It’s January 29th and Michael Bourn is still a free agent. While Scott Boras is known for pulling late-winter rabbits out of his hat, the new free agent compensation system is proving to be a significant roadblock. As we talked about a month ago, the changes to the draft slot allocations have caused a reaction — an overreaction, perhaps — in draft pick valuations, and teams are no longer as willing to sacrifice a first round pick to sign veteran free agents. Combined with questions about how well his defensive skills will hold up as he gets older and a premium asking price, the result has been a depressed market for Bourn’s services, and no obvious resolution to the standoff.

So, the Mets — likely with some influence by Scott Boras — are apparently considering asking Major League Baseball to declare their first round pick protected, even though it falls outside of the top 10 picks, which were the ones declared off limits to compensation in the CBA. And the argument is actually kind of interesting.

As laid out on page 89 of the CBA, compensation for signing a free agent who declined a qualifying offer is as follows:

(c) Signing Club.

i. A Club that signs one Qualified Free Agent who is subject

to compensation shall forfeit its highest available selection in the

next Rule 4 Draft. A Club that signs more than one Qualified Free

Agent subject to compensation shall forfeit its highest remaining

selection in the next Rule 4 Draft for each additional Qualified

Free Agent it signs. Notwithstanding the above, a Club shall not

be required to forfeit a selection in the top ten of the first round

of the Rule 4 Draft, and its highest available selection shall be

deemed its first selection following the tenth selection of the first

round.

That’s pretty clear – only the top 10 picks are protected. The Mets pick 11th. By a strict reading of the CBA, their first round choice is their “highest available selection”, and should be forfeited if they signed a free agent to whom compensation was attached. The letter of the law is pretty clear, and doesn’t leave much room for the Mets appeal to be granted.

However, the Mets may be able to make an argument that appeals to the spirit of the law. They pick 11th despite finishing with the 10th worst record in Major League Baseball last year, but were bumped out of the top 10 by virtue of the Pirates getting the 9th overall pick as compensation for failing to sign Mark Appel last summer. Had the Pirates signed Appel, the Mets would have a protected pick this winter.

So, is the rule designed to promote competitive balance — as MLB has always claimed — or is it simply a tax on player salaries, designed to drive down the market price for the top tier of free agents? If it’s the former, then the Mets can argue that the spirit of the law is to provide non-competitive teams with an advantage in the free agent market, and that they shouldn’t be deprived of that right simply because of the Pirates failure to sign their own first round pick last summer.

However, if the purpose of the draft pick compensation is to serve as a drag on free agent salaries, then it is performing its function exactly as intended, and MLB would have no real incentive to make an exception to the rules to help Bourn and the Mets find common ground in negotiations. MLB might not want to admit that the compensation rules have little to do with competitive balance and are simply a tax, since compensation has always been sold as a method to level the playing field. Making an adjustment to the language in the CBA to protect the first draft choice of the teams with the 10 worst records would allow Bourn’s situation to be resolved, and the player’s association has already indicated that they would support such an amendment.

So, essentially, this will come down to MLB’s interpretation of the intent of the rule. If the owners simply see it as a tax that they want to continue to enforce in order to drive down player salaries, then they have every reason to deny the Mets appeal for an exception. And, the fact that the language of the CBA is so clear about which picks are to be protected means that they can state that they’re simply abiding by the rules that were agreed to last year, giving them a decent enough cover without having to implicitly state that they want to keep the tax in place.

But, if the idea behind the compensation system was actually to promote competitive balance, then perhaps MLB should immunize the Mets from having to sacrifice their first round pick to sign Michael Bourn. Changing the rules in the middle of an off-season doesn’t seem fair, but the change would be narrow enough that no other team would be affected by the change, as the Mets were the only franchise pushed out of the top 10 by the Pirates failure to sign Appel. No other franchise could claim that the agreed upon rules had a material affect on whether or not their first round pick should be considered their “highest available selection”.

My guess is that MLB will rule against the Mets and declare that their pick is still eligible for forfeit, but it might be a more interesting decision that it seems on its face. If Major League Baseball is serious about continuing the charade that draft pick compensation is for the benefit of losing teams, making an exception for the Mets would be a good way to support that claim.