitration hearings. It also stood together in solidarity when players were accused of using steroids and other performance-enhancing drugs in the 1990s and 2000s.

This is, at its core, a union that deeply values loyalty and communicating via a shared voice.

That legacy could be wilting under the bright lights of a sign-stealing scandal that delegitimizes the 2017 and 2018 seasons. And the timing couldn’t be worse for the MLBPA. It needs to negotiate a new CBA with MLB before the current one expires Dec. 1, 2021. The negotiations will take place over the next year. Under the leadership of executive director Tony Clark, the MLBPA must have a united front or it will be disadvantaged at the bargaining table.

Unpacking the current role of the MLBPA in the controversy and relevant labor law principles

There are two related questions that the MLBPA must answer: (1) what, if anything, should it do regarding the scandal?; and (2) what is in the best interests of the union’s membership: protecting players who cheated or vindicating those who suffered because of the cheating?

There aren’t obvious answers to these questions. As a union, the MLBPA must adhere to the National Labor Relations Act (NLRA). The NLRA imposes a duty of fair representation on a union to act fairly and impartially with respect to all of its members. If an employee believes that his or her union has violated this duty, the employee can file an unfair labor practice charge with the National Labor Relations Board. The NLRB, which is a federal agency that enforces labor law, would then investigate such a charge. That dynamic could surface here if an MLB player credibly believed that the MLBPA was not treating him fairly relative to other players.

As detailed by Indiana University Mauer School of Law professor Deborah Widiss, unions are also required to maximize benefits for the collective membership. This pursuit can mean that certain members are disadvantaged by a collective gain. For instance, if the MLBPA agreed to add the designated hitter to National League games, players as a whole might gain financially. Fans, in that scenario, could become more interested in watching National League games that feature more offense. That, in turn, could lead to higher attendance and superior TV ratings. Also, a DH in the National League would create new jobs for players who are skilled batters but who are defensively challenged. However, certain players—particularly pitchers who are relatively good at batting—might lose out if the National League adopts the DH.

Unions also tend to pursue certain types of strategies in their relationship with management. One common strategy is to limit opportunities for employers to fine, suspend or fire employees. To the extent an employer intends to punish an employee, a union typically demands that there be procedural checks. A common check is for an arbitrator or a panel of arbitrators to review a significant punishment. Alternatively, management might be required to punish in accordance with the concept of “progressive discipline.” Progressive discipline captures the idea that an employee ought to receive a lighter punishment for a first offense and only more onerous punishments for subsequent offenses.

As a related consideration, it might have undermined MLBPA’s bargaining leverage with MLB if Clark—the head of the union—had encouraged Manfred—the head of management—to punish MLBPA members. While some players would have been glad to see the cheaters held accountable, those punishments would have set new precedent for player punishments. Manfred could have used that precedent going forward.

In addition, if the MLBPA felt that Manfred lacked the authority to punish players suspected of cheating—as I note above, I believe Manfred had this authority provided there was sufficient evidence—it would have arguably permitted Manfred to punish its members beyond the scope of the CBA. In his capacity as head of the union, Clark is charged with ensuring that Manfred only uses powers contained in the CBA. A CBA reflects labor and management negotiating and trading off terms. Unions tend to do better if management must offer improved workplace benefits in exchange for obtaining new powers. Unions tend to do worse if management unilaterally obtains powers without giving up anything in return.

Figuring out MLBPA’s next moves

It appears the MLBPA’s current strategy is to collaborate with MLB on crafting rules that would restrict the in-game use of video. The logic of those restrictions would be to reduce opportunities for players to electronically cheat. There would be downsides. Batters who regularly review video of their at-bats would be disadvantaged. Such review isn’t cheating, either. Just the opposite, in fact, it reflects learning, effort and preparation. Talks of curtailing opportunities for in-game video review have drawn player criticisms. Red Sox designated hitter J.D. Martinez, for instance, describes the idea as “a little ridiculous.”

Some have wondered if the MLBPA could punish the players who cheated. Such a move would be extremely unusual and possibly impossible in this situation. As noted above, unions have an interest in safeguarding employees from punishments, not expanding the ways in which employees can be punished. In addition, any such authority would difficult to adopt. The authority could not contradict or vary a relevant term contained in the CBA. If it did, a punished player could file an unfair labor practice charge with the NLRB. Implementing such authority might also be difficult. MLBPA regulations governing player agents compel arbitration for player-player agent disputes. Perhaps such a system could be used for player-player disputes over cheating. However, as noted above, it would hard to execute. To the extent unions “punish” members, it’s usually related to not paying dues or showing up for work while the union is on strike. To punish for a workplace matter seems unlikely.

There is one silver lining for Clark and the MLBPA. The current villain of the sign-stealing controversy is the main person on the opposite side of the negotiation table. Rob Manfred’s public comments about his handling of the punishments—or the lack of punishments—have only added fuel to the fire. He recently mocked a journalist for his investigative reporting on the scandal (in other words, for doing his job). He also strangely devalued the World Series trophy, the Commissioner’s Trophy, as merely a “piece of metal.” (Manfred apologized for this remark at a press conference on Thursday.)

But Clark and the MLBPA should beware: the longer the controversy plays out, the more that blame will be spread. And if players remain angry over what happened in 2017, the MLBPA may be headed for long and acrimonious meetings as a difficult CBA negotiation nears.

Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.