Private Citizen / Achilles the ump
Published 1:42 pm, Thursday, October 28, 2010
As I write this, the World Series starts tomorrow, but of course by the time it's published, two games will have been played. What I don't know as of Tuesday is whether the games will have been televised. This is because Cablevision and Fox TV have been at an impasse, with Fox having exclusive broadcast rights and Cable unwilling to pay Fox's new price for its feed. Cable has asked for binding arbitration, and Fox is having none of it.
Binding arbitration is not a new idea. I discovered this by accident about five years ago, when I was working on an appellate brief in a case involving arbitration, and at the same time reading about the Peloponnesian War for recreation. That was the war between Athens and Sparta over which would be the pre-eminent city-state in ancient Greece. It lasted for decades, and it ended with the destruction of Athens. It took place in the fifth century B.C.E.
There had been a temporary outbreak of peace in 446 B.C.E., when the First Peloponnesian War ended with a treaty between Athens and Sparta. One of its provisions was that future grievances between Athens and Sparta were to be submitted to ... binding arbitration. The author, Professor Donald Kagan, Sterling Professor of Classics and History at Yale University, added that "this appears to be the first attempt in history to maintain a lasting peace through such a device." No kidding. I had not known that binding arbitration was any older than I was, let alone as old as Pericles and Pleistonax.
Curious, and eager to learn more, I wrote him. Amazingly, he replied, and before long I was on the phone with him. He said that besides this treaty, there was a famous case reported by Herodotus involving a dispute between Athens and Megara over the rights to the island of Salamis. The dispute was arbitrated by Sparta. The Spartans ruled for the Athenians, based on their interpretation of a passage in the Iliad that listed the order of ships sailing for Troy: the Salamians were lined up right next to the Athenians, and that was all it took. The Iliad is a work of fiction. But the decisions of arbitrators are usually final, and not subject to appeal.
And, the professor said, there was an even older example in the Iliad itself. You've read the Iliad, of course? I was sure I had, long ago. Well, at the funeral games for Patroclus -- Patroclus was the best friend of one of the main characters, Achilles, who went out to fight Hector and was killed -- there is the world's first recorded horse race, one of the racers accuses another of committing a foul, and he says, let's have Achilles decide who's right, and each of us abide by his decision, whatever it is may be.
And that's how binding arbitration works: the contending parties agree with each other that their dispute will be resolved, once and for all, by a third party they both trust -- Achilles, the Spartans, the American Arbitration Association. Due process of law is a much, much younger concept (say, Magna Carta, in 1215), and none of its safeguards are available. The result may be definite, but it is not always accurate, and there is no appeal.
One situation where binding arbitration is attractive nevertheless is when the alternative is even worse -- when the parties cannot afford the time it would take to resolve their dispute carefully. They need a decision, any decision, yesterday. This was the situation in Connecticut in 1979, when teachers' strikes were a recent and painful memory. Teachers had gone to jail by the busload in New Haven in 1975, and Fairfield narrowly escaped a strike in 1976. When the teachers are in the streets, or in jail, they are not in the classroom, and 180 days of education doesn't happen. The solution was a statute that required binding arbitration, and took away the right to strike. Under the Teacher Negotiation Act, the arbitrator can only choose one side's offer or the other, he can't split the difference. So, if one side offers zero and the other offers ten, the arbitrator can't pick five. This is designed to force the parties to make offers that have a chance of being selected. We can grouse about why the arbitrator picked their six instead of our four, but trust me, it beats a strike.
Which brings us to baseball. Fox is, or at least through Tuesday, was, on strike. This is their right: they didn't agree to give away their broadcasts, they haven't agreed to arbitration (which only works if the parties do agree to arbitrate), and they can't legally be made to agree.
Why is it that you can never find a Spartan when you need one?
James H. Lee shares his "Private Citizen" column regularly with the Fairfield Citizen.