(concurring).
I concur in the majority’s statement of the facts and applicable law. However, because I believe this is a very close ease— closer than perceived by the District Court and than expressed by the majority of this court—I do not feel comfortable with the analysis and conclusions drawn in parts IV and V of the majority opinion.
Though Article XV of the 1973 agreement cannot be read as an express provision clearly excluding the instant grievances from arbitration, its purpose was quite visibly to set aside the parties’ ongoing disputes concerning the legality of and the concept of perpetual career-long control over a player by his first club and its assigns. That article provides:
ARTICLE XV—Reserve System
Except as adjusted or modified hereby, this Agreement does not deal with the reserve system. The Parties have differing views as to the legality and as to the merits of such system as presently constituted. This Agreement shall in no way prejudice the position or legal rights of the Parties or of any Player regarding the reserve system.
During the term of this Agreement neither of the Parties will resort to any form of concerted action with respect to the issue of the reserve system, and there shall be no obligation to negotiate with respect to the reserve system.
Further, the fact that other provisions of the 1973 agreement incorporate by reference the very provisions in the Uniform Players Contract, Regulations and Major League Rules that comprise the reserve system does not itself render Article XV ambiguous. The mere fact of incorporation of one document by another does not necessarily give the parties (or an arbitrator), acting *633pursuant to the incorporating agreement, the power to alter the agreements incorporated.
The majority’s analysis of the background of the 1973 agreement begins with the conclusion that “[t]he 1968 agreement clearly permitted the arbitration of grievances relating to the reserve system.” Majority opinion, part IV, paragraph (a). This assumption in turn purportedly provides the basis for concluding that it “cannot be said that the Club Owners never consented to the arbitration of such grievances.” Id. I believe this suggestion commences the analysis well beyond the starting point and carries it beyond the appropriate conclusion.
In Article VIII of the 1968 agreement the parties agreed to “review jointly” the matter of “possible alternatives to the reserve clause as now constituted” and to disavow any obligation “to bargain or seek agreement [on the matter] * * * during the term of” the 1968 agreement. This clearly indicates to me that the parties themselves did not think the issues of what constituted the reserve system, and what its proper reach and effect should be, were arbitrable. By agreeing to jointly review “the possible alternatives to the reserve clause as now constituted,” the parties considered this issue as one for future review rather than arbitration. If in fact the parties were of the view that the steel bindings of the reserve system could be terminated with respect to any given player by merely playing out an option for one year, the Players Association should have had no further concern about the previous far-reaching consequences of Reserving a player to his original team for his entire career.
In my view, the issue thus becomes whether this factual background, coupled with the fact that continued negotiations on the reserve system failed and were not carried forward into the 1970 and 1973 agreements, and the presence of the somewhat ambiguous Articles XIV and XV, respectively, in the 1970 and 1973 agreements, together present “the most forceful evidence of a purpose to exclude * * * from arbitration” disputes on the basic reserve system as the parties obviously understood it to exist in the 1973 agreement and other agreements incorporated therein by reference. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 585, 80 S.Ct. 1347, 1354, 4 L.Ed.2d 1409, 1419 (1960). Up to that date no player had slipped, or even intimated that he could slip, the bindings of the reserve system by merely playing out a one year option. The reserve system was devised over many years by club and league rules and sanctioned by the players’ contract.
The preponderance of the evidence as to the purpose of Article XV, considered upon the record as a whole, favors the Club Owners and indicates a conspicuous mutual intent to exclude matters such as the Mes-sersmith and McNally grievances from the grievance and arbitration procedures established in Article X. However, the Club Owners’ evidence does not appear sufficient to satisfy the enhanced standard of proof enunciated in Warrior & Gulf, supra, and the balance of the Steelworkers trilogy. Though the purpose of Article XV was to express the parties’ agreement to set aside all disputes and disagreements concerning the reserve system in order to commence the 1973 baseball season, the evidence presented by the Club Owners disavowing any agreement to arbitrate the instant disputes and expressing the parties’ mutual purpose to exclude the instant grievances from the procedures of Article X is not sufficiently forceful to deny the arbitration panel jurisdiction.
It is surprising and unfortunate that what reasonable and highly educated men might be expected to do and obviously did in the instant case was not forcefully expressed in their collective bargaining agreement. The pitfalls of collective bargaining are unmarked and many companies and industries have found themselves facing arbitration in situations they had no idea could end up in the arbitration domain. In adopting the presumption of arbitrability in the name of and under the banner of industrial peace, the courts have made it difficult to avoid arbitration on any topic. Almost any *634word, phrase, or paragraph of a contract is susceptible of being viewed as containing ambiguities, and because our language is capable of different connotations, a case can be made for almost any complaint falling into the arbitration orbit, when arbitration is provided in the collective bargaining agreement.
The courts should not merely pay lip service to the principle that arbitration is a matter of agreement and that only those matters which the parties have agreed to submit to arbitration should be arbitrated. As suggested by the Second Circuit, the rule of the Steelworkers trilogy was adopted by the Supreme Court for a specific purpose:
[To] cut through time consuming court proceedings and red tape, and set up as a matter of federal law a simple procedure, peculiarly suitable for the prompt disposition of miscellaneous disputes arising under collective bargaining agreements. [Emphasis added.]
Procter & Gamble Independent Union v. Procter & Gamble Manufacturing Co., 298 F.2d 644, 646 (2d Cir. 1962); see United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 582, 80 S.Ct. at 1352, 4 L.Ed.2d at 1417.
However, in close cases such as the instant case involving disputes substantially affecting what is viewed as a basic structural component of the industry — the reserve system — we should be cautious not to merely mechanically apply the “presumption of ar-bitrability” as a means to avoid the task of carefully and realistically assessing the parties’ actual agreement.
It thus appears to me that the Club Owners are stuck with the “presumption of arbi-trability” and are unable to supply “the most forceful evidence of a purpose to exclude * * * from arbitration” these disputes on the reserve system, particularly in view of the wording of Article X(A)(l)(a), excluding certain issues from the grievance procedure without listing the reserve system as one of the exclusions. I therefore concur in the decision reached by the majority.