University of Colorado Law Review University of Colorado Law Review
Volume 95 Issue 4 Article 6
Fall 2024
It’s Past Time: Unionization and Self-Determination in Minor It’s Past Time: Unionization and Self-Determination in Minor
League Baseball League Baseball
Chris Rowley
Follow this and additional works at: https://scholar.law.colorado.edu/lawreview
Part of the Labor and Employment Law Commons
Recommended Citation Recommended Citation
Chris Rowley,
It’s Past Time: Unionization and Self-Determination in Minor League Baseball
, 95 U. COLO. L.
REV. 1157 (2024).
Available at: https://scholar.law.colorado.edu/lawreview/vol95/iss4/6
This Comment is brought to you for free and open access by the Law School Journals at Colorado Law Scholarly
Commons. It has been accepted for inclusion in University of Colorado Law Review by an authorized editor of
Colorado Law Scholarly Commons. For more information, please contact [email protected].
IT’S PAST TIME: UNIONIZATION AND
SELF-DETERMINISM IN MINOR LEAGUE
BASEBALL
Chris Rowley
*
For more than a century, labor disputes have tormented the
relationship between American professional baseball players
and management. Although Major League Baseball players
unionized in the 1960s, disagreements over workplace
conditions and ever-growing profit allocations endured for
decades. The first thirty years of collective bargaining
between players and League post-unionization fostered
notable improvements in players’ labor conditions. However,
those years were also plagued by acrimonious negotiations,
grievances, lawsuits, lockouts, strikes, and eventually, the
cancellation of the 1994 World Series.
The story in Minor League Baseball is altogether different.
Its players, despite their close nexus with the Major League
game, did not unionize alongside their Major League
counterparts sixty years ago, and the workforce has suffered
the consequences. Further frustrating MiLB labor progress is
the sport’s long-standing exemption from antitrust law and
its exclusion from minimum wage and overtime
requirements at both the federal and state level. These harms
perpetuated severe working conditions, including long hours,
grueling travel schedules, minimal job security, and fixed
wages, placing Minor League players squarely in the throes
of poverty.
*
J.D. Candidate, University of Colorado, 2024; B.S., United States Military
Academy at West Point, 2013; former player, Minor and Major League Baseball. I
would like to thank my family for spending thirty years traveling the world to
watch me throw a ball, and my astonishing wife Abigail for helping me learn how
not to. A salute to the editors at the University of Colorado Law Review, and so
much appreciation for those who stood among and alongside the many athletes
who risked their life’s work by uniting to demand a seat at the table. Special
thanks to Michael Weiner, Harry Marino, Garrett Broshuis, Howie McCann,
Mitch Horacek, Tony Clark, Amy Hever, Marc Normandin, Riley Varner, Larry
Landon, and the many others who helped shape this Note and who laid years of
foundation for labor reform in Minor League Baseball.
1158 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
However, recent events signal change. Following a grassroots
labor movement, Minor League players unionized in 2022
and signed their first collective bargaining agreement prior
to the 2023 season. Nevertheless, the path ahead remains
unclear for the blue-collar workers of baseball, as they must
negotiate with a League that has been notoriously unwilling
to make even the minutest of concessions without
intimidation, anticompetitiveness, and endless litigation.
This Note employs lessons from the history of labor in the
sport to detail the terms of equitable labor conditions and
posits that collective bargaining, while imperfect, presents a
vital opportunity for players in the Minor Leagues to hold
accountable the cartel that is Major League Baseball and
escape the century-old grasp of poverty.
INTRODUCTION ....................................................................... 1159
I. BENCHED: EXPLOITATIVE ORIGINS ............................... 1164
A. Minor League Baseball’s Antitrust Exemption .... 1165
B. Unionization of MLB Players ................................ 1169
C. Delegitimizing Minor League Players .................. 1172
II. GETTING HOT: THE PRECURSORS TO UNIONIZATION.... 1177
A. Senne...................................................................... 1178
B. The River of Molten Sewage.................................. 1179
C. The Path to Unionization ...................................... 1180
III. OUTFIELD ASSIST: COLLECTIVE BARGAINING .............. 1183
A. Scope of Collective Bargaining .............................. 1184
B. The Bargaining Process ........................................ 1186
C. Criticisms of Collective Bargaining ...................... 1187
IV. PROJECTED STARTERS: MINOR LEAGUE
CONSIDERATIONS .......................................................... 1190
A. A Large and Transient Workforce ........................ 1190
B. Antitrust and Statutory Considerations ............... 1193
C. MLBPA and PHPA: Two Major Precedents for
Minor League Interests ......................................... 1194
V. FAIR PLAY: THE CASE FOR AN EQUITABLE DEAL .......... 1196
A. The Deal................................................................. 1197
B. Player Compensation: Who Benefits from the
Big-Leaguers? ........................................................ 1200
CONCLUSION .......................................................................... 1207
2024] IT’S PAST TIME 1159
INTRODUCTION
“[T]he major leagues cannot exist without the Minor
Leagues.”
— Ford Frick, Commissioner of Baseball, 1953 Senate
subcommittee hearing.
1
To the average spectator, the 2023 Minor League Baseball
(“MiLB”) season appeared about the same as all that came
before it. Each evening, the suffocating midsummer day’s heat
abated, if for just a few hours, as communities large and small
across the United States gathered separately but with a
common fervor for a pastime as old and as embedded in the
American social fabric as any other. A summer’s eve of baseball
had arrived, and with it, the graceful duality of anticipation
and contentment. Everyone in the almost-sold-out crowd had at
least a 20 percent chance of getting blasted by the t-shirt
cannon. Someone, of course, absolutely embarrassed
themselves during the dizzy bat race. And the act’s performers
were, as expected, an authentic embodiment of the game itself.
Young players took the field, fervently battling for their very
livelihoods and the hopes of one day taking the same field in a
far bigger city, on a far grander stage. For most, that day will
never come. And even for whom it will—it’s not today. Tonight,
the players showcased brief-yet-dazzling moments of talent
alongside a thematic lack of polish, noted by dozens of old-
timers in the stands who occasionally stopped rambling on
about how they themselves almost went pro to astutely observe
that there’s a reason these boys aren’t in the Big Leagues.
In keeping with Minor League tradition, the perpetual
buzz heard around the ground reflected baseball’s place not
only in American sports history but also, perhaps more
meaningfully, in our social lives. But not all was business as
usual. For the first time since Minor League Baseball was
established over a century ago, its players took the field each
night playing for livable wages and comprehensive benefits
alongside the assurance they may finally be able to exercise
some control in their careers and create a path to vocational
and financial security. Minor League Baseball’s primary
1
. NEIL SULLIVAN, THE MINORS 239 (1990).
1160 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
workforce has unionized, and collective bargaining has begun
to assume (albeit far past due) its rightful place in the labor
relationship between management and players in the Minor
Leagues.
2
Baseball is unflinchingly American—where batter and
pitcher square off in brief, personal duels, and where periods of
relative inaction give way to flashes of brilliance: the sharp
crack of a long home run, the pop in the catcher’s mitt of a late-
game hit-this fastball, a clean backhand in the hole turned
crisp double play. And, becoming of our national pastime,
nowhere on Earth is the sport played quite like it is in
American professional baseball. There is an exceptionality to
the game played at this level: a rare combination of speed,
power, skill, and precision not overlooked by those it has
enraptured since the late nineteenth century. The ambler
among popular American sports, baseball’s thrill lies with
potentiality rather than kinetics, emitting a subtle grace
interrupted periodically by moments of pure electricity singular
only to it. An outfielder might stand completely still while
playing defense for eight innings, not even touching the
baseball, then unleash a ninety-nine mile-per-hour, 220-foot
rocket, throwing out an opposing runner at home plate to win
the game in the ninth inning. No other major American sport
can provide its fans a similar experience. At the heart of this
experience is the players who provide it.
While other scholarship concerning Minor League labor
has concentrated on the events precluding fair player
treatment, this Note is the first after unionization to
comprehensively evaluate both an existing collective
bargaining agreement (“CBA”) and a way forward in the Minor
League labor relationship. To do so, it will attempt to reconcile
the dichotomy between the meandering, artful violence of
America’s national pastime and the cancerous greed underlying
it. Indeed, as activist players and commentators have slowly
peeled back the layers underneath our nation’s most historic
game, the deplorable self-indulgence which sits at the very core
of baseball’s business sits exposed. Yet still, the depths of and
the lengths gone to facilitate the widespread mistreatment of
baseball players frame a shocking picture of how it took so long
2
. Evan Drellich, Guide to Minor League Baseball’s First CBA: Everything
You Need to Know, ATHLETIC (Apr. 3, 2023), https://theathletic.com/4377736/2023
/04/03/minor-league-baseball-cba-union [https://perma.cc/G9CE-FL9U].
2024] IT’S PAST TIME 1161
to effect material change in pursuit of labor parity in the sport,
alongside wise lessons in how righting decades of wrongs is an
achievable goal through collective bargaining. This Note will
highlight these lessons through a historical lens of the sport
and its labor relationships in order to advocate for fairness in
the latter.
For more than a hundred years, various forms of baseball’s
management have adopted cartelist tendencies—openly
colluding to fix prices and restrict competition—while using
ever-growing newspaper, radio, television, internet, and social
media exposure to capitalize on baseball’s popularity by
carefully directing toward its consumers an image of the sport
that reflects our own values and glorifies our own neighborhood
heroes.
3
Iconic sights and sounds of the sport’s storied history
feature its players, who fill our stadiums and our card decks,
and who inspire in us feelings of Americana and community.
4
Meanwhile, baseball’s executives have reaped astronomical
portions of profits from the shadows while laughably (yet
successfully) propagating the false narrative that its players
are overpaid prima donnas who should be thankful for the
opportunities they’ve been “provided.”
5
These false narratives, which skew the public’s perception
of the game and dehumanize its players, have frustrated Major
League Baseball (MLB or the “League”) players’ efforts
throughout the past fifty years to secure a workplace
appropriate for the on-field product of a sport bringing in
titanic revenues.
6
It is the Minor League player, though, who
3
. William F. Saldutti IV, Blocking Home: Major League Baseball Settles
Blackout Restriction Case; However, a Collision with Antitrust Laws Is Still
Inevitable, 24 JEFFREY S. MOORAD SPORTS L.J. 49, 80 (2017).
4
. Garrett R. Broshuis, Touching Baseball’s Untouchables: The Effects of
Collective Bargaining on Minor League Baseball Players, 4 HARV. J. SPORTS &
ENT. L. 51, 56 (2013).
5
. Letter from Robert D. Manfred, Jr., Commissioner, Major League
Baseball, to members of Senate Comm. on the Judiciary (July 29, 2022) (on file
with The Athletic); Stephen L. Carter, Baseball Players Are Not Overpaid,
BLOOMBERG (Dec. 3, 2021, 9:00 AM), https://www.bloomberg.com/opinion/articles
/2021-12-03/baseball-lockout-are-players-overpaid-not-necessarily [https://
perma.cc/HVA2-WAN2].
6
. See Emily Parker, The Inevitability of Major League Baseball’s Antitrust
Exemption, 11 ARIZ. ST. SPORTS & ENT. L.J. 23, 31–32 (2022) (explaining that
despite MLB’s revenue, League control and anticompetitiveness stunted player
ability to actually compete for higher salaries in an open market); Robert
Pannullo, The Struggle for Labor Equality in Minor League Baseball: Exploring
Unionization, 34 ABA J. LAB. & EMP. L. 443, 456 (2020).
1162 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
has been ubiquitously disregarded.
7
And the enduring
narrative that the opportunity to play professional baseball is
simply a dream come true has frustrated commentator
demands that the League and its participant organizations
(“Clubs”) pay its players a livable wage and deliver adequate
working conditions.
One may think it impossible that modern professional
athletes in the United States suffer through a decade or more
of physical labor, injuries, and foregone vocational alternatives
in consideration for salaries placing them directly in poverty.
Yet it is, and worse: players have been acutely aware of their
exploitation for decades and have still found themselves
prevented from acting for lack of resources and fear of
retribution from their Clubs,
8
all to the delight of the
executives pocketing the cash. Even after Minor League
players’ unionization, the fight to earn a comfortable wage
persists.
9
The game’s best players are those who make headlines,
and the same players are often its highest earners. Fifty-five
MLB players each earned more than $20 million during the
2024 season,
10
and since 2019, fourteen players have signed
long-term contracts during which they will each earn more
than $300 million.
11
Because big-money deals are justifiably
noteworthy, what better way to refute allegations of labor
abuse than point to those paid in multiples of the average
American and ask, simply, what do the players have to
complain about? Conveniently for the League, the
7
. See generally David Williams, Major League Baseball’s Indentured Class:
Why the Major League Baseball Players Association Should Include Minor League
Players, 53 U.S.F. L. REV. 515 (2019).
8
. See Ross E. Davies, Along Comes the Players Association: The Roots and
Rise of Organized Labor in Major League Baseball, 16 N.Y.U. J. LEGIS. & PUB.
POL’Y 321, 324–46 (2013) (detailing the chronological history of labor activism in
professional baseball, including the many failed organization attempts by players
prior to the formation of the Major League Baseball Players Association).
9
. Marc Normandin, Major League Baseball’s Hubris Helped Lead to Minor
League Baseball’s Union, DEFECTOR (Oct. 14, 2022, 1:11 PM), https://defector.com
/major-league-baseballs-hubris-helped-lead-to-minor-league-baseballs-union
[https://perma.cc/UZY6-MDFZ] [hereinafter Normandin, Hubris].
10
. MLB Salary Rankings, SPOTRAC, https://www.spotrac.com/mlb/rankings
[https://perma.cc/4S3L-5R27].
11
. This reflects the number of such deals signed as of March 1, 2024. See id.;
see also Tim Dierkes, The Largest Contracts in MLB History, MLB TRADE RUMORS
(Dec. 25, 2022, 10:00 PM), https://www.mlbtraderumors.com/2021/02/mlb-largest-
contracts-2.html [https://perma.cc/5JYK-KGUT].
2024] IT’S PAST TIME 1163
disproportionate number of headlines about the game’s
relatively few high payees perpetuates lingering assumptions
that professional baseball players make substantially more
money than they actually do.
12
It thus tracks that the story of
the Minor League player remained for decades and up to nearly
the moment of unionization a far more unsettling, yet
infrequently publicized, topic.
After 122 years, Minor League players took steps to
redress their ostracization by signing the league’s first CBA
prior to the 2023 season,
13
becoming the largest unionized
group of athletes in the United States.
14
But despite
unionization leading almost certainly to labor reform, future
CBAs must do more to achieve what players deserve.
15
Moreover, even in affording unionized workers increased
bargaining power, collective bargaining is a complicated
process that draws its fair share of criticism. Minor League
players remain exempt from federal minimum wage, overtime,
and antitrust protection.
16
And the League has a storied
history of doggedly facilitating and exploiting loopholes to leash
its workforce.
Still, Minor League players aren’t going at labor reform
alone; their elected union representative is the Major League
Baseball Players Association (MLBPA), arguably the most
powerful athlete representative in the history of sports.
17
The
matters negotiated, arbitrated, and litigated by the MLBPA
over the past fifty-plus years have concerned many issues
12
. Daniel Ryan Axelrod, Baseball’s Minor Leaguers Call Foul: How the Save
America’s Pastime Act Strikes Out Within State Lines, 49 HOFSTRA L. REV. 499,
499 (2021); see also Kevin Togami, Bottom of the Ninth Circuit: Senne v. Kansas
City Royals Baseball Corporation, 40 LOY. L.A. ENT. L. REV. 311, 312 (2020).
13
. Minor League Players Overwhelmingly Approve Historic First Collective
Bargaining Agreement, MAJOR LEAGUE BASEBALL PLAYERS ASS’N (Mar. 31, 2023),
https://www.mlbplayers.com/post/minor-league-players-overwhelmingly-approve-
historic-first-collective-bargaining-agreement [https://perma.cc/5XCC-L43A].
14
. See infra Section IV.A.
15
. See generally History, MAJOR LEAGUE BASEBALL PLAYERS ASS’N, https://
www.mlbplayers.com/history [https://perma.cc/9LB3-UHHD].
16
. Theodore McDowell, Changing the Game: Remedying the Deficiencies of
Baseball’s Antitrust Exemption in the Minor Leagues, 9 HARV. J. SPORTS & ENT. L.
1, 8–9 (2018).
17
. Barry Svrluga, Tony Clark Named Executive Director of Major League
Baseball Players Association, WASH. POST (Dec. 3, 2013), https://
www.washingtonpost.com/sports/nationals/tony-clark-named-executive-director-
of-major-league-baseball-players-association/2013/12/03/e876855a-5c66-11e3-
bc56-c6ca94801fac_story.html [https://perma.cc/EWM5-L5JH].
1164 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
today’s Minor League players now face. Granted, baseball’s
past is marred by a cocktail of anti-competitiveness,
subjugation, and gluttony, and the initial CBA is not a true
reflection of debts owed. Nevertheless, Minor League players at
last find themselves able to do their jobs, pay rent, support
their families, and work alongside the MLBPA in demanding
that the value they bring to the sport is accounted for.
This Note contemplates the impacts of the aforementioned
progress. In Part I, it provides an overview of the history of
labor in baseball and the divergence of bargaining power over
the almost sixty years MLB players have enjoyed a collective
voice, including a discussion of both Major and Minor League
Baseball’s antitrust exemptions. Part II evaluates the sequence
of events that led to the modern labor movement in Minor
League Baseball, namely the filing and implications of Senne v.
Office of the Commissioner of Baseball and MLB’s extensive
lobbying efforts in pursuit of the passage of the Save America’s
Pastime Act. Part III examines positive effects and drawbacks
of collective bargaining. Part IV identifies both existing and
potential friction points in MiLB collective bargaining, and
Part V argues for the equitable terms that baseball’s oft-
marginalized working class deserves.
I. BENCHED: EXPLOITATIVE ORIGINS
Bad news, kids—Major League Baseball is a cartel.
18
It’s
been one for a long time; in fact, anticompetitive tendencies
arose as far back as 1882 when the National League of
Baseball Clubs (“National League”), one of several competing
professional baseball leagues,
19
declared itself the top-flight
league.
20
Because other leagues lacked any formal agreement,
wealthy National League teams engaged in “roster-raiding,”
18
. Michael J. Haupert, The Economic History of Major League Baseball,
ECON. HIST. (Aug. 27, 2003), https://eh.net/encyclopedia/the-economic-history-of-
major-league-baseball [https://perma.cc/B5TE-S6WK]; Broshuis, supra note 4, at
53, 72, 89, 91; Pannullo, supra note 6, at 455; Saldutti, supra note 3, at 65–66;
Bernadette Berger, Shut Up and Pitch: Major League Baseball’s Power Struggle
with Minor League Players in Senne v. Kansas City Royals Baseball Corp., 28
JEFFREY S. MOORAD SPORTS L.J. 53, 58–60 (2021); Williams, supra note 7, at 540;
Dennis Hui, Unionizing the NBA G League, 25 SPORTS LAW. J. 113, 128 (2018);
Matthew Durham, Minor League Compensation and the Save America’s Pastime
Act of 2018, 26 NEV. LAW. 17, 17 (2018).
19
. See Davies, supra note 8, at 324.
20
. Broshuis, supra note 4, at 58.
2024] IT’S PAST TIME 1165
poaching the best players from rival leagues.
21
To combat this,
the National League signed inter-league agreements
formalizing transaction processes, limiting unrestricted access
to the best players.
22
The agreements placed other leagues in
subordinate tiers to the National League and laid the
groundwork for today’s hierarchal, affiliated MiLB system.
23
While affiliation allayed player-market volatility from Club
perspectives, it tethered those players to their employers.
Amateur players entered professional baseball only after being
drafted, and their contracts contained reserve clauses—
provisions that “reserved” one Club’s right to that player’s
services in perpetuity.
24
These clauses essentially gave Clubs
“property rights” barring players from ever freely contracting
with any Club.
25
Player contracts thus affected more than a
player’s mobility: they virtually eliminated player autonomy
over career decisions.
26
Clubs enjoyed unchecked power on all
player matters, including control over player promotions and
demotions between the Major and Minor Leagues, all while
retaining indefinite, exclusive rights to player services.
27
Although players objected immediately, it would take decades
for change. This delay was partly a result of baseball’s
antitrust exemption, as discussed in Section I.A. Section I.B
details the efforts and eventual successes of a players’ union at
the Major League level. The simultaneous plight of Minor
League players is examined in Section I.C, which describes the
divergence in labor conditions in the half century following the
first Major League CBA.
A. Minor League Baseball’s Antitrust Exemption
Bad news again—the League is able to manipulate
markets because it’s exempt from federal antitrust law.
Baseball’s exemption from general antitrust liability makes it
21
. Id.
22
. Id.; see also Davies, supra note 8, at 324.
23
. Broshuis, supra note 4, at 58–59.
24
. Haupert, supra note 18; Ryan T. Dryer, Beyond the Box Score: A Look at
Collective Bargaining Agreements in Professional Sports and Their Effect on
Competition, 2008 J. DISP. RESOL. 267, 268 (2008).
25
. ALBERT G. SPALDING, AMERICA’S NATIONAL GAME: HISTORIC FACTS
CONCERNING THE BEGINNING EVOLUTION, DEVELOPMENT AND POPULARITY OF
BASE BALL 272 (1911); Broshuis, supra note 4, at 59.
26
. See, e.g., Davies, supra note 8, at 325–26.
27
. See Broshuis, supra note 4, at 59.
1166 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
the only major American professional sport with such
immunity,
28
and the League’s abuse of the exemption has
downstream effects far wider than its own labor market. For
most enterprises, the Sherman Antitrust Act of 1890 deems
illegal “[e]very contract . . . or conspiracy[] in restraint of
[interstate] trade or commerce.”
29
The League restrains trade
via, inter alia, limited labor markets, open collusion, reserve
clauses, and uniform contracts; but despite blatantly
suppressing competition,
30
courts have held for a hundred
years that the League may do so exempt from federal antitrust
law.
31
The exemption, forever lacking any “democratic
consensus,”
32
originates from a 1922 Supreme Court decision
categorizing baseball’s nationwide activities as local exhibitions
and thus “purely state affairs.”
33
Because almost any sporting
event is inherently local, this flawed reasoning has endured “on
grounds everyone agrees are inapplicable today,”
34
while
baseball’s business expansion has inarguably placed it squarely
in interstate commerce.
35
While the Curt Flood Act limited the
exemption in 1998 by allowing MLB players to access federal
antitrust protection, Minor League players remain subject to
the same monopolistic conventions.
36
The practical effect is
that the League may conspire with all thirty member Clubs—
each worth, on average, $2.32 billion
37
—to depress MiLB
wages, extend contract lengths, or otherwise collude to keep
28
. Parker, supra note 6, at 31; see also John R. Gerba, Instant Replay: A
Review of the Case of Maurice Clarett, the Application of the Non-Statutory Labor
Exemption, and its Protection of the NFL Draft Eligibility Rule, 73 FORDHAM L.
REV. 2383, 2386 (2005).
29
. 15 U.S.C. § 1.
30
. Id.
31
. Nathaniel Grow, The Save America’s Pastime Act: Special-Interest
Legislation Epitomized, 90 U. COLO. L. REV. 1013, 1018 (2019).
32
. Petition for a Writ of Certiorari at 2, Tri-City ValleyCats v. Office of the
Comm’r of Baseball, 144 S. Ct. 389 (2023) (No. 23-283).
33
. Fed. Baseball Club of Baltimore v. Nat’l League of Pro. Base Ball Clubs,
259 U.S. 200, 208 (1922).
34
. Petition for Writ of Certiorari at 2, Tri-City ValleyCats, 144 S. Ct. 389 (No.
23-283).
35
. Karen M. Lent & Anthony J. Dreyer, The Current State of Major League
Baseball’s Antitrust Exemption, REUTERS (July 20, 2023, 8:43 AM), https://
www.reuters.com/legal/legalindustry/current-state-major-league-baseballs-
antitrust-exemption-2023-07-20/ [https://perma.cc/GFP8-E8SY].
36
. Berger, supra note 18, at 69.
37
. Id. at 11.
2024] IT’S PAST TIME 1167
their pockets filled without repercussion. The real-life effect is
that the League has done exactly that for decades.
Players aren’t the only victims of these exemption-enabled
League behaviors—so are you. Across the United States,
communities centered around sports franchises benefit from
the revenue that those franchises bring into the local economy,
the jobs created therein, and the cohesiveness that sports
tribalism helps sew into social fabric.
38
When the League
creates artificial scarcity—either in its own labor market or by
franchise disaffiliation or relocation—it distorts interstate
market conditions and creates downstream effects causing
hardships at the community level across the United States.
39
The League promotes (with impunity) its own interests at the
expense of “the needs of the market,”
40
resulting in revenue,
jobs, and cohesion stripped from hundreds of thousands of
people in dozens of communities at once. No need to propose a
hypothetical—just look back at 2020, when MLB cut forty-two
affiliate franchises.
41
More accurately, the League “took over
the market, decided the number of participants, and dictated
which minor league teams would be in or out.”
42
Harms caused
by the League extended well past the franchises and players
themselves and into each of these communities,
43
but that’s
what a cartel does.
44
Language noting MLB bosses’ kinship with cartels,
monopolies, and “private . . . dictatorship[s]”
45
is rather
abundant and yet goes largely uncontested by those it
condemns. Baseball’s management often relies on the
paradoxical argument that extinguishing competition is good
for the sport. In a 2022 letter to a Senate Judiciary Committee
38
. Id. at 19.
39
. Id. at 18–20.
40
. Id. at 19.
41
. Joan Niesen, Following Contraction, Minor League Baseball Is Smaller.
But Is It Better?, GLOB. SPORT MATTERS (Oct. 19, 2021), https://
globalsportmatters.com/business/2021/10/19/minor-league-baseball-contraction-
smaller-better-union-mlb-housing [https://perma.cc/3T9B-DPHK].
42
. Petition for Writ of Certiorari at 19, Tri-City ValleyCats, 144 S. Ct. 389
(No. 23-283).
43
. Id. at 18; see also Brief of Amicus Curiae Major League Baseball Players
Association in Support of Petitioners at 4, 13, Tri-City ValleyCats, 144 S. Ct. 389
(No. 23-283).
44
. Cartel, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary
/cartel [https://perma.cc/2AQ4-JY3C].
45
. Gardella v. Chandler, 172 F.2d 402, 415 (2d Cir. 1949).
1168 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
investigating the effects of the exemption, MLB Commissioner
Rob Manfred even went so far as to assert it has “meaningfully
improved the lives of Minor League players, including their
terms and conditions of employment.”
46
This sort of
“anticompetitive is good” nonsense is a recurring motif among
baseball executives. In 1967, Atlanta Braves General Manager
Paul Richards dubbed the MLBPA’s first Executive Director
Marvin Miller an “outsider,” while predicting free agency would
eliminate the marketability of “90 per cent [sic] of all
ballplayers.”
47
Richards was spectacularly wrong on both accounts then,
as Manfred is now—Mr. Miller went on to lead the MLBPA
from 1966 to 1982, forever altering baseball’s labor
landscape.
48
Both Richards and Manfred surely knew the
absurdity of trying to reframe player opportunity as a feature,
rather than a bug, of anticompetitiveness. Otherwise, they both
appear to have fundamentally misunderstood the disparate
economics of monopolized and free labor markets, as evidenced
by what happened immediately after what Richards said would
be catastrophic for MLB players. In 1975, the last MLB season
without free agency, the average salary was $45,000.
49
In less
than a decade, it had grown to $289,000,
50
and by 2020 to $4.4
million.
51
Attributing this wage growth to factors other than
free agency is unsupported—comparisons of revenue and
salaries over time overwhelmingly support free agency’s
primacy. Between 1975 and 2002, MLB revenues increased
1,800 percent, while player salaries increased 5,200 percent.
52
The sharp increase in both values indicates that the sport
remained overwhelmingly financially healthy, while the chasm
between them reflects free agency’s primacy in wage growth.
Free agency didn’t eliminate marketability—it fostered
competition in labor markets that would have been impossible
without MLB player unionization in the 1960s and subsequent
46
. Manfred, supra note 5.
47
. Players Get ‘Warning’, PITT. PRESS (Dec. 1, 1967).
48
. Richard Goldstein, Marvin Miller, Union Leader Who Changed Baseball,
Dies at 95, N.Y. TIMES (Nov. 27, 2012), https://www.nytimes.com/2012/11/28
/sports/baseball/marvin-miller-union-leader-who-changed-baseball-dies-at-95.html
[https://perma.cc/6AZB-S9FE].
49
. Haupert, supra note 18.
50
. Id.
51
. Pannullo, supra note 6, at 452.
52
. Haupert, supra note 18.
2024] IT’S PAST TIME 1169
negotiations to limit the effects of baseball’s antitrust
exemption. For this, MLB players have their predecessors and
the MLBPA to thank.
B. Unionization of MLB Players
The MLBPA was hardly the first attempt to organize MLB
players. Baseball’s workforce strove as early as the 1880s to
combat growing labor exploitation, but initial efforts to
organize proved futile.
53
Unionization efforts rose and fell in
the first half of the twentieth century;
54
although they
informed future decisions and paved the way for MLBPA
successes, they were plagued by weak leadership, low player
support, financial trouble, and fierce opposition from far
wealthier management. All ultimately failed.
55
Even the
MLBPA was functionally ineffective as a players’ union for
more than a decade—although founded in 1954, it was 1968
before the MLBPA negotiated the first CBA in the history of
top-flight professional sports.
56
MLB players’ struggle to organize reflects the sport’s
longstanding power imbalance. The most flagrant evidence of
that imbalance—and MLB player motivations to unionize—was
the aforementioned reserve clause.
57
In response to decades of
depressed wages and forced immobility, generations of players
did what they could to fight the reserve clause—or escape it.
58
In the 1940s, MLB players frustrated with these contracts
accepted offers to play in Mexico.
59
Later, the same players lost
years from their careers after Commissioner Happy Chandler
blacklisted any player who left from returning to the League.
60
Although the dispute eventually settled and the clause
survived, the U.S. Court of Appeals for the Second Circuit in
Gardella v. Major League Baseball assigned blame to the
53
. Davies, supra note 8, at 325–36.
54
. Player-led labor organizations included the Brotherhood of Professional
Base Ball Players, the Players’ Protective Association, the Fraternity of
Professional Baseball Players of America, the National Baseball Players
Association of the United States, and the American Baseball Guild. See id. at
325–34.
55
. Id. at 325–37.
56
. Broshuis, supra note 4, at 55.
57
. Id. at 65–66.
58
. SPALDING, supra note 25, at 272.
59
. Haupert, supra note 18.
60
. Id.
1170 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
reserve clause, calling for its eradication because “no court
should strive ingeniously to legalize a private . . .
dictatorship.”
61
While unionization didn’t immediately abolish the reserve
clause, it achieved other resolutions for MLB players on the
way; the 1968 CBA contained important provisions
establishing a formal grievance process, a pension plan, and
higher minimum salaries.
62
In 1970, the second MLB CBA
built upon the foundation of the first by establishing a binding,
neutral arbitration process for dispute resolution. This was
critical for players who had previously only been able to file
grievances against baseball’s management with management
itself.
63
Arbitration became an important mechanism for
dispute resolution, but sharper disagreements remained,
64
as
play stoppages and lawsuits subsequently plagued the sport for
more than a quarter century.
65
Perhaps most notably, the League stood unwavering on the
reserve clause, while players placed it in their crosshairs.
66
In
1972, MLB star Curt Flood filed a lawsuit after being traded to
the Philadelphia Phillies, a Club and city he had no interest in.
However, in deciding Flood v. Kuhn, the United States
Supreme Court refrained from ruling on the legality of the
reserve clause.
67
By dusting off its cryptic and often selectively
misplaced stare decisis survival guide, and despite noting
baseball’s antitrust exemption was an “aberration”
68
widely
held to be “unrealistic, inconsistent, [and] illogical,”
69
the Court
punted to Congress and the clause survived.
70
Despite the Court’s balk in Flood, the reserve clause in
MLB contracts was on borrowed time. Three years later, MLB
pitchers, Andy Messersmith and Dave McNally, employed the
61
. Gardella v. Chandler, 172 F.2d 402, 415 (2d Cir. 1949); see also Haupert,
supra note 18.
62
. See History, supra note 15.
63
. Id.
64
. See id.; Broshuis, supra note 4, at 70–72.
65
. See generally History, supra note 15.
66
. Stephen F. Ross & Michael James, Jr., A Strategic Legal Challenge to the
Unforeseen Anticompetitive and Racially Discriminatory Effects of Baseball’s
North American Draft, 115 COLUM. L. REV. SIDEBAR 127, 144 (2015).
67
. Flood v. Kuhn, 407 U.S. 258 (1972); History, supra note 15; Williams,
supra note 7, at 538–39.
68
. Flood, 407 U.S. at 282.
69
. Id. (quoting Radovich v. Nat’l Football League, 352 U.S. 445, 452 (1957)).
70
. Id. at 285.
2024] IT’S PAST TIME 1171
new dispute resolution provision from the 1970 CBA to
challenge the clause in front of MLB-appointed neutral
arbitrator, Peter Seitz.
71
Seitz held in favor of the players and
determined that Clubs could no longer perpetually renew a
player’s contract.
72
Seitz was fired by the owners the same day
in retaliation for the decision,
73
but the reserve clause was
eradicated from MLB contracts and the 1976 CBA codified its
permanent erasure; all MLB players would thereafter be
eligible for free agency after six years of service time.
74
Incredibly, it took only seven years following MLB’s first CBA
for players to finally achieve what we now know as free
agency.
75
Free agency became as invaluable for players as its
absence was previously worth to the League, and salaries
skyrocketed alongside labor market competition. In the 1980s
and 1990s, Clubs made horizontal deals with each other to
suppress wages,
76
and dozens of collusion allegations led to the
League paying settlements worth nearly $300 million.
77
But
loss after loss in court did little to deter the League and its
Clubs from attempting to seize back control, again in unsavory
fashion. During 1994 CBA negotiations, the League demanded
a salary cap and regressive free agency terms.
78
MLB players
went on strike, the remainder of the season was cancelled, and
the 1994 World Series was never played.
79
MLB owners then
threatened to establish a salary cap and remove third-party
arbitration for salary disputes.
80
Although quickly rescinded,
the threat drew complaints with the National Labor Relations
Board, and in April 1995, then-Judge Sonia Sotomayor of the
U.S. District Court for the Southern District of New York held
that the League engaged in unfair labor practices by
71
. Broshuis, supra note 4, at 71.
72
. Davies, supra note 8, at 341; Dryer, supra note 24, at 270.
73
. See Thomas J. Hopkins, Arbitration: A Major League Effect on Players’
Salaries, 2 SETON HALL J. SPORT L. 301, 309 (1992).
74
. Broshuis, supra note 4, at 71–72.
75
. History, supra note 15; Broshuis, supra note 4, at 71–72.
76
. Davies, supra note 8, at 344.
77
. Id.
78
. Broshuis, supra note 4, at 80.
79
. See Silverman v. Major League Baseball Player Rels. Comm., Inc., 880 F.
Supp. 246, 251 (S.D.N.Y.), aff’d, 67 F.3d 1054 (2d Cir. 1995).
80
. Id. at 252.
1172 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
attempting to unilaterally impose its preferred labor terms on
employees.
81
The hits kept on coming. In 1998, the Curt Flood Act
codified MLB players’ protection under federal antitrust law,
enabling player access to antitrust litigation.
82
The law not
only fostered competition on the field, but it also at last cooled
the parties’ attitudes toward litigating off of it. Since the turn
of the century, the labor relationship between the League and
the MLBPA has been less contentious, if only marginally so.
Tensions remain, including a 100-day lockout in 2022 that
eventually resulted in a full 162-game schedule,
83
but
compared to the relationship’s infancy, management and
employees have struck relative harmony over the past twenty
years in baseball’s top-flight league. Despite MLB’s quasi-
peace, the introduction of collective bargaining in the Minor
Leagues, when compared with conditions prior to it, suggests
future strife. After a strike-, lockout-, and litigation-laden
period dominated labor dealings in baseball from the
establishment of the MLBPA in the sixties through the mid-
nineties, the notion that early days of labor terms will mirror
the current MLB-MLBPA relationship colors a shade
optimistic.
84
C. Delegitimizing Minor League Players
The League has long exploited the collective organizational
vacuum in Minor League Baseball to subjugate its workforce,
failing to assist with some of players’ most basic human needs.
Among those needs, housing has always been a massive
problem for Minor League players, as Clubs have been
reluctant to shoulder responsibility for players who are often
shuffled cross-country between affiliates at a moment’s
notice.
85
As a result, players required to juggle a demanding
81
. Id.; Davies, supra note 8, at 344–45; see also infra Part III.
82
. Davies, supra note 8, at 345.
83
. Maury Brown, With MLB Lockout Over, Here Are All the Details of New
2022-26 Labor Deal, FORBES (Mar. 10, 2022, 10:05 PM), https://www.forbes.com
/sites/maurybrown/2022/03/10/with-mlb-lockout-over-here-are-all-the-details-of-
new-2022-26-labor-deal [https://perma.cc/Z6WW-Z7Y4].
84
. Davies, supra note 8, at 347.
85
. Jeff Passan, MLB to Pay $185 Million in Settlement with MiLB Players
over Minimum-Wage and Overtime Allegations, ESPN (July 15, 2022), https://
www.espn.com/mlb/story/_/id/34249632/mlb-pay-185-million-settlement-minor-
league-players-minimum-wage-allegations [https://perma.cc/SQK2-Y3CG].
2024] IT’S PAST TIME 1173
career for almost no money and while being consistently
uprooted have resorted to living in overcrowded apartments,
with host families, or even in their cars.
86
While these issues
existed for decades, activist-era players started speaking out:
in 2021, reports of Baltimore Orioles players living in their cars
prompted the Club to “allow” players to split hotel rooms for
lower nightly rates.
87
The offer from the Orioles was far from
generous; to rent a room, players had to spend 40 percent of
their daily wage instead of the usual 80 percent.
88
It wasn’t
just the Orioles; in 2021, the final year before all Clubs were
required by the League to take responsibility for player
lodging, only one of the thirty Clubs provided housing for all of
its Minor League players.
89
In the past, Minor League players have been, quite
literally, left out in the cold both during the season and
between seasons.
90
Even while housing reform was mandated
for all Clubs across Minor League Baseball before the 2023
CBA, glaring problems remained, including cramped sleeping
arrangements, privacy concerns, mixed housing between player
families and single players, and more.
91
These issues, along
with player salaries and much more, exemplify just how badly
Minor League players needed organizational help to stop their
exploitation.
Nowhere is this premise more evident, nor more directly
illustrative of the MiLB player’s hardship, than wage increases
of unionized MLB players compared with their nonunionized
MiLB counterparts.
92
Between 1976—the League’s first year
with free agency—and the 2022 season, the MLB minimum
salary increased by an astronomical 3,584 percent.
93
During
the same time period, the median individual income in the
86
. Axelrod, supra note 12, at 507; Nathan Ruiz, As Advocate Group Raises
Concerns About Housing for Orioles Minor Leaguers, GM Mike Elias Says Club
Would ‘Never Allow a Situation Where Someone Is Not Safe, BALT. SUN (June 17,
2021), https://www.baltimoresun.com/sports/orioles/bs-sp-orioles-minor-league-
housing-20210617-d6lxf4mdtzag7juoqc5mjeexei-story.html [https://perma.cc
/AZ4W-8LY8].
87
. Ruiz, supra note 86.
88
. Id.
89
. Id.
90
. See McDowell, supra note 16, at 20.
91
. MORE THAN BASEBALL, LEFT STRANDED: HOW MAJOR LEAGUE BASEBALL
LEAVES MILB PLAYERS BEHIND 10 (2022) [hereinafter MORE THAN BASEBALL].
92
. See supra Section I.A.
93
. Broshuis, supra note 4, at 92 n.286; see also Brown, supra note 83.
1174 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
United States rose 792 percent.
94
The federal poverty line
increased by 377 percent.
95
MiLB minimum salary? 129
percent.
96
This means Minor League players, who were already
playing in poverty in the seventies, watched the threshold to
escape poverty increase three times faster than their wages.
In the face of irrefutable fact, the League consistently
pretends things are wages that are decidedly not wages. In
2022, it claimed to spend $108,000 each year per MiLB player
on compensation and benefits.
97
Commissioner Manfred, who
is paid an annual ‘living wage’ of $17.5 million, “reject[ed] the
premise that Minor League players are not paid a living
wage.”
98
Reality paints a picture diametrically opposed to
Manfred’s ironic and “callous” claim.
99
At the time, wages in
the lower levels of the Minor Leagues were just more than
$1,000 a month—players received paychecks only during the
five-month season, and some players earned as little as $4,800
for the entire season.
100
These concerns existed across the
board; players at every level were compensated below the
94
. The median individual income in the United States was $5,375 in 1976
and $47,960 in 2022. U.S. CENSUS BUREAU, P60 No. 114, CONSUMER INCOME:
MONEY INCOME IN 1976 OF FAMILIES AND PERSONS IN THE UNITED STATES 1
(1978); U.S. CENSUS BUREAU, P60 No. 279, INCOME IN THE UNITED STATES 8
(2023).
95
. The poverty threshold in 1976 for a family of four was $5,815. By 2022,
that number had risen to $27,750. U.S. CENSUS BUREAU, P60 NO. 115, CONSUMER
INCOME: CHARACTERISTICS OF THE POPULATION BELOW THE POVERTY LEVEL:
1976 1 (1978); DEP’T OF HEALTH AND HUM. SERV., Annual Update of the HHS
Poverty Guidelines, 87 Fed. Reg. 3315, 3316 (Jan. 21, 2022).
96
. Many estimates placed pre-unionized Minor League salaries at less than
$10,000 per year, compared with the minor league minimum of $4,375 from 1976.
Even this is generous. The 2022 minimum salary estimate of $10,000 assumes
each player is paid a minimum of $500 per week for a full five-month season. In
reality, many players played shorter seasons in which they are paid less than
$400 a week for less than four months. The higher estimate was chosen to
illustrate the divergence in salaries for MLB and MiLB players playing full
seasons. See Jeremy Ulm, Antitrust Changeup: How a Single Antitrust Reform
Could Be a Home Run for Minor League Baseball Players, 125 DICK. L. REV. 227,
242 (2020); see also Broshuis, supra note 4, at 63, 92.
97
. Manfred, supra note 5.
98
. Ricky O’Donnell, Rob Manfred’s Comments on Minor Leaguers Show He
Has No Idea What a Living Wage Is, SB NATION (July 20, 2022, 7:00 AM), https://
www.sbnation.com/mlb/2022/7/20/23270625/rob-manfred-minor-leaguers-living-
wage-comments-calculator [https://perma.cc/RAV3-96US].
99
. Jelani Scott, Minor Leaguer Advocate Weighs in on Manfred’s Antitrust
Exemption Letter, SPORTS ILLUSTRATED (July 29, 2022), https://www.si.com/mlb
/2022/07/29/minor-leaguer-advocate-harry-marino-weighs-in-rob-manfred-
antitrust-exemption-letter [https://perma.cc/U3RY-CXCN].
100
. McDowell, supra note 16, at 3; see also Drellich, supra note 2.
2024] IT’S PAST TIME 1175
federally recognized poverty line.
101
In 2018, a first-year player
in Triple-A, just one level away from the Big Leagues, made
$11,825 over the entire season.
102
The poverty threshold in
2018? $12,140.
103
Signing bonuses, too, are not wages. Despite League
attempts to lump player bonuses and wages together in
support of the argument that its players are not underpaid,
104
bonuses are research and development expenses offered to
incentivize a draftee to forego other alternatives—not wages.
105
Wages and bonuses in the Minor Leagues are peanuts and
Cracker Jacks—wages are compensation for performed
services, bonuses are the cost of having the right to access that
player’s services. Of course, many players do receive bonuses
when they’re drafted, but while some draftees are offered high
amounts, 40 percent of drafted
106
players receive less than
$10,000.
107
Furthermore, signing bonuses are artificially
depressed by League-recommended amounts and bonus
caps,
108
and the market is further constrained by the fact that
drafted players are only able to negotiate with the Club that
drafted them.
109
101
. Levi Weaver, On Minor-League Pay, MLB’s Stance Doesn’t Line Up with
the Facts, ATHLETIC (Apr. 4, 2018), https://www.theathletic.com/293189/2018/04
/04/on-minor-league-pay-mlbs-stance-doesnt-line-up-with-the-facts [https://
perma.cc/J4MA-BW5S].
102
. Id.
103
. Id.
104
. Pannullo, supra note 6, at 447; see also Manfred, supra note 5.
105
. Pannullo, supra note 6, at 448.
106
. This statistic does not take into account the high number of undrafted
players also entering professional baseball, almost none of whom receive
meaningful signing bonuses; as an example, when the author signed as an
undrafted free agent in 2013, he received no signing bonus. In 2023, there were
614 total players selected in the MLB draft, and 229 additional players signed to
undrafted free agent contracts. See R.J. Anderson & Stephen Pianovich, 2023
MLB Draft Tracker, Results: Full List of All 614 Picks, Plus Analysis of Every
First-Round Selection, CBS SPORTS (July 12, 2023 9:48 AM), https://
www.cbssports.com/mlb/news/2023-mlb-draft-tracker-results-full-list-of-all-614-
picks-plus-analysis-of-every-first-round-selection [https://perma.cc/ME8Y-7N24];
BA Staff, 2023 MLB Undrafted Free Agent Tracker: Agreements for All 30 Teams,
BASEBALL AM. (July 28, 2023), https://www.baseballamerica.com/stories/2023-
mlb-undrafted-free-agent-tracker-agreements-for-all-30-teams [https://perma.cc
/4RMQ-PK2N].
107
. Weaver, supra note 101; see also Ulm, supra note 96, at 242.
108
. Garrett R. Broshuis, Deterring Opportunism Through Clawbacks: Lessons
for Executive Compensation from Minor League Baseball, 57 ST. LOUIS U. L.J. 185,
196–98 (2012).
109
. See Pannullo, supra note 6, at 448.
1176 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
In addition to gaslighting its audience that a $4,800
annual salary is a living wage, the League has also defended
payroll decisions by publicly vying to categorize players as
seasonal workers and entertainers.
110
In the words of
Commissioner Manfred, Clubs “provide playing opportunities
for minor-league players. It’s a six-month job. Just like
entertainers often work six months at a pop. The other six
months are the responsibility of the employee!”
111
U.S. judges
disagree; this argument has been repeatedly shot down by
federal courts and the Department of Labor.
112
Apparently
ignorant of the physical labor required during the “other six
months,” Manfred also fails to observe that unlike musicians
and entertainers, who can freely enter into contracts to perform
as they choose and reap the benefits of their successes and
increased popularity to demand better pay and benefits, Minor
League players are contractually bound for years on end.
113
This last point is crucial: League management has
consistently perpetuated low wages and stifled the MiLB labor
market via a modified form of the reserve clause.
114
There’s a
reason MLB players fought so hard against the clause in the
1970s—it has contaminated player contracts since the earliest
days of baseball. Gardella, the 1976 CBA, and the Curt Flood
Act slowly chipped away the effects of the reserve clause from
the League over the second half of the twentieth century;
however, core elements of the clause and its function remain in
modern MiLB contracts.
While Clubs no longer hold both exclusive and infinite
rights to players’ services, don’t sit fastball here—Minor
League contracts still operate almost identically in practice.
The first professional contract signed by almost every player is
the same, and each has long and non-negotiable contract
lengths—usually covering the first seven seasons of the
player’s career.
115
And because most players entering
professional baseball are drafted, they have no choice of
employer.
116
Even the game’s most coveted prospects often find
themselves under contract with one Club for their entire
110
. Axelrod, supra note 12, at 501.
111
. Weaver, supra note 101.
112
. Axelrod, supra note 12, at 510.
113
. Id.; McDowell, supra note 16, at 9–10; see Broshuis, supra note 4, at 64.
114
. See supra Part I.
115
. McDowell, supra note 16, at 9.
116
. Id.
2024] IT’S PAST TIME 1177
careers—they can be held in the Minor Leagues for seven
years, and even if they make it to the Major Leagues, MLB
players are only eligible for free agency after six full
seasons.
117
Six years is difficult to reach—Clubs can demote
players to the Minor Leagues for multiple years while retaining
sole rights to the player,
118
intentionally suppressing the
player’s time spent in the Major Leagues and delaying free
agency.
119
The interplay of these complex rules means a player
could be employed by a single Club for sixteen years.
120
Frankly, few players have career lengths anywhere near this,
which means the real-life effect is that the reserve clause
remains functionally indefinite. For decades, the League used
these practices to leash its Minor League players and subsidize
its future MLB product with talent paid below the poverty line.
But MiLB exploitation over time eventually met resistance as
tensions bubbled beneath the surface.
II. GETTING HOT: THE PRECURSORS TO UNIONIZATION
MLB enjoyed a full century of profitability in no small part
due to its cartelist control over a developmental league fully
subsidizing its future MLB labor force—while denying its
workers the “basic right of freedom of contract.”
121
However,
players kept receipts, and the filing of a game-changing lawsuit
in 2014 and the League’s knee-jerk reaction shortly thereafter
signified the beginning of the end of the League’s unchecked
power in the Minor Leagues.
117
. Weaver, supra note 101.
118
. Minor League Options, MLB, https://www.mlb.com/glossary/transactions
/minor-league-options [https://perma.cc/AYJ3-8FX3].
119
. Mike Axisa, Mariners President Kevin Mather Admits Team Manipulates
Service Time and Criticizes Player’s English in Video, CBS SPORTS (Feb. 22, 2021,
2:26 PM), https://www.cbssports.com/mlb/news/mariners-president-kevin-mather-
admits-team-manipulates-service-time-and-criticizes-players-english-in-video
[https://perma.cc/NB5B-KLEF].
120
. This is calculated in accordance with the following unlikely, but
completely possible, scenario: player drafted + 7 years of MiLB control + Added to
MLB Roster + 3 years optioned from MLB roster in Spring Training with no
service time accrued + 6 years of service time.
121
. Brief of Amicus Curiae Major League Baseball Players Association in
Support of Petitioners at 6, Tri-City ValleyCats, 144 S. Ct. 389 (No. 23-283).
1178 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
A. Senne
Senne v. Office of the Commissioner of Baseball was a
class-action lawsuit that became highly publicized not only for
its success but also because it amplified grumblings about
MiLB work conditions.
122
The first-named party in the lawsuit,
Aaron Senne, was a Minor League player forced to end his
baseball career because, like so many others, playing baseball
became financially unsustainable.
123
The Senne complaint
pointed to open collusion among the League and its Clubs to
intentionally suppress player wages and benefits; many MiLB
players signed on to the class, which was twice-expanded in the
suit’s first six months.
124
The effect was twofold: not only did it
facilitate player awareness and dialogue over workplace
conditions around the country,
125
it also got the attention of
the League.
In 2016, concerned over Senne and financial implications
following the prospect of having to pay its players even a penny
more,
126
the League undertook an extensive lobbying campaign
for legislative protection from federal minimum wage and
overtime laws.
127
MiLB affiliate owners, long under threat that
League owners would consolidate the Minor League system,
grew concerned about the longevity of their businesses.
128
MiLB owners realized that the League, if faced with paying
higher player salaries, could likely achieve cost-cutting through
reductions in subsidies to Minor League affiliates and possible
contraction affecting a significant portion of Minor League
Baseball.
129
These owners joined the League in its lobbying
122
. Togami, supra note 12, at 315.
123
. Theodore Tollefson, How a Mayo High School Grad Paved Way for Minor
League Baseball Players to Earn a Living Wage, POST BULLETIN (Sept. 22, 2022,
7:00 AM), https://www.postbulletin.com/sports/how-a-mayo-high-school-grad-
paved-way-for-minor-league-baseball-players-to-earn-a-living-wage [https://
perma.cc/M9DK-S9JY].
124
. See Matt Bonesteel, Minor League Baseball Players’ Lawsuit Alleges that
MLB Isn’t Paying Them Minimum Wage, WASH. POST (July 16, 2014, 9:32 AM),
https://www.washingtonpost.com/news/early-lead/wp/2014/07/16/minor-league-
baseball-players-lawsuit-alleges-that-mlb-isnt-paying-them-minimum-wage
[https://perma.cc/LGM2-V2JK].
125
. Normandin, Hubris, supra note 9.
126
. Grow, supra note 31, at 1024.
127
. Axelrod, supra note 12, at 510–11.
128
. See Parker, supra note 6, at 57–58.
129
. Grow, supra note 31, at 1024–25.
2024] IT’S PAST TIME 1179
efforts,
130
and the Save America’s Pastime Act (“SAPA”), more
appropriately known as the “River of Molten Sewage,”
131
was
introduced in Congress in 2016.
132
B. The River of Molten Sewage
SAPA sought to exclude Minor League players from
minimum wage requirements and overtime protections under
the Fair Labor Standards Act (FLSA) and, in so doing,
supersede Senne.
133
SAPA is a misnomer non sequitur. Really,
SAPA saved nothing but the dirtiest corners of our national
pastime; it further padded the pockets of the League’s “eleven-
figure industry . . . preying on [the] powerless, invisible
backbone that actually needs to be saved.”
134
Immediate
backlash from fans and sports media was so severe, one of the
bill’s sponsors withdrew her support of the bill less than a week
after introducing it, and SAPA went nowhere.
135
However, the
League laid in wait to reintroduce SAPA as a must-pass bill.
Two years and two government shutdowns later, Congress was
up against a deadline to keep the government open.
136
The
public discovered SAPA’s inclusion only five days before the
deadline via a leak by congressional officials,
137
and despite
130
. Id. at 1025.
131
. Grant Brisbee, Here’s Why the Save America’s Pastime Act Is a River of
Molten Sewage, SB NATION (July 30, 2016, 1:57 PM), https://www.sbnation.com
/mlb/2016/6/30/12068178/save-americas-pastime-act-minor-league-salaries
[https://perma.cc/YRX2-GW68].
132
. See Phillip J. Closius & Joseph S. Stephan, Myth, Manipulation, and
Minor League Baseball: How a Capitalist Democracy Engenders Income
Inequality, 89 U. CIN. L. REV. 84, 103 (2020).
133
. Axelrod, supra note 12, at 511; Grow, supra note 31, at 1024–25.
134
. See Closius & Stephan, supra note 132, at 103.
135
. Axelrod, supra note 12, at 511; see also Grow, supra note 31, at 1026;
Aaron Blake, After Outcry over Minor League Baseball Bill, Congresswoman Can’t
Disown It Fast Enough, WASH. POST (June 30, 2016), https://
www.washingtonpost.com/news/the-fix/wp/2016/06/30/after-outcry-over-bill-on-
minor-league-baseball-pay-congresswoman-cant-disown-it-fast-enough/ [https://
perma.cc/7LLW-454S].
136
. Axelrod, supra note 12, at 512.
137
. Id. at 512; see also Mike DeBonis, Spending Bill Could Quash Minor
League Baseball Players’ Wage Claims, WASH. POST (Mar. 18, 2018, 10:26 PM),
https://www.washingtonpost.com/powerpost/spending-bill-could-quash-minor-
league-baseball-players-wage-claims/2018/03/18/d31cd76e-2b0a-11e8-8ad6-
fbc50284fce8_story.html [https://perma.cc/DFV4-LJPK].
1180 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
further public outcry,
138
former President Donald Trump
signed SAPA into law on March 23, 2018.
139
SAPA, a “textbook piece of special-interest legislation,”
140
occupied pages 1,967–68 of the 2,232-page bill and did exactly
what baseball executives wanted it to do—it excluded Minor
League players from federal minimum wage requirements and
overtime protections, so long as the players received a weekly
salary greater than the minimum wage for a forty-hour work
week.
141
Of course, this calculation was a façade; players work
closer to seventy hours per week.
142
SAPA also codified unpaid
player labor during mandatory offseason activities and Spring
Training.
143
In the process of pushing the legislation that
would cement its authority to keep its employees in poverty,
the League spent $1.3 million lobbying to ensure SAPA’s
passage.
144
As it turns out, this expenditure would be much
more costly.
C. The Path to Unionization
The effect of SAPA on the employees it dehumanized was
tremendous, but it cost MLB more in the end. Post-SAPA
effects on players were grim, as more than half of Minor
League players had to work second jobs in the offseason to
support themselves.
145
But despite the League’s manipulation
on Capitol Hill, public disapproval regarding SAPA and poor
MiLB conditions ballooned.
146
Labor issues had arrived at the
forefront of MiLB discourse, clouding the once-rosy image of
138
. Axelrod, supra note 12, at 513.
139
. H.R. 1625, 115th Cong. § 201 (2018); Axelrod, supra note 12, at 513.
140
. Grow, supra note 31, at 1046.
141
. H.R. 1625, 115th Cong. § 201 (2018); Axelrod, supra note 12, at 512; Mike
Axisa, Congress’ ‘Save America’s Pastime Act’ Would Allow Teams to Pay Minor-
Leaguers Less Than Minimum Wage, CBS SPORTS (Mar. 22, 2018), https://
www.cbssports.com/mlb/news/2022-world-series-bold-predictions-onslaught-of-
home-runs-a-framber-valdez-complete-game-and-more [https://perma.cc/A8AL-
X592].
142
. Pannullo, supra note 6, at 456.
143
. Grow, supra note 31, at 1038.
144
. Weaver, supra note 101.
145
. MLB Approves First Contract for Minor League Players, CBS NEWS (Mar.
31, 2023, 5:51 PM), https://www.cbsnews.com/news/mlb-minor-league-contract-
approved-players [https://perma.cc/UC8V-9AHT]; see also MORE THAN BASEBALL,
supra note 91.
146
. See Normandin, Hubris, supra note 9; see also Axisa, supra note 141.
2024] IT’S PAST TIME 1181
fame and riches in professional baseball.
147
Unpaid Spring
Training,
148
Instructional Leagues,
149
and mandatory
offseason workouts
150
don’t sound quite like the glamorous life
of baseball the League pushed on its viewers for the past
century.
SAPA’s evils codified the status quo of poverty that Senne
threatened to uproot; providing for their families, building
meaningful careers, and accumulating wealth was already
near-impossible for Minor League players. Despite earnings
potential if called up to the Big Leagues, more than 82 percent
of drafted players never get that call.
151
For those drafted
outside the top ten rounds of the MLB Draft, where Club
investments in player signing bonuses dwindle, that number
rises to more than 95 percent.
152
And because earning living
wages as a baseball player was almost exclusively an
opportunity available to those who had played in the Major
Leagues, SAPA ensured the prospects of forging a career
playing baseball, or even earning a minimum wage, remained
unavailable to the vast majority of those vying to. The League’s
misstep in its calculations was failing to account for the
present and former players who decided in the periphery of
SAPA that they’d had enough.
The plaintiffs in Senne
153
litigated the case until 2022,
when they secured a $185 million settlement from the League
for wage and overtime violations payable to all eligible Minor
League players.
154
Magistrate Judge Joseph Spero of the U.S.
District Court for the Northern District of California, who
granted summary judgment for the players in Senne’s early
days, separately awarded almost $2 million to Minor League
147
. Broshuis, supra note 4, at 63; Pannullo, supra note 6, at 475.
148
. Passan, supra note 85; Weaver, supra note 101.
149
. Passan, supra note 85.
150
. Id.; Weaver, supra note 101.
151
. J.J. Cooper, How Many MLB Draftees Make It to the Majors, BASEBALL
AM. (May 17, 2019), https://www.baseballamerica.com/stories/how-many-mlb-
draftees-make-it-to-the-majors [https://perma.cc/74VV-LTK7] (stating that
between 1981 and 2010, only 17.6 percent of players who were drafted and signed
to a contract ended up playing in Major League Baseball).
152
. Manfred, supra note 5.
153
. Senne v. Commissioner is the colloquial reference to the case actually filed
as Senne v. Kansas City. See Senne v. Kansas City Royals Baseball Corp., 114 F.
Supp. 3d 906, 908 (N.D. Cal. 2015).
154
. Passan, supra note 85.
1182 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
players for League violations of California state wage laws.
155
In doing so, Judge Spero held that players work year-round
while rejecting the recurring League argument that baseball
players are seasonal employees, noting that “[players] are not
students who . . . perform services, without compensation, as
part of the practical training necessary.”
156
Pressure on the
League thus mounted—rationales used to marginalize players
and attempts to normalize their circumstances began to
backfire on baseball’s white-collar ruling class, exemplified yet
again by a commissioner who has mastered the personification
of irony.
Commissioner Manfred, writing to the Senate Judiciary
Committee,
157
claimed that reports of player poverty were
“inaccurate” and justified MiLB working conditions by
suggesting that since many players transition into other
careers by their mid-twenties, their financial woes are
temporary—a claim he poorly illustrated by describing former
Minor League player Harry Marino’s experience as “fairly
typical.”
158
Here, Manfred uncharacteristically found the strike
zone—Mr. Marino does in fact epitomize the MiLB condition.
After retiring from baseball, he became an attorney, the
executive director for the activist nonprofit Advocates for Minor
Leaguers, and a MLBPA lawyer, helping lead the grassroots
effort to unionize thousands of athletes against a multi-billion-
dollar industry and helping negotiate the first CBA in Minor
League history.
159
In fact, Mr. Marino’s Minor League
experience may underscore stronger patterns than Manfred
might care to recognize. The players’ lead attorney in Senne
was Garrett Broshuis, who enrolled in law school after his own
playing career.
160
The author of this Note did the same.
161
155
. Id.
156
. Id.
157
. See supra Section I.A (discussing the Senate Judiciary Committee
investigating effects of baseball’s antitrust exemption).
158
. Manfred, supra note 5.
159
. Id.; MLB to Voluntarily Recognize MiLB players’ Unionization with
MLBPA, ESPN (Sept. 9, 2022), https://www.espn.com/mlb/story/_/id/34557499
/mlb-voluntarily-recognize-minor-league-players-unionization-mlbpa [https://
perma.cc/F7SK-YM43]; see also Hui, supra note 18, at 132 (discussing how
athletes unionize and receive certification by the NLRB, which Mr. Marino helped
facilitate).
160
. Kelly Candaele & Peter Dreier, How Minor League Ballplayers Won a
Union, NATION (Mar. 6, 2023), https://www.thenation.com/article/society/minor-
2024] IT’S PAST TIME 1183
Recent events served a cold reminder to the League: life
comes at you fast. Senne, widespread public criticism in
response to SAPA,
162
and player activism galvanized the path
to unionization, which in turn represents a dramatic shift
toward equitable bargaining opportunities for Minor League
players. Collective bargaining thus offers the promise of better
working conditions and the potential to earn a sustainable
living—opportunities more than appropriate for the on-field
product of the American pastime.
III. OUTFIELD ASSIST: COLLECTIVE BARGAINING
While much of this Note bemoans MiLB exploitation in the
absence of collective bargaining, this Part explores its
transformative power in reshaping labor relations. Collective
bargaining and union representation have “historically been
champions for marginalized workers.”
163
Otherwise stated, for
Minor League players the difference in bargaining power
between the moments preceding unionization and those
immediately following is profound. Before unionization, one
employee’s public dissent might not have caused even the
slightest disruption—but after, the collective voice of several
thousand garners management’s attention. Although it is not
without flaws, collective bargaining remains the most robust
mechanism to balance power between employers and
employees.
Collective bargaining is a cornerstone of modern American
labor, providing a path to parity when employees elect to
unionize in accordance with the NLRA.
164
Enacted in 1935,
this legislation safeguards employee rights to engage in
collective bargaining, form and join labor organizations, and
bargain with management through representatives of their
choosing.
165
The NLRA also safeguards employees against
league-baseball-union-bill-fletcher/ [https://perma.cc/5MSN-WSKJ]; see also
Passan, supra note 85.
161
. Scott Miller, As Minor Leaguers Unionized, One Went to Law School, N.Y.
TIMES (May 9, 2023), https://www.nytimes.com/2023/05/09/sports/baseball/chris-
rowley-mlb-union-law-school.html [https://perma.cc/M457-WENE].
162
. See supra Section II.B.
163
. Hannah Borowski, Union Autonomy and Federal Intrusion, 95 U. COLO. L.
REV. 267, 270 (2024).
164
. 29 U.S.C. § 157; see also Borowski, supra note 163, at 271.
165
. 29 U.S.C. § 157.
1184 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
Unfair Labor Practices (ULPs), whereby employers may not
engage in restrictive or coercive practices in the collective
bargaining process.
166
Employers are also prohibited from
discriminating against workers on the basis of formation,
administration, or membership of a labor organization.
167
This
legal framework provides both parties an effective process that
tends to incentivize cooperation and communication between
the parties so they may reach an agreement.
168
The
applicability of NLRA-mandated collective bargaining to Minor
League Baseball is discussed in Section III.A. Section III.B
covers the process that the parties must engage in to determine
the bounds of the deal, and pitfalls within this framework
governing employer-union relationships are detailed in Section
III.C.
A. Scope of Collective Bargaining
The specific provisions governing the labor relationship in
a CBA are largely dictated by the parties.
169
However, the
NLRA sets parameters for the process to provide a stable and
predictable labor relationship for both sides.
170
And despite the
complexity of collective bargaining, its subject matter can,
reductively, be organized into three descriptive categories:
mandatory, permissive, and illegal.
171
Mandatory subjects of bargaining, which include wages,
hours, and working conditions, are those that the parties are
required to negotiate during collective bargaining.
172
The
presence of mandatory subjects flows directly from the NLRA’s
intent to establish legal restrictions for collective bargaining—
that employees shall be able to organize for the purposes of
166
. Id. § 158(a).
167
. Id.
168
. Douglas E. Ray, Doing Well by Being Good: How U.S. Labor Law
Encourages Employer Good Faith Behavior, 14 INTERCULTURAL HUM. RTS. L.
REV. 229, 248 (2019).
169
. See, e.g., Brent D. Showalter, Technical Foul: David Stern’s Excessive Use
of Rule-Making Authority, 18 MARQ. SPORTS L. REV. 205, 218 (2007).
170
. 29 U.S.C. § 159.
171
. Wolfgang S. Weber, Preserving Baseball’s Integrity Through Proper Drug
Testing: Time for the Major League Baseball Players Association to Let Go of Its
Collective Bargaining Reins, 85 U. COLO. L. REV. 267, 297 (2014).
172
. 29 U.S.C. § 158(d); see also Fibreboard Paper Prod. Corp. v. NLRB, 379
U.S. 203, 210 (1964).
2024] IT’S PAST TIME 1185
bargaining the terms of their employment.
173
The lex loci of
baseball holds that free agency, reserve clauses, and
arbitration are all mandatory subjects of bargaining.
174
These
are often the most crucial subjects regarding employee
workplace conditions, and employers are prohibited from
attempting unilateral implementation of policies or rules
relating to mandatory subjects. As the League discovered in
1994, it can be exposed to ULP liability for doing so.
175
Permissive subjects of bargaining are those that employers
and employees are allowed, but not required, to negotiate.
176
Because neither party is required to negotiate on permissive
subjects, neither party may absolutely demand resolution of
these matters.
177
Permissive subjects include all issues that
are neither prohibited by the NLRA nor applicable law and are
not directly related to wages, hours, and working conditions—
while disputed and fact intensive, permissive subjects can
cover workplace conduct policies and managerial decisions such
as hiring, firing, promotions, and demotions.
178
The derivative
effect of the obligation vacuum on these topics is that
employers can exercise unilateral rulemaking or policy
implementation on permissive subjects without violating the
NLRA.
179
Lastly, illegal subjects of bargaining are those which are
prohibited due to their relationships with relevant federal and
state law.
180
For example, because federal and state laws
prohibit discrimination in employment based on certain
protected characteristics,
181
CBAs cannot include provisions in
violation of these statutes. Other illegal subjects of bargaining
may include agreements that violate labor laws, such as
173
. Mary Kate Bird, Northwestern University: Opening the Door for
Unionization in Collegiate Athletics, 84 UMKC L. REV. 423, 434 (2015).
174
. Broshuis, supra note 4, at 95.
175
. Susan K. Menge, Should Players Have to Pass to Play?: A Legal Analysis
of Implementing Genetic Testing in the National Basketball Association, 17 MARQ.
SPORTS L. REV. 459, 470 (2007); see also Silverman v. Major League Baseball
Player Rels. Comm., Inc., 880 F. Supp. 246, 251–52 (S.D.N.Y. 1995).
176
. 29 U.S.C. § 158(d).
177
. NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349 (1958); see
also Sean P. McCarthy, Bending the Rules to Change the Rule? Was the National
Football League’s Domestic Violence Policy Collectively Bargained for?, 26 MARQ.
SPORTS L. REV. 245, 248 (2015).
178
. McCarthy, supra note 177, at 248–254.
179
. Id. at 245; see also Menge, supra note 175, at 470.
180
. 29 U.S.C. § 158(d).
181
. 42 U.S.C. §§ 1981, 12112.
1186 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
agreements to waive certain rights or protections under the
NLRA.
182
Generally, any negotiations that are prohibited by
federal or state law cannot lawfully be negotiated around
through collective bargaining.
183
So long as workers and
management engage in collective bargaining with proper
respect to each of the three categories of negotiation, the
parties can in fact largely dictate the terms governing their
relationship.
B. The Bargaining Process
At the heart of collective bargaining is the art of
negotiation between employee and management, which directly
shapes the labor relationship between the parties. The CBA is
the agreement contemplated in this process—it details
parameters, terms, and conditions of employment, which, in
addition to mandatory subjects, often includes benefits, dispute
resolution, and conduct provisions.
184
The CBA is enforceable
by the National Labor Relations Board (NLRB), the federal
agency tasked with interpreting and enforcing the NLRA,
which includes overseeing the collective bargaining process.
185
The NLRB also investigates ULP complaints, oversees union
representation elections, and is generally responsible for
ensuring employer and employee adherence to the NLRA.
186
Collective bargaining imposes obligations on both employer
and employee representatives.
187
Both have a duty to bargain
collectively; this duty means that the parties must conduct
meetings and negotiate in good faith about, at a minimum, the
mandatory subjects of bargaining.
188
This duty only obligates
negotiation; while parties cannot refuse to negotiate further,
even after an impasse on a permissive subject, neither party is
required to make concessions or agree to any proposal, even
regarding mandatory topics.
189
If there’s an existing CBA in
182
. What Is a Collective Bargaining Agreement?, SHRM, https://
www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages
/collectivebargainingagreement.aspx [https://perma.cc/MRY7-M3S4].
183
. Bird, supra note 173, at 434.
184
. 29 U.S.C. § 159(a); see also McCarthy, supra note 177, at 245.
185
. Weber, supra note 171, at 296.
186
. 29 U.S.C. § 160.
187
. Id. § 159.
188
. Id. § 158(d).
189
. Id.; see also McCarthy, supra note 177, at 248; Weber, supra note 171,
at 297.
2024] IT’S PAST TIME 1187
force, neither party may make changes to it without good-faith
negotiations.
190
The NLRA further imposes a duty of fair representation on
the union representative, which requires representation of the
bargaining unit without discrimination or bias.
191
The union
must negotiate on behalf of all employees regardless of union
membership, and it must do so fairly and impartially without
discrimination.
192
A union breaches its duty of fair
representation when its behavior regarding any eligible
employee is deemed arbitrary, discriminatory, or performed in
bad faith.
193
If this appears to be an incredibly vague standard,
many agree; critics note that while unions generally act with
the best interests of employees in mind, those interests are
often more beneficial to a smaller percentage of employees and
do not always align with the entirety of the bargaining unit.
194
C. Criticisms of Collective Bargaining
Despite its role as a central mechanism for workers to
secure better wages, benefits, and working conditions,
collective bargaining is imperfect. For instance, the NLRA
affords wide margins to employers to interpret its definition of
“working conditions.”
195
Subjects that may directly affect
wages and hours, although not the topics of wages and hours
themselves, are often argued for and deemed as permissive.
Permissive-subject classification of an issue does not obligate
employers to negotiate, leaving workers with less influence and
making them vulnerable to unequal negotiating dynamics that
affect critical terms of their workplace conditions.
196
Employers
are able to wrench subjects that should be mandatory into the
190
. 29 U.S.C. § 158(d).
191
. Id. § 158(b); see also Right to Fair Representation, NAT’L LAB. REL. BD.,
https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/right-to-fair-
representation [https://perma.cc/6AVB-MD34].
192
. 29 U.S.C. § 158(b).
193
. Williams, supra note 7, at 545.
194
. This criticism is illustrated by the (now elapsed) pre-unionization
possibility that MiLB players could be added to the MLB bargaining unit, but that
there would be a misalignment of interests if done. Cf. Parker, supra note 6, at 31.
195
. McCarthy, supra note 177, at 248–49.
196
. Id. at 249.
1188 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
permissive category under this vague NLRA framework,
197
and
employees find themselves less equipped to bargain on equal
footing regarding issues that really should be mandatory
subjects of bargaining.
198
Because vagueness allows employers to unduly influence
issue-categorization (and thus implement policies unilaterally),
collective bargaining falls short of truly neutralizing employer
supremacy in labor relations. Where there is room for
argument, negotiations too often turn on the depth of the
parties’ pockets.
199
Although employer duties of good faith
somewhat augment undue labor influence, power afforded to
workers by the NLRA has been eroded by both the courts and
the NLRB.
200
While the NLRA was intended to firm up
common ground between workers and management, unions
have had their options for recourse limited—even when
employers commit blatant NLRA violations by making final
demand offers, depressing wages and working conditions, or
refusing to negotiate, leading to work stoppages or even
strikes.
201
On the other hand, unionized workers have found
themselves liable for ULP claims for striking over negotiations
that unquestionably implicate mandatory subjects.
202
And this
is not the only way employers have wrestled deference from the
NLRB and courts over time. Courts have held that it is not a
ULP for employers to permanently replace striking workers,
lock out employees, or even unilaterally change CBAs after a
negotiations deadlock,
203
thereby functionally changing terms
that directly affect mandatory subjects. Worse, employers can
unilaterally act on mandatory subjects if the term is “not
clearly” in the CBA.
204
This leaves workers with only economic
pressure, often in the form of work stoppages, to influence
negotiations, while management may follow impasses by
implementing critical policies or CBA terms that were either
197
. Menge, supra note 175, at 470 (lamenting that wiggle room in testing
policies can be considered permissive subjects of bargaining and therefore be
unilaterally implemented).
198
. See McCarthy, supra note 177, at 249.
199
. Ross & James, supra note 66, at 136 (discussing the unequal distribution
of bargaining power occurring naturally between employee and employer).
200
. Hiba Hafiz, Structural Labor Rights, 119 MICH. L. REV. 651, 683–88
(2021).
201
. Id. at 686.
202
. Id. at 686.
203
. Id.
204
. Id. at 686; see also Weber, supra note 171, at 299.
2024] IT’S PAST TIME 1189
rejected by employees or deemed unclear.
205
Employer
sidestepping of the NLRA’s prohibition on unilateral
implementation
206
can be achieved simply by arguing the
change was not material, substantial, or significant.
207
Even if the parties were on even footing, adversarial
negotiations processes can be time-consuming and expensive,
and CBAs respond poorly to rapidly changing business
conditions. Unions are generally funded by membership dues,
and legal fees can be prohibitively expensive.
208
The failure to
reach an agreement can result in lockouts or strikes,
209
and
CBAs are often inflexible and binding for many years, serving
as barriers for employers to respond to changing business
conditions.
210
This rigidity naturally incentivizes management
to exploit CBA and NLRA loopholes. And because of increased
economic pressure on employers, higher salaries may mean
fewer jobs, and management will almost invariably explore
cost-cutting and other operational changes to offset increased
labor costs.
211
But while these shortcomings hinder the
interests of organized workers, collective bargaining remains a
vital tool for employees to negotiate a better workplace.
Under this new framework, Minor League players have
secured their first-ever opportunity for some measure of self-
determination. With union leadership well aware of the
potential pitfalls in collective bargaining, a bargaining unit
that has shown its willingness to stand up to the League, and
indications that Minor League players are in fact quite
valuable, Minor League players are better positioned than ever
to achieve labor parity.
205
. Weber, supra note 171, at 300.
206
. 29 U.S.C. § 159(a).
207
. Millard Processing Servs., 310 N.L.R.B. 421, 425 (1993).
208
. See Davies, supra note 8, at 338–40.
209
. Ross & James, supra note 66, at 147.
210
. Bradley D. Marianno, Paul Bruno & Kathrine O. Strunk, The Effect of
Teachers’ Union Contracts on School District Efficiency: Longitudinal Evidence
from California, SAGE OPEN 1 (2021).
211
. Major League Baseball has already tied player working conditions to
other cost-cutting measures. See Brittany Ghiroli, Three-Year Study Proposes
$35,000 Minimum Salary for All MiLB players, ATHLETIC (Apr. 8, 2022), https://
theathletic.com/3231377/2022/04/08/three-year-study-proposes-35000-minimum-
salary-for-all-minor-league-players [https://perma.cc/CVR6-US5J].
1190 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
IV. PROJECTED STARTERS: MINOR LEAGUE CONSIDERATIONS
An employer will, in many cases, get “the union it
deserves.”
212
While other groups of athletes have unionized
merely to formalize a labor relationship, MLB bosses’ decades-
long dehumanization of their workforce ignited a highly
motivated, highly publicized grassroots labor movement.
213
The déjà vu from lessons unlearned half a century ago is
astonishing, and the initial CBA reflected player influence and
motivation—the deal was not ratified by players until the last
week of March, just weeks before the 2023 season opened.
214
While labor equality is still in its infancy in Minor League
Baseball, this Part examines the nascent labor dynamics
between players and the League. Issues regarding the
composition of MiLB’s bargaining unit are discussed in Section
IV.A. Section IV.B covers MiLB players’ ongoing antitrust
challenges. And the MLBPA’s proven track record, alongside a
valuable example of another minor-league sports union aid
Section IV.C in contending that player interests are supported
by precedent.
A. A Large and Transient Workforce
Minor League players now constitute the largest unionized
workforce in American professional sports,
215
surpassing the
combined totals of the NFL, NBA, NHL, and MLB.
216
But this
creates a challenge. As in Minor League Baseball, where a
212
. Davies, supra note 8, at 346.
213
. See Pannullo, supra note 6, at 465.
214
. Minor League Players Overwhelmingly Approve Historic First Collective
Bargaining Agreement, supra note 14.
215
. Bargaining units in the four major American men’s sports total, broken
down as follows: the NFLPA represents approximately 2,000 players, the NBPA
represents 450 players, the NHPA represents 700 players, and the MLBPA
represents 1,200 players. NFL Players Inc., NFLPA, https://nflpa.com/about
/players-inc [https://perma.cc/57NM-YV7L]; Overview & History, NBPA, https://
nbpa.com/about [https://perma.cc/FTP3-6GTD]; Michael Russo, Misunderstood
NHLPA Vote: Many Hurdles Remain Before Next Vote on Return to Play,
ATHLETIC (May 25, 2020), https://theathletic.com/1835486/2020/05/25
/misunderstood-nhlpa-vote-many-hurdles-remain-before-next-vote-on-return-to-
play [https://perma.cc/8MLT-U86M]; Pannullo, supra note 6, at 444; see also
Christopher Deubert, Unionization of Minor League Baseball Presents Interesting
Issues, JD SUPRA (Sept. 27, 2022), https://www.jdsupra.com/legalnews
/unionization-of-minor-league-baseball-8785121 [https://perma.cc/76JB-TPGD].
216
. Deubert, supra note 215.
2024] IT’S PAST TIME 1191
relatively large workforce generates relatively little revenue
compared with the Major Leagues, securing higher wages and
benefits is complicated by the argument that higher wages are
not supported by league revenues.
217
While a fallacy,
218
this
argument is often copy-pasted by the League in support of
depressed player wages.
219
In contrast, an accurate valuation
of the MiLB player pool tells a different story and calls for
significant pay increases for players.
220
MLB leadership has justified worse benefits and working
conditions by arguing that players are transient, moving in and
out of the job in a relatively short time period.
221
This circular
reasoning disregards the well-documented fact that Minor
League careers have been truncated primarily by a lack of
proper wages and benefits.
222
Moreover, the argument
generalizes all players based on data reflecting the status
quo—the fact that given these conditions, few players see
viable long-term careers solely within the Minor Leagues. Of
course this is true: Minor League players are always trying to
play their way out of Minor League Baseball and into the Big
Leagues. The League therein fails to realize that its argument
is self-incriminating. Perhaps if the working conditions in
Minor League stadiums around the country weren’t so
dreadful, players would be able to build meaningful baseball
careers even if they never make it to the Big Leagues, and the
profession wouldn’t be so volatile.
223
Here, better pay, benefits,
and working conditions may carry the potential to prolong
careers, limit transience, and reduce instability within the
Minor League bargaining unit.
224
217
. Sergei Klebnikov, Minor League Baseball’s Most Valuable Teams, FORBES
(July 8, 2016, 11:11 AM), https://www.forbes.com/sites/sergeiklebnikov/2016/07/08
/minor-league-baseballs-most-valuable-teams [https://perma.cc/34JK-3YYJ].
218
. See infra Part V.
219
. Manfred, supra note 5.
220
. See infra Section V.A.
221
. Manfred, supra note 5.
222
. See Senne v. Kansas City Royals Baseball Corp., 114 F. Supp. 3d 906
(N.D. Cal. 2015).
223
. Candaele & Dreier, supra note 160 (noting players hoarding clubhouse
food, couch-surfing, taking on personal debts, or even experiencing homelessness
to survive Minor League Baseball).
224
. Andrew P. Osborn, Down to Their Last Strike: How the MLB Antitrust
Exemption Has Hurt MiLB Players’ Salaries and Why It Is Up to Them to Fight
Back, 47 J. CORP. L. 259, 273 (2021).
1192 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
In the interim, and even somewhat in perpetuity, the
MiLB bargaining unit will change frequently.
225
But this is not
a unique challenge. Many large U.S. workforces are also
inherently transient,
226
and many have bargaining units easily
outnumbering Minor League players.
227
Even in those
workforces, turnover is a non-issue; many unions, notably
Service Employees International and Teamsters, successfully
negotiate labor terms in industries with much larger and more
dynamic labor forces than Minor League Baseball.
228
The MiLB bargaining unit size and transience may not
itself be a collective bargaining issue, but it threatens to
impinge MLBPA efforts to combat MiLB contraction. The
League has long linked the prospect of higher wages with fewer
MiLB affiliates.
229
And while cutting specific Minor League
affiliates does not directly affect players assigned there
temporarily, there’s no way to avoid the fact that contraction
shrinks the labor market. Understandably, concerns over fewer
job opportunities contributed to player hesitation to unionize,
and they remain a current concern for Minor League
players.
230
Although the League has signed agreements with its
affiliates that provide temporary protection against contraction
until 2030,
231
the agreements are likely only a temporary
stop.
232
In 2023, more Minor League prospects made their
MLB debuts than ever before, and more MLB players
categorized as “prospects” played in the Big Leagues than ever
before. It’s easy to point to these numbers as early Club efforts
to streamline player development for future attempts to
225
. Deubert, supra note 215.
226
. Rakesh Kochhar, Kim Parker & Ruth Igielnik, Majority of U.S. Workers
Changing Jobs Are Seeing Real Wage Gains, PEW RSCH. CTR. (July 28, 2022),
https://www.pewresearch.org/social-trends/2022/07/28/majority-of-u-s-workers-
changing-jobs-are-seeing-real-wage-gains [https://perma.cc/4KKW-AUQZ] (listing
several service industry sectors as experiencing “relatively elevated” industry
departures by employees).
227
. The Largest Labor Unions in the US, WORLDATLAS, https://
www.worldatlas.com/articles/the-largest-labor-unions-in-the-us.html [https://
perma.cc/7CVL-SY24].
228
. Id.
229
. Id.
230
. Ulm, supra note 96, at 244–45.
231
. Normandin, Hubris, supra note 9.
232
. Ulm, supra note 96, at 245; see also Parker, supra note 6, at 46.
2024] IT’S PAST TIME 1193
contract the MiLB labor pool.
233
Contraction is unlikely to
happen soon—it is addressed in the CBA and affiliate
agreements
234
—but the League has fewer affiliates in its
sights, implicating job security for future Minor League
players.
235
Aided by financial might and antitrust immunity,
the League poses a threat to again collude via horizontal
agreement among its Clubs to shrink Minor League Baseball
and depress competition.
236
B. Antitrust and Statutory Considerations
While collective bargaining does much to address many of
the labor issues for Minor League players, it does not repeal
SAPA or eliminate the MiLB antitrust exemption. However, its
provisions can mitigate the practical effect of both. Carefully
framing issues implicating antitrust and SAPA as mandatory
subjects of bargaining is especially important in forcing the
League to negotiate.
237
While unionized players contracted around SAPA’s impact
on wages by negotiating salaries well above minimum wage,
238
the Minor League federal antitrust exemption persists, and the
parties agreeing on how to restrict the labor market during
collective bargaining creates a non-statutory labor
exemption.
239
This means the matters “that the parties were
required to negotiate collectively” are also exempt from federal
antitrust law.
240
Minor League Baseball’s sui generis antitrust
exemption remains,
241
which means players must be cautious
around a few issues, including decertifying the MLBPA and
future MiLB contraction. However, there is reason to believe
that baseball’s general antitrust immunity is in its death
throes. Other than the League itself, baseball’s common law
233
. Jonathan Mayo, We’ve Seen a Record Number of Top 100 Prospects in
MLB This Year. Why?, MLB (Sept. 15, 2023), https://www.mlb.com/news/record-
setting-number-of-top-100-prospects-in-mlb-2023 [https://perma.cc/Y27Y-FQXB].
234
. Normandin, Hubris, supra note 9; Drellich, supra note 2.
235
. See infra Part V.
236
. Petition for Writ of Certiorari at 13, Tri-City ValleyCats, 144 S. Ct. 389
(No. 23-283).
237
. Showalter, supra note 169, at 218.
238
. John Brucker, (Screw) America’s Pastime Act: The Mirage of Sapa &
Minor League Baseball Wages, 51 SETON HALL L. REV. 517, 518 (2020).
239
. Deubert, supra note 215; see also Gerba, supra note 28, at 2394.
240
. Brown v. Pro Football, 518 U.S. 231, 250 (1996).
241
. Deubert, supra note 215.
1194 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
antitrust exemption has “practically no supporters”
242
among
judges and scholars, and the Supreme Court has held that
stare decisis has “less-than-usual force” regarding matters of
the Sherman Act.
243
Regardless of how long the exemption
lasts, players now able to negotiate how the labor market may
be restricted can mitigate its effects with careful CBA
construction with the help of the MLBPA.
C. MLBPA and PHPA: Two Major Precedents for Minor
League Interests
Minor League players don’t just benefit from newfound
NLRA protection; they’re also able to model the successes of
their own representative, as well as another minor-league
union.
244
For this, players can look to the work of both the
MLBPA and the Professional Hockey Players Association
(PHPA).
The MLBPA is a powerhouse union whose impact on
baseball is often understated.
245
The MLBPA has a half-
century long track record of negotiating effective labor
agreements on the MLB side that are now directly applicable to
MiLB negotiations.
246
Therefore, considering the overlap
between Major and Minor League considerations, optimism
about achieving more equitable labor terms more easily than
the late 1960s might not be so naïve.
247
And to put it on ice, the
PHPA’s work offers a valuable blueprint for balancing player
compensation and autonomy in a way that benefits both
players and management.
248
Indeed, nowhere has this been
executed more symbiotically than in professional hockey.
249
The PHPA is not only the first-ever American minor-
league union—it’s also the oldest players association in the
United States,
250
serving as the union representative for
242
. Petition for Writ of Certiorari at 3, Tri-City ValleyCats, 144 S. Ct. 389
(No. 23-283).
243
. Kimble v. Marvel Ent., 576 U.S. 446, 461 (2015).
244
. Pannullo, supra note 6, at 469.
245
. Hui, supra note 18, at 127.
246
. See supra Part I.
247
. See supra Section I.A.
248
. FUNDAMENTALS OF SPORTS LAW § 18:3; Hui, supra note 18, at 130;
Axelrod, supra note 12, at 505.
249
. Pannullo, supra note 6, at 469–71.
250
. While the MLBPA was formed in 1954, it didn’t become effective until
1968. The PHPA and the NHLPA were formed in the same year, although the
2024] IT’S PAST TIME 1195
hockey players playing for MiLB-like affiliates of the National
Hockey League (NHL) since 1967.
251
The PHPA has negotiated
higher wages, better benefits, and established career programs,
enabling players to build careers.
252
Compare this with MiLB
players’ gamble on a slim chance of making it to the League—a
gamble where sacrifices too often outweigh the rewards.
253
The
PHPA has also implemented a career-enhancement program
for its players to great success. Each year, the NHL pays for
career-development programs for dozens of its players,
including academic courses and firefighter training.
254
Just
like MLB Clubs, NHL teams also pay minor league salaries—
and although the NHL earns less than half of the revenue the
League generates,
255
it pays players more. Players in the
American Hockey League, hockey’s equivalent of Triple-A
baseball,
256
make a minimum salary of $50,000 per season and
earn an average of $118,000.
257
Compare those numbers with
pre-unionized Triple-A salaries as low as $11,000.
258
Despite
shelling out higher wages, the NHL’s minor-league affiliates
have enjoyed higher franchise values,
259
and NHL franchises
themselves have appreciated an average franchise-valuation
increase of more than 10 percent a year.
260
The fact that higher
wages can work for both athlete and management is thus
PHPA preceded the NHLPA. Additionally, although the NBA G League unionized
in 2020, this union is still in its early formation stages and is not yet well-
established. See Pannullo, supra note 6, at 466.
251
. Hui, supra note 18, at 130.
252
. Id.
253
. Axelrod, supra note 12, at 505–06.
254
. See Marc Normandin, Why Minor League Baseball Players Haven’t
Unionized, SB NATION (June 5, 2018, 11:00 AM), https://www.sbnation.com/mlb
/2018/6/5/17251534/mlb-draft-minor-league-baseball-union-phpa [https://perma.cc
/U49Y-5UPT] [hereinafter Normandin, Haven’t Unionized].
255
. McDowell, supra note 16, at 17.
256
. Triple-A is the highest level of baseball in the Minor Leagues. See supra
Section I.C.
257
. Normandin, Haven’t Unionized, supra note 254.
258
. Weaver, supra note 101. It is also notable that NBA G League players,
who unionized in 2020, enjoy a minimum salary of more than $40,000, and the G
League minimum has increased more than 15 percent in the past two years. Luke
Adams, NBA G League Salaries Increase for 2022/23, HOOPS RUMORS (Nov. 3,
2022, 7:52 AM), https://www.hoopsrumors.com/2022/11/nba-g-league-salaries-
increase-for-2022-23.html [https://perma.cc/ZYC2-XBQ8].
259
. Hui, supra note 18, at 130.
260
. 2022 NHL Franchise Valuations Ranking, SPORTICO (Nov. 1, 2022),
https://www.sportico.com/feature/nhl-team-values-ranking-list-1234693065
[https://perma.cc/2SBJ-UJK8].
1196 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
demonstrated,
261
but the League knows this; the premise’s
truthfulness has been piling up in Club bank accounts since
1968.
262
In any event, the PHPA-NHL relationship is evidence
that the path to equitable terms in MiLB CBAs—in which
players and executives both benefit long term—is
achievable.
263
It's past time for improved working conditions in the Minor
Leagues. The CBA’s still-wet ink has set the stage for future
players to call the note on debts owed.
264
And although
negotiations will perpetually present uncertainties and
challenges, the PHPA offers a guiding standard, and the
MLBPA’s experience and resources can be invaluable in
attaining meaningful improvements in labor terms for Minor
League players.
V. FAIR PLAY: THE CASE FOR AN EQUITABLE DEAL
“Yesterday’s price is NOT today’s price!”
— Joseph “Fat Joe” Cartagena
265
Minor League players overwhelmingly ratified the first-
ever MiLB CBA on March 31, 2023,
266
and Club owners
approved it in the following days.
267
While such a sentence
would have been laughable just a few years ago, the CBA
comprehensively codifies various facets of player employment,
especially noteworthy during such a transformative period.
Among these developments, the CBA addresses wages,
housing, benefits, job security, player conduct, resources and
facilities, and player offseason support.
268
However, because
the players negotiated these important issues against the
framework of the pre-unionization workplace—a setting
261
. Hui, supra note 18, at 130.
262
. See supra Section I.A; Hui, supra note 18, at 130.
263
. See generally infra Part V.
264
. Bird, supra note 173, at 437–38.
265
. PUSHA T, Diet Coke, on IT’S ALMOST DRY (Def Jam Recordings 2022).
266
. Minor League Players Overwhelmingly Approve Historic First Collective
Bargaining Agreement, supra note 14.
267
. Drellich, supra note 2; see also MLB Approves First Contract for Minor
League Players, supra note 145.
268
. Drellich, supra note 2.
2024] IT’S PAST TIME 1197
prohibitive to achieving real parity—a truly fair deal remains
elusive.
A. The Deal
The CBA represents a tectonic shift in bargaining power
that will surely reverberate into future CBAs, and it also
contains important provisions that will contour the career of
today’s MiLB player. In it, the League agreed not to reduce the
number of MiLB affiliates for the duration of the five-year
deal.
269
All MLB affiliates must comply with heightened
facility standards.
270
The reserve clause was shortened from
seven to six seasons for players entering professional baseball
who are nineteen or older, encompassing almost all draftees
signed out of college.
271
While the drug policy was previously
governed solely by the League, it will now be jointly
administered by the League and the MLBPA.
272
Players are
now entitled to due process and an impartial arbitrator for
workplace dispute resolution, accusations of domestic
misconduct,
273
violations of the gambling and drug policies,
contract disputes, and discipline for off-field conduct.
274
After
previously having no such rights,
275
players are now entitled to
the rights from their name, image, and likeness (commonly
referred to as NIL).
276
Healthcare coverage is expanded to
include dental, vision, and dependent healthcare, and players
who lose their jobs now have extended healthcare options after
termination.
277
The pension plan, which previously required
five years’ service to be eligible, is replaced with a 401(k) plan
that players are eligible for immediately.
278
Lastly, the CBA
269
. Id.
270
. Id.
271
. Id.
272
. Id.
273
. This means that accusations of domestic violence are bargained for and
the policy is jointly administered, with disputes heard by a neutral arbitrator. See
id.
274
. Id.
275
. Minor League Uniform Contracts provided no player rights to their name,
image, or likeness, and instead afforded all such rights to their Club. Christopher
R. Deubert, Labor & Employment Law Guidance for Professional Sports Teams,
32 MARQ. SPORTS L. REV. 359, 395 (2022).
276
. Drellich, supra note 2.
277
. Id.
278
. Id.
1198 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
addresses one of the most important issues in the years leading
to unionization—housing—by taking steps to ensure that
players shipped between cities on a regular basis have proper
accommodations.
279
Perhaps as a consequence of League failures leading to
reports of MiLB homelessness, the League mandated housing
policies after the 2021 season.
280
The policies were then
subsequently included in the CBA, setting guidelines slated for
full implementation in 2024, although “reasonable efforts” were
required of Clubs to apply the policy in 2023.
281
Under these
terms, almost all players are guaranteed housing.
282
Players
without such guarantees are generally those high-earning free
agents who possess individual bargaining power to negotiate
club-provided housing into their contracts if desired.
283
The
CBA also sets limitations on the number of beds per bedroom
for housing provided in spring training.
284
Clubs are now
prohibited from assigning players housing with host
families.
285
Housing locations must be reasonable and
commutable,
286
and players are able to refuse accommodations
and instead receive a Club stipend that must approximate local
housing costs.
287
Although the CBA addresses many housing issues, the
deal still falls short regarding player privacy. Clubs are
permitted to conduct room inspections at employee homes and
can set policies prohibiting pets and guests,
288
raising
questions as to how League inspections implicate state laws
requiring notice prior to landlord entry.
289
Players still
frequently share rooms, and the “family-friendly” housing
option isn’t quite so friendly to families;
290
familial
279
. Id.
280
. Bird, supra note 173, at 444; see also Drellich, supra note 2.
281
. Drellich, supra note 2.
282
. Id.
283
. Id.
284
. Id.; see also MLB Approves First Contract for Minor League Players, supra
note 145.
285
. Drellich, supra note 2.
286
. Id.
287
. Id.; MLB Approves First Contract for Minor League Players, supra
note 145.
288
. Drellich, supra note 2.
289
. See generally Ann O’Connell, State Laws on Landlord’s Access to Rental
Property, NOLO (Nov. 9, 2023), https://www.nolo.com/legal-encyclopedia/chart-
notice-requirements-enter-rental-29033.html [https://perma.cc/25GA-YRGA].
290
. Id.
2024] IT’S PAST TIME 1199
accommodations do not guarantee private housing, only
separate sleeping spaces. As a result of these policies, players
with spouses and children may still be forced to live in shared
accommodations with people that they may not trust or even
know.
291
This arrangement constitutes a constructive invasion
of privacy,
292
where inspections without proper notice,
regulating visitors, or forcing families to share living spaces
with strangers infringes upon employee autonomy and
dignity.
293
In the absence of CBA or judicial resolution of these
issues, housing for many will continue to feel transitory and
uncomfortable. Housing provisions that are both more flexible
and comprehensive are necessary here—player security and
privacy, specifically for those with families, depends on it.
In more ways than one, the pursuit of parity persists. The
CBA implements a salary cap restricting high-earning MiLB
free agents,
294
and free agency is still difficult to reach. Though
the CBA truncated contract lengths, it did so only by one year
and only for some players—so it’s still possible to spend as
many as sixteen years with one Club before reaching free
agency.
295
The League has the authority to trim roster sizes
beginning in 2024, restricting the number of opportunities for
players to enter and develop in professional baseball.
296
Players must bring wage and hour disputes through
arbitration rather than in the courts, which could inhibit future
labor progress achieved via litigation, as in Senne.
297
And if, as
291
. Id.
292
. Employees have a reasonable expectation of privacy in their homes, even
when that housing is provided by their employers. Privacy protections, while
generally less robust against private actors compared with governmental
intrusion, are only so because often employees have a “range of choice among
landlords, employers, vendors, and others with whom they deal.” This is not the
case in the MiLB employee-employer relationship, where employees have no
choice among any of the three. See Cristina Mathews, Unlocking the Farmhouse
Gate: The California Case for Access Rights for Farmworkers Living in Employer-
Provided Housing, 40 BERKELEY J. EMP. & LAB. L. 443, 473–74 (2019); see also
Katz v. United States, 389 U.S. 347, 350–51 (1967) (holding that while the Fourth
Amendment protects individuals against governmental intrusion, its protections
go much further).
293
. See Michele Estrin Gilman, The Class Differential in Privacy Law, 77
BROOK. L. REV. 1389, 1401 (2012).
294
. Drellich, supra note 2.
295
. Id.
296
. Id.
297
. Id. Player access to justice in the courts, however, is not completely
foreclosed by a commitment to arbitration under the CBA. See generally
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).
1200 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
Commissioner Manfred claims, most players spend relatively
little time in professional baseball before going on to other
careers,
298
the absence of any meaningful career-development
program in the CBA is noteworthy. Baseball players, whose
profession also requires a high degree of skill not directly
transposable to many other careers, could surely benefit from a
program similar to the one adopted by the PHPA.
299
Although the CBA’s provisions do much to signify a step
away from the pre-unionized MiLB workplace, lingering issues
remain largely as a function of the backdrop framing
negotiations. Nowhere in baseball’s labor landscape is this
more evident, nor more important, than player wages. While
appearing wholly different when compared to pre-unionized
salaries, player compensation still fails to truly reflect the
resources, skill, and commitment required of tomorrow’s MLB
player and what that player is really worth to the League even
while playing in the Minor Leagues.
B. Player Compensation: Who Benefits from the Big-
Leaguers?
Ostensibly the most objectionable subject of pre-unionized
Minor League working conditions was that of player wages,
300
and from player perspectives, distancing salaries from poverty
was prioritized—and to a degree, achieved—in CBA
negotiations. But, to an extent, higher compensation for
players should be a target for both employee and employer; in
sports, the assumption that only athletes benefit from wage
increases is a fallacy.
301
Evidence from minor league hockey
demonstrates this.
302
Despite increased payroll costs, players
with financial bandwidth to live and train instead of working
second jobs or driving Uber are healthier, more productive, and
more profitable.
303
It’s a simple principle—an athlete who has
the resources necessary to live and train properly will, in the
aggregate, be in better shape and more resistant to injury. And
298
. Manfred, supra note 5.
299
. Pannullo, supra note 6, at 449.
300
. See generally supra Section I.C.
301
. 2022 NHL Franchise Valuations Ranking, supra note 260; Hui, supra
note 18, at 130; see also supra Section I.A for a discussion on the correlation
between higher wages, competitive labor markets, and League financial health.
302
. See supra Part IV.
303
. Ghiroli, supra note 211.
2024] IT’S PAST TIME 1201
healthy athletes cost a lot less money: in 2019, MLB Clubs
spent more than $318 million paying the salaries of injured
pitchers—for perspective, pitchers make up less than half of all
players.
304
The 2023 MiLB CBA acted swiftly to elevate wages
which will in turn provide MLB Clubs with better-resourced
athletes. Predictably, however, player salaries still fail to
reflect both their present values and the value of the talent
subsidization enjoyed by the League.
Because wages are a mandatory subject of collective
bargaining and must be negotiated in good faith,
305
the
MLBPA pressed the League and salaries boomed across the
board. At every level of the Minor Leagues, minimum salaries
at least doubled.
306
Players in the lower levels enjoyed the
highest increases; rookie league minimums jumped from
$4,800 to $19,800, a 312.5 percent increase.
307
The MLBPA
also set a valuable precedent that wages for baseball players
must not only reflect the value of their employment but also
account for the fact that they are not seasonal nor gig
workers.
308
The CBA codified this necessity—Minor League
players will now be paid smaller portions of their paychecks
during the offseason, but will receive pay year-round.
309
While
these are important advances of player interests, don’t be
fooled by the frequency of the direct deposit or gaudy
percentage increases in player wages. The chasm between pre-
unionization wages and those negotiated in the 2023 CBA are a
much clearer representation of past abuses by the League than
they are evidence that new player wages are fair per se. Minor
League players still do not receive additional compensation for
304
. See Josh Myers, The Cost of Pitching Injuries, DVS BASEBALL (Nov. 18,
2022), https://www.dvsbaseball.com/articles/the-cost-of-pitching-injuries [https://
perma.cc/FA9Q-M2FJ].
305
. 29 U.S.C. § 158(d).
306
. Specifically, annual minimum salaries have been raised as follows: Rookie
or Complex League players now earn $19,800, a substantial increase from the
previous $4,800. Players in Low A leagues now receive $26,200, up from $11,000,
while those in High A leagues earn $27,300, also up from $11,000. Double A
players are now compensated at $30,250 annually, compared to the previous
$13,800. Triple A players have seen the largest raise at the lowest percentage
increase, with an annual salary of $35,800, up from $17,500. See Drellich, supra
note 2.
307
. Id.; see also MLB Approves First Contract for Minor League Players, supra
note 145.
308
. See Pannullo, supra note 6, at 462.
309
. Drellich, supra note 2.
1202 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
playoff qualification,
310
which would both incentivize player
development and cultivate winning Club cultures. In contrast,
minor league hockey players can receive as much as $20,000
for making the playoffs.
311
Much improvement is needed, and
no matter the lens through which player compensation is
examined, it still is not enough.
In the 2023 CBA negotiations, each party’s methodology
for calculating salary amounts remains unclear, but it wasn’t
determined by the hour. Calculating player wages on the basis
of time has proven to be inefficient at best, and predatory at
worst.
312
Even if fair, the value of players paid by the hour is
difficult to quantify.
313
So while it’s likely that the negotiations
focused largely on League costs per player and thresholds
allowing players to generally be free from having to work non-
baseball offseason jobs, the reality is that the conversation
should look altogether different.
314
Minor League players, as
the primary product of an entire industry and the entire future
product of a much larger one, should be paid not only for their
present services but also for their intrinsic value as they
subsidize the League’s costs to develop its future labor pool.
While data post-COVID have not been made available,
2019 revenues in Minor League Baseball were $864 million.
315
Since then, the League has lamented increasing costs while
cutting ties with 25 percent of its worst-performing affiliates in
310
. Mark Stanton, ”Juuuussst A Bit Outside”: A Look at Whether MLB
Owners Can Justify Paying Minor Leaguers Below Minimum Wage Without
Violating the Fair Labor Standards Act, 22 JEFFREY S. MOORAD SPORTS L.J. 727,
746 (2015).
311
. Normandin, Haven’t Unionized, supra note 254.
312
. Hui, supra note 18, at 126–27; see also Evan Drellich & Daniel
Kaplan, Judge Rules Minor League Players Are MLB Employees Throughout Year
and Are Owed Damages, ATHLETIC (Mar. 15, 2022), https://theathletic.com
/3188098/2022/03/15/judge-rules-minor-league-players-are-mlb-employees-
throughout-year-and-are-owed-damages [https://perma.cc/N9QH-T9MC]; Brucker,
supra note 238, at 529.
313
. Daniel Sparks, Swing and a Miss: Why Congress Is Missing the Mark on
Their Latest Proposed Legislation, 51 J. MARSHALL L. REV. 613, 623 (2018).
314
. MORE THAN BASEBALL, supra note 91, at 8.
315
. Major League Baseball claims that 89 percent of this revenue went
toward operating expenses. Interestingly, despite reporting MLB revenues of
$10.8 billion in 2022, Major League Baseball did not disclose operating expenses
or net revenues. See Niesen, supra note 41; MLB Sets New Record for Revenue
with over $10.8B, SPORTS BUS. J. (Jan. 12, 2023), https://
www.sportsbusinessjournal.com/Daily/Issues/2023/01/12/Leagues-and-Governing-
Bodies/mlb-record-revenue.aspx [https://perma.cc/5ACG-LVGT] [hereinafter MLB
Sets New Record for Revenue].
2024] IT’S PAST TIME 1203
lower leagues and, presumably, plans to shrink MiLB rosters to
165 players per Club.
316
Yet as demonstrated in minor league
hockey,
317
higher player wages bears no correlation with
diminishing franchise values.
318
This is especially true
considering other solid economics—Minor League affiliate
values have both soared and proven to be recession-proof in
recent years.
319
And although the League claims that Minor
League Baseball is not profitable, and that it spends much
higher portions of its MiLB revenues on operating costs than
other sports leagues, neither its yearly expenditures nor profits
come close to accounting for the future value it derives from its
exclusive access to the MiLB labor pool.
While high operating expenses are a real consideration,
correlating wages solely with expenses in the Minor Leagues
both undervalues the players and ignores the cost-effective
source of the entire MLB talent pool: Minor League players.
With few exceptions, everyone in the history of the sport has
first played in the Minor Leagues. Only twenty-three drafted
players, ever, have gone straight to the Major Leagues.
320
So,
whereas MiLB operating costs may be relatively high when
compared with MiLB revenue, the assertion that its players’
salaries are not supported by the business model nonsensically
ignores the fact that MiLB labor subsidizes the cost of exclusive
access to 100 percent of the future MLB labor pool, and it has
done so for more than a century.
321
While this Note will not attempt to model the detailed
economic benefit derived by the League, it is important to note
just how the League taps Minor League Baseball—incurring
expenses fractional to the value it later extracts from that
market. Firstly, MLB owners have established a developmental
labor pool over which the League exercises complete
managerial control, colludes to depress wages, and collects a
profit.
322
Second, the lack of meaningful competition in
American professional baseball means that MLB access to this
316
. Niesen, supra note 41; see also Drellich, supra note 2.
317
. Axelrod, supra note 12, at 506.
318
. Hui, supra note 18, at 130.
319
. McDowell, supra note 16, at 6–7.
320
. Jason Catania, Players to Go Straight from MLB Draft to The Show, MLB
(Sept. 18, 2020), https://www.mlb.com/news/players-who-went-directly-from-the-
draft-to-mlb [https://perma.cc/9RKQ-EGHJ].
321
. See supra Section IV.A.
322
. Niesen, supra note 41.
1204 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
market is both unrestricted and exclusive.
323
The inverse of
this truth is that employees in the labor market, in return,
have no access to plausible alternatives. Over time, this has
greatly skewed bargaining power and led to dehumanizing pre-
unionization labor conditions. It has also padded the pockets of
MLB executives.
324
The League therefore has the power to intentionally
suppress the costs of labor development without fear of losing
players to competitors and brings MLB-ready athletes to the
Major Leagues at minimal expense.
325
Commissioner Manfred
seems not to understand this financial advantage when he
complains that the League subsidizes the Minor Leagues with
hundreds of millions per year.
326
If the League annually
invests millions while—also annually—earning billions in
revenue exclusively from former Minor League players, this so-
called “subsidy” actually appears to be quite a lucrative
investment.
327
In any case, reality again raises an eyebrow to a
Manfred claim. Minor League Baseball operates at a profit,
328
and even if the League does sink $300 million into Minor
League salaries every year, League revenues approaching $12
billion
329
irrefutably signal that its previous investments pay
off at astronomical rates.
330
Even assuming static revenue and
no value added by those who do not make it to the Major
Leagues, as the chart below details, the true value of the MiLB
labor pool that the League has exclusive access to each year is
rather astounding.
323
. See Senne v. Kansas City Royals Baseball Corp., 934 F.3d 918, 923 (9th
Cir. 2019).
324
. McDowell, supra note 16, at 7.
325
. See supra Section I.C.
326
. Brucker, supra note 238, at 528.
327
. MLB Sets New Record for Revenue, supra note 315.
328
. Niesen, supra note 41.
329
. See MLB Revenue Split Versus NFL and NBA, ROYALS REV. (Nov. 4, 2022,
12:00 PM), https://www.royalsreview.com/2022/11/4/23438378/mlb-revenue-split-
versus-nfl-and-nba [https://perma.cc/T7DP-FT75]; see also Andrew Cohen, MLB
Revenue Hits Record $11.6 Billion: Report, HEAVY. (Jan. 19, 2024, 1:59 PM),
https://heavy.com/sports/mlb/sets-revenue-record-11-6-billion [https://perma.cc
/4YSX-RDNW].
330
. Brucker, supra note 238, at 528. For an estimate of League revenue that
additionally accounts for payroll costs, see Boeck, infra note 332.
2024] IT’S PAST TIME 1205
Criteria
Formula
Value
MLB’s Annual Revenue,
per Player
331
$6,800,000,000.00
332
/
780 (Players)
333
$8,717,948.72
Expected Career Revenue
Contribution per MLB
Player
334
$8,717,948.72 * 5.6
years
335
$48,820,512.82
Expected Career Revenue
Contribution per MiLB
Player
336
$48,820,512.82 *
17.6%
337
$8,592,410.26
Return on Investment per
MiLB Player, per Year
338
$8,592,410.26 / 5
years MiLB
339
$1,718,482.51
Total Yearly Value of MiLB
Pool
340
$1,718,482.51 * 4,950
(Players)
$8,506,486,153.84
331
. This value shows the amount of revenue the League earns per Major
League player in a given season, using available data from 2023.
332
. This value, while approximate, accounts for MLB revenue less player
salaries, lending itself to a more accurate estimate of the revenue MLB itself
receives in the course of a season. MLB revenue in 2023 was $11.6 billion, and
combined League payrolls totaled approximately $4.8 billion. See Cohen, supra
note 329; Scott Boeck, MLB Payrolls 2023: Full List of Every Baseball Team from
Highest to Lowest, USA TODAY (Oct. 24, 2023), https://www.usatoday.com/story
/sports/mlb/2023/04/06/mlb-team-payrolls-2023-highest-lowest-mets/11612107002
[https://perma.cc/FNR2-PJ7W].
333
. While more than 1,000 players typically appear in Major League Baseball
over the course of an entire season, on any given day, the total number of active
players is exactly 780 (26 players on the active roster for 30 teams). So, for the
purposes of calculating the how much MLB earns from player labor in the course
of the season, the number 780 more accurately reflects the League benefit from
the on-field product.
334
. This value accounts for the League’s portion of revenue as applied
throughout the average length of a Major League player’s career.
335
. Bijay Gyawali, Average Career Length of MLB Player by Position, MLB
RUN (Apr. 19, 2023, 10:42 AM), https://mlbrun.com/average-career-length-of-mlb
[https://perma.cc/8CE7-6EAS].
336
. This value accounts for the vast majority of MiLB players who don’t ever
play in MLB in showing the expected revenue the League generates in MLB per
MiLB player’s career.
337
. Only 17.6 percent of MiLB players ever play in the Major Leagues; this is
included to ensure that the calculation of expected revenue accounts for and
excludes the vast majority of players who do not contribute to future MLB
revenues. See Cooper, supra note 151.
338
. This value further adjusts the revenue derived by MLB per each MiLB
player by attributing the total value on a per-year basis, assuming the average
MiLB career is approximately five years.
339
. This approximates the time period that MiLB players play in the Minor
Leagues before they either make it to the Major Leagues or transition out of
baseball, although exact numbers are difficult to account for. This metric helps
show a per-year, per-player value of the MiLB player pool. See Emely Garcia, Fair
or Foul: Examining Income Share Agreements in Professional Football and
Baseball, 18 COLO. TECH. L.J. 161, 174 (2020).
340
. This value concludes by showing the per-year value of each MiLB player
multiplied by the total MiLB labor pool. Notably, most estimates show the MiLB
1206 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 95
Even pretending that MiLB business is not in fact
profitable and MLB accounts take a $300 million hit on
operating the league each year, the revenue it generates in the
future from maintaining its $8.5 billion investment will far
exceed the cost. It really is that simple; the League generates
multiple billions of dollars in revenue per year drawing from a
developmental labor force it has complete control over, and
despite Manfred’s attempts to indicate otherwise, Minor
League Baseball pays for itself.
341
If MLB owners are
permitted to derive any benefit at all from the future value of
their developmental league, so should the players who cause
the sport itself to exist.
342
The 2023 season appeared just like all before it, but the
sport has forever changed. Still, accounts are not settled. Minor
League players are, plainly, not compensated fairly with
respect to the value they add to the business, and the League
staunchly refuses to part with a single penny without a fight.
Contracts between MLB Clubs and affiliates, binding through
2030, enhance Minor League players’ bargaining power for fair
wages alongside the 2023 CBA’s agreement against
contraction,
343
and data offers compelling arguments for player
wage increases based on a complete assessment of their market
value. Wages are a mandatory matter in collective bargaining,
affording Minor League players negotiations leverage to
demonstrate and demand proper compensation for their
collective worth.
Collective bargaining has already proven itself an effective
instrument for addressing the many issues facing Minor
League players, and as time passes, effects on the game and its
workforce will become clearer. For true labor equality, there is
bargaining unit totals approximately 5,500 players. However, in the interest of
erring on the side of potential criticism, this value reflects the total number of
players the CBA requires MLB teams to deliver to affiliates beginning in 2024
(165 players for each of 30 Clubs).
341
. Niesen, supra note 41.
342
. One possible way to model the future values of players is as follows: if 15
percent of MiLB players make it to the Major Leagues, those players contribute to
the revenues generated by the League in the future. When initially promoted,
they will make MLB minimum wage. Therefore, the CBA could provide that the
Minor League bargaining unit is entitled revenue sharing percentages equal to 15
percent of all wages paid the previous season to players earning the Major League
minimum. The PHPA has made it work. See Closius & Stephan, supra note 132,
at 103.
343
. Normandin, Hubris, supra note 9.
2024] IT’S PAST TIME 1207
much work to be done. However, through collective bargaining,
Minor League players can recognize the inherent value they
bring to the League well before any of them ever play there,
and armed with this knowledge they are ever-better positioned
to remain unified, advance their interests, and demand the
working conditions that their added value warrants.
CONCLUSION
Management got the union it deserves. Fortunately, so did
Minor League players. But the road ahead remains difficult to
travel for players who may find it difficult to match pre-
unionization motivation and media engagement. That is,
however, exactly what’s needed—failing to maintain pressure
on the League in future CBAs would be akin to throwing away
an umbrella in a rainstorm because it’s now dry underneath.
344
Minor League players must realize that the hard work is just
beginning, and they only need to look to their MLB
counterparts as evidence. The display of unity in MLB
collective bargaining, over time, created leverage and paved the
way for increased competition and more favorable labor
conditions. But even those victories took decades, and MLB
players directly contributing to immediate League revenues
enjoyed greater initial leverage. Minor League players must
show identical resolve and unity; the League is a petty, lawful
cartel with over a century of experience poisoning the quality of
life for its players and the communities it affects while
leveraging athlete popularity to portray an inaccurate economic
picture of the sport. Furthermore, a transient bargaining unit
may encounter more resistance against their demands and be
less willing to engage in work stoppages or strikes. However,
alongside a savvy union representative, a motivated workforce
can remain unified and maximize their leverage and can take
careful steps to ensure that they receive fair compensation and
proper treatment through collective bargaining. Armed with
data and a long history of progress by their Major League
counterparts favoring their own interests, there is reason to
believe they can do so in a fraction of the time it took sixty
years ago. It’s past time.
344
. Cf. Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 590 (2013) (Ginsburg, J.,
dissenting).
