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The Cost Of Collusion

If it smells like collusion, and it looks like collusion, minus it not tasting like collusion, it probably is collusion.  At least that is what Jeff Borris, Barry Bonds’ agent, has been preaching for a while now.  And it finally seems like the MLBPA is going to take up Barry’s cause.  Well…eventually.  While the MLBPA claims that it has found evidence of collusion among the owners in an attempt to ostracize Bonds from professional baseball, the union has agreed to delay the filing of any grievance for the time being.  Once, or if, a grievance is filed and if owners are found to have colluded in preventing Bonds’ signing with a team in 2008, then the CBA lays out the damages.

The first two paragraphs of Article XX Section E of the 2007-2011 MLB Basic Agreement reads as follows:

(1) The utilization or non-utilization of rights under Article XIX(A)(2) and Article XX is an individual matter to be determined solely by each Player and each Club for his or its own benefit. Players shall not act in concert with other Players and Clubs shall not act in concert with other Clubs.

(2) Upon any finding of a violation of Section E(1) of this Article XX by two or more Clubs, any injured Player (or Players) shall be entitled to recover in monetary damages three (3) times the lost baseball income, he (or they) would have had but for the violation. Such lost baseball income shall be limited to lost salary and other lost contractual terms, including lost additional contract years, lost signing bonuses, lost trade restriction provisions, lost option buyout provisions, and lost incentive bonuses (e.g., performance, awards, attendance and weight bonuses). Damages (and fees and interest) may be recovered only from the Clubs found to have violated Section E(1) of this Article XX.

So but for the violation, what would have Bonds made this past season?  It depends on what an arbitrator would find to be the proper amount.  Bonds made more than $15 million in his final season with the Giants.  Do you use that figure and multiply it by three, or do you use the minimum major league salary that Borris was pushing for ($390,000), which no team would offer to pay?

By Darren Heitner

Darren Adam Heitner, Esq., is a preeminent sports attorney and the founder of Heitner Legal, P.L.L.C., a Fort Lauderdale-based law firm specializing in sports law, contract negotiations, intellectual property, and arbitration. He earned his Juris Doctor from the University of Florida Levin College of Law in 2010 and a Bachelor of Arts in Political Science, magna cum laude, from the University of Florida in 2007, where he was named Valedictorian of the College of Liberal Arts and Sciences. Admitted to practice in the state bars of Florida, New York, and the District of Columbia, as well as multiple federal courts, Darren also serves as a certified arbitrator with the American Arbitration Association.

As an adjunct professor, Darren imparts his expertise through teaching Sports Law at the University of Florida Levin College of Law and Name, Image, and Likeness (NIL) at the University of Miami School of Law in the Entertainment, Arts, and Sports Law LL.M. program. His scholarly contributions include authoring several books published by the American Bar Association, such as How to Play the Game: What Every Sports Attorney Needs to Know, and numerous articles in prominent publications like Forbes, Inc. Magazine, and Above the Law. His thought leadership in NIL has earned him recognition as one of the foremost experts by The Wall Street Journal, USA TODAY, and On3, and he has been lauded as a “power player in NIL deals” by Action Network and a “top sports trademark attorney” by Sportico.

Darren’s passion for sports law led him to establish Sports Agent Blog on December 31, 2005, initially titled “I Want To Be A Sports Agent.” The platform, created as a New Year’s resolution, has grown into a cornerstone of the sports agency community, offering in-depth analysis of industry trends, legal disputes, and agent-player dynamics. His commitment to the field is further evidenced by his representation of numerous athletes and sports agents, as well as his prior role as an Adjunct Professor at Indiana University Bloomington, where he developed and taught a course on Sport Agency Management from 2011 to 2014.

Darren’s contributions have been recognized with prestigious honors, including the University of Florida’s 40 Under 40 Award, the University of Florida Levin College of Law’s Outstanding Young Alumnus Award, and designation as the best lawyer in Fort Lauderdale by Fort Lauderdale Magazine. He remains an active voice in the sports law community, sharing insights through his weekly NIL newsletter and his X posts, engaging a broad audience on legal developments in sports.

2 replies on “The Cost Of Collusion”

It’s at least $30 million, because under normal circumstances he would have never reduced his demands and there would have been heavy incentive bonuses in any contract he signed. He made about $19 mill last season because of incentives.

Paragraph (2) looks like the fees could fall on only 2 clubs. That could be very expensive for someone.

The lost incentive bonuses seems too speculative to be determined, doesn’t it? Surely, Bonds would have incentive bonuses in his non-existent K, but whether those incentives would be reached by Bonds is questionable at best. Thoughts?

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