By Aron Solomon
I remember watching Garrett Broshuis play in the Minor Leagues very early in his career for the San Jose Giants. He always had a lot of heart, leaving it all out there on the field, as the most committed ball players do day in and day out.
That same passion for the game still burns within him today, but now as a lawyer. As a partner at a St. Louis law firm, Broshuis focuses on complex litigation, often involving athletes.
As part of his giving back to the game, the law school valedictorian co-founded the organization Advocates for Minor Leaguers, which is led by executive director Harry Marino, also an attorney. The organization self-describes as “a coalition of current and former players, wives and partners, families and fans rallying behind a common mission: Providing a voice for Minor League players and improving working conditions.”
While those working conditions are historically not even close to what they should have been, the pandemic shook minor league baseball to its very core. That minor leaguers either went without pay or relied on the goodwill of their Medici – the team owners and owners of the parent MLB team – to go above and beyond the very little that was required was a national travesty. With several major-leaguers generously helping out their minor league brethren, instead of a functional process to get through the pandemic we had an informal GoFundMe. In fact, there really was a GoFundMe launched in 2019 to help Minor League players afford the basic necessities of life.
Advocates for Minor Leaguers is trying to change the game through, among other initiatives, their Fight for $15K campaign, in which they are advocating for a $15,000 minimum salary for minor league baseball players.
For those of you thinking “Wait. What?” the players feel your pain.
As this non-profit advocacy group points out in their campaign materials:
“MLB organizations collectively take in nearly $11 billion per year, yet they pay their Minor League players poverty-level wages. Most Minor Leaguers earn less than $7,500 per year and none are paid for their work during spring training. Players are forced to cram into small apartments or even skip meals to stay afloat.”
As a point of contrast, the average annual salary of a Major League Baseball player today is $4.1M, twice what it was two decades ago.
Yes, there are players, even future Cooperstown enshrinees, who are paid a fraction of that, but not only are MLB salaries robust, they are guaranteed, unlike the vast majority of NFL contracts. Aside from not needing to shed a tear for Mr. Guerrero Jr., who, if he stays healthy, may be heading for the largest payday in Major League Baseball history, MLB players as a whole also have twice the longevity in their league as NFL players do. So, comparatively, baseball players are doing fine and, unlike most Minor-Leaguers, they were paid a prorated amount of their salary during the COVID-abridged season.
Scott Kessler, an attorney who specializes in representing workers, observes:
“No matter how large or small, it’s hard to think of any business in the nation with such a wage and working condition disparity between their workers as Major League Baseball and Minor League Baseball. It’s pretty shocking when you dive into the numbers.”
I had an in-depth dialogue over the course of a week with Harry Marino, the Executive Director of Advocates for Minor Leaguers, who provided invaluable insight into the issues in play here. The first is Major League Baseball’s antitrust exemption, which has now, unbelievably, survived a century..
The MLB antitrust exemption was the product of a 1922 Supreme Court holding that the business of Major League Baseball did not constitute “interstate commerce,” thus making it exempt from the Sherman Act, which prevents businesses from conspiring with one another in an effort to thwart competition.
Marino observes that the removal of Major League Baseball’s antitrust exemption would immediately change the dimensions of the playing field:
“This would stop MLB teams from colluding on Minor League contracts and would lead to an open market for the services of Minor League players. Because of the antitrust exemption, MLB teams are legally permitted to impose a Minor League Uniform Player Contract (UPC) on players. The UPC ties players to the team that drafts them for 7 seasons. This year, the standard salary at each level of the Minors is somewhere between $400 and $700 per week. While the UPC requires players to perform services 12 months per year, it dictates that players only receive a salary 6 months per year (and in some cases even less often).”
It is worth noting that some Republicans threatened MLB’s antitrust exemption after the League moved the All-Star Game from Atlanta in response to Georgia’s voter suppression laws, but that seems to have been a tempest in a teapot, with absolutely no concrete movement after what was clearly a hollow threat.
Yet just this Monday, in deciding NCAA v. Alston, the Supreme Court, in a 9-0 decision, held that the NCAA violated federal antitrust laws by limiting the amount of education-based compensation available to college athletes. Advocates for Minor Leaguers had filed an amicus brief in Alston, urging the Court not to exempt the NCAA from antitrust scrutiny, pointing out the parallels between the treatment of NCAA athletes and the treatment of Minor League baseball players.
However, according to Marino, two passages from Alston are clear indicators that this Court is ready to revisit baseball’s antitrust exemption, which could breathe its ultimate breath as early as the October 2021 Supreme Court term if a worthy case is presented and accepted for review. There is honestly no way to overemphasize the importance of the Court’s language when viewed through a legal lens:
To be sure, this Court once dallied with something that looks a bit like an antitrust exemption for professional baseball. In Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs,259 U. S. 200 (1922), the Court reasoned that “exhibitions” of “base ball” did not implicate the Sherman Act because they did not involve interstate trade or commerce—even though teams regularly crossed state lines (as they do today) to make money and enhance their commercial success. Id., at 208–209. But this Court has refused to extend Federal Baseball’s reasoning to other sports leagues—and has even acknowledged
criticisms of the decision as “‘unrealistic’” and “‘inconsistent’” and “aberration[al].” Flood v. Kuhn, 407 U. S. 258, 282 (1972) (quoting Radovich v. National Football League, 352 U. S. 445, 452 (1957)); see also Brief for Advocates for Minor Leaguers as Amicus Curiae 5, n. 3 (gathering criticisms). Opinion at 23.
and
Whether an antitrust violation exists necessarily depends on a careful analysis of market realities. . . . If those market realities change, so may the legal analysis. Opinion at 21.
As Marino pointed out in a press release sent hours after the decision, the Court’s language in this case is critically important:
“First, the Court talked about it in the past tense. Second, the Court refused to even call it an exemption. And third, the Court clarified its willingness to overturn an antitrust ruling if the facts on the ground have changed. In the nearly 50 years since the Supreme Court last considered baseball’s antitrust exemption, the value of the average MLB franchise has increased by orders of magnitude, while the average Minor League salary has failed to even keep pace with inflation. Based on that fact alone, no reader of today’s opinion could have confidence that MLB’s treatment of Minor Leaguers will remain immune from antitrust scrutiny for long.”
So with remarkable forward motion this week on the antitrust exemption, there remains a relevant act that far fewer people have heard of – the Save America’s Pastime Act, which essentially rewrites federal law as a necessary accompaniment to the antitrust exemption.
Marino argues that this act should absolutely be repealed:
“That act exempts Minor League players from the federal minimum wage and overtime standards. The standalone bill died in the House in 2016 but was brought back in 2018 and snuck into an omnibus spending bill, under pressure from MLB and Minor League owners.”
The Save America’s Pastime Act came about in response to a 2016 federal class-action lawsuit. It was alleged that Major League Baseball and all of its franchises owed their players overtime pay for extra hours during the season as well as pay for off-season training. In 2016, the proposed act was met with public outrage, so it never made it past the House of Representatives. As Marino pointed out, in 2018, it was essentially sneaked in on page 1,967 of a 2,232-page omnibus spending bill that needed to pass to keep the government open.
The Save America’s Pastime Act is now the law of the land in our nation, leaving minor league players unprotected by the most basic minimum wage and overtime laws. Yet it would be folly to even imagine that the Save America’s Pastime Act would survive legal scrutiny if baseball’s antitrust exemption is struck down. If the former is one Jenga piece in the tower, the latter is the entire rest of the tower. There’s just no way for the act to survive without the antitrust exemption.
Digressing from legal analysis for a moment, what makes all of this so critically important is exactly what makes minor legal baseball equally important – community. Baseball America reached out to fans right after the 2020 season was cancelled because of the global pandemic. They asked what Minor League Baseball means to people, and the answers were heartwarming. While the major leagues have a lot of fans, especially in large media markets, it is not an overstatement to say that the minor leagues ARE America. These leagues, from rookie ball to AAA, geographically touch so much more of the nation than Major League Baseball, and they provide high-value, wholesome family entertainment at an honest price point – still around $7 for a single-A ticket.
But the entire business of Minor League baseball is built upon the labor of the talented athletes who play the game. Without them, there is no minor league baseball and there is no major league baseball. For those less familiar with the game, each Major League Baseball team has minor league affiliate teams. The Cincinnati Reds, for instance, have six Minor League Baseball affiliates across the United States and in the Dominican Republic. Four teams are independently owned, while the Arizona League Reds and Dominican Summer League Reds are owned by the Major League club. These teams are the talent pipeline for Major League Baseball’s Cincinnati Reds and without them, there would be no team.
But while the value of major league labor is widely-recognized today, minor-leaguers face a classic Hobson’s Choice in which both action and inaction are seemingly offered yet the only practical choice is to have their labor exploited by MLB teams, working in concert with lawmakers who safeguard the legality of these egregious and vexatious practices.
Marino explains why this remind the case today:
“While Minor League players across the country see that they’re being exploited, most are afraid that coming forward and speaking out will lead to swift retribution from their Major League organization. These players have made a significant investment, in terms of both time and resources, in the hopes of one day making the Major Leagues. They are understandably unwilling to risk their shot at the big leagues by isolating themselves as the lone player who speaks up about what’s really going on. One of the main goals of Advocates for Minor Leaguers is to act as an intermediary between Minor League players and their MLB teams. By working out some of the issues facing Minor Leaguers, we believe that we can improve the game of baseball for all involved.”
So why don’t Minor League baseball players just form a union? Isn’t that what unions do – fight for fair wages and better working conditions? Yes, but it’s neither practical nor realistic for minor league baseball players to form a union today. Those who do – especially those who would play a leading role in its creation – would be jeopardizing their careers through potential retaliation. There’s no way to overstate the target that would be on the backs of Minor League Baseball players who play a leadership role in even trying to form a union.
Until that happens, Marino proposes this workable solution:
“First, all MLB teams could provide their Minor Leaguers with housing and three meals per day during the season. The search for adequate housing and nutrition during the season is a constant burden for Minor League players. Taking those concerns off their plate would not only improve players’ lives considerably, it would also yield significant player development benefits. You don’t create a Major League player by forcing him to eat late night fast food or spend sleepless nights on an air mattress.
Second, all MLB teams could pay Minor Leaguers their salary 12 months per year. When players attend Spring Training or winter workouts in order to improve their skills, they are providing a contractual service to the team that employs them. Not only is it unfair and illogical for this work to be unpaid, but it also disincentivizes players from doing this work. MLB teams would be better off if their future Major Leaguers could spend all year focused on improving their skills, rather than squeezing in workouts between the odd jobs they work to make ends meet.”
It can’t be overstated that this power imbalance is both a practical and legal one. Marino shared that MLB teams have demonstrated a willingness to change their course of conduct when players have used the group to shine a light on particular instances of mistreatment. That only strengthened the view that there is room for Advocates for Minor Leaguers to work together with MLB teams to improve the situation for Minor Leaguers across the board.
Michael Epstein, a New Jersey lawyer, argues with Marino that it wouldn’t be difficult to institute a contractual living wage within Minor-League contracts:
“While Minor League contracts are more complicated than most of us would imagine they are,
every Minor League contract could contain a very simple clause acknowledging a agreed-upon league-wide minimum annual salary. If the goal of the players and their advocates is currently $15,000 per year, that can be a contractual term, along with annual percentage increases to account for cost of living.”
Just as I remember watching Broshuis play, I remember more recently watching Bryce Harper play, in both single-A Hagerstown (the team is sadly no more, leaving behind the classic century-old Municipal Stadium and Rita’s root beer ices) and AA Harrisburg, Harper, who will earn $27.5 million this year, could have easily been one of the minor-leaguers who just never made it. Even the brightest young stars deal with a history of injuries, playing behind exceptionally good players in their position within the MLB and farm team organizations, or simply run into a personal talent plateau that they can’t overcome. And just a reminder to all of us – even if Harper didn’t make it to the majors, he would have made millions off his signing bonus and is truly exceptional in that respect.
So while the Bryce Harpers of the world do very well for themselves, it’s time that we pay a lot more attention to the hearts, minds, and backs upon which Major League Baseball is truly built. It’s now time for a long-overdue legal reckoning for the game. For the first time in a very long time, this week’s Supreme Court decision in NCAA v. Alston shines an unintentional yet very hopeful light at the end of the tunnel for Minor League baseball players to earn a living wage and to have their labor fairly valued.
