Blown Save? (April 2018)

The Fair Labor Standards Act and The Road to Unionization in Minor League Baseball

I’ll admit it: I had no idea that baseball even needed saving. But then the “Save America’s Pastime Act” made an impromptu appearance on page 1,967 of last week’s omnibus spending bill, and the scales fell from my eyes. Apparently, not only is baseball — average major league franchise value: $1.5 billion — endangered, but saving it demands that thousands of minor league players be submerged well below the poverty line, presumably so that their employers can bank Scrooge McDuck-level profits. Keep it moving folks, nothing to see here.

You’re probably hoping that I’m about skewer baseball’s exasperating antitrust exemption, but that’d be too easy: that miscarriage of stare decisis reads more like droll performance art than actual binding precedent. Actually, SAPA sidesteps the whole antitrust debacle and instead takes a swing at the Fair Labor Standards Act’s crypto-socialist insistence on paying ball players a living wage. Frankly, I’m a little surprised that it’s taken this long. The FLSA was classic New Deal legislation, but its later amendments have turned it into a special interests smorgasbord. Wreath makers, shellfish farmers and every other industry with a sentient lobby has finagled a way to duck their statutory obligation to pay workers $7.25/hour. SAPA, which denies minor leaguers FLSA overtime and minimum wage protections, is just another brick in that wall. Sure, sneaking it in through the back door of a fast-tracked appropriations bill was scuzzy, but that’s the way the game is played. You can’t stop special interests; you can only hope to contain them.

Still, I wonder if baseball overplayed its hand. SAPA is clearly a panicked response to Senne v. The Office of the Commissioner of Baseball, which is slowly winding its way through the 9th Circuit. The suit alleges that minor league players, despite 50+ hour workweeks, are paid less than $8,000 per year in blatant violation of the FLSA. MLB won’t even bother defending these laughable salaries; instead, it’ll argue that it’s not bound to the FLSA provisions either because the players are exempt creative professionals (you know, just like actors, artists and authors), or because the teams are seasonal recreational establishments.

Let’s start with the good news. Senne’s plaintiffs deserve serious props for bypassing MLB’s bulletproof antitrust exemption; too many good lawsuits have already died on that hill. Sadly, though, the case still isn’t anything close to a home run. For one thing, the plaintiffs are tiptoeing across a procedural minefield; the district court already decertified the class once and the appeals bench is threatening to do it again. The substantive side is no bed of roses either, especially since, in the decertification ruling, the district judge appeared amenable to both the creative professionals and recreational establishments defenses. And, don’t forget: even if the players somehow snatch victory from the jaws of district court defeat, a lengthy series of well-funded MLB appeals surely awaits. I’m not saying they should call it quits — you’ve still got to run out every ground ball — but realistically, recovery is a long shot.

 Yet MLB still went out of its way to sic its lobbyists on Congress and push through an amendment specifically tailored to kneecap Senne. It worked — the next time someone has the audacity to confront baseball with an FLSA complaint, it’ll be summarily dismissed. But where does that leave the players (besides impoverished)? Until now, a minor leaguer whose sense of justice was besmirched by his substandard pay could safely vent his anger by joining what would ultimately prove to be a quixotic class action. From the league’s standpoint, it’s basically jurisprudential arbitrage: all benefit, no risk. The litigating players might genuinely believe that they’re fighting the power, but MLB’s bottom line isn’t really threatened. It’s as if the league used its retainer fees to build a virtual rage room for its underpaid players. The setup was cynical, exploitative, and accidentally brilliant.

And now it’s gone. With litigation off the table, the vast majority of players will surely opt to tuck tail, stay on their grind and cling to the dream of one day making it to The Show. But the rest could be inspired to instead go after labor’s Holy Grail: unionization.

Unionizing would be an unmitigated boon for the players — the average major leaguer is a multimillionaire, thanks largely to their union — and not nearly the catastrophe that the league imagines. A minor league union would, at very least, steer baseball away from the moral turpitude of exploiting thousands of employees and towards a future where respect for basic human rights is a thing. Incredibly, and entirely unintentionally, SAPA pushes us one step closer to that reality. Maybe it’ll save America’s pastime, after all.