If You're Hurt, Where is Home? Recently Drafted Minor League Baseball Players are Compelled to Bring Workers' Compensation Action in Team's Home State or in Jurisdiction More Favorable to Employers

Marquette Sports Law Review Marquette Sports Law Review

Volume 21

Issue 2

Spring

Article 5

2011

If You're Hurt, Where is Home? Recently Drafted Minor League If You're Hurt, Where is Home? Recently Drafted Minor League

Baseball Players are Compelled to Bring Workers' Compensation Baseball Players are Compelled to Bring Workers' Compensation

Action in Team's Home State or in Jurisdiction More Favorable to Action in Team's Home State or in Jurisdiction More Favorable to

Employers Employers

James T. Masteralexis

Lisa P. Masteralexis

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Repository Citation Repository Citation

James T. Masteralexis and Lisa P. Masteralexis,

If You're Hurt, Where is Home? Recently Drafted Minor

League Baseball Players are Compelled to Bring Workers' Compensation Action in Team's Home State or

in Jurisdiction More Favorable to Employers

, 21 Marq. Sports L. Rev. 575 (2011)

Available at: https://scholarship.law.marquette.edu/sportslaw/vol21/iss2/5

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. For

more information, please contact [email protected].

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IF YOU’RE HURT, WHERE IS HOME?

RECENTLY DRAFTED MINOR LEAGUE

BASEBALL PLAYERS ARE COMPELLED TO

BRING WORKERS’ COMPENSATION

ACTION IN TEAM’S HOME STATE OR

IN JURISDICTION MORE FAVORABLE TO

EMPLOYERS

JAMES T. MASTERALEXIS

& LISA P. MASTERALEXIS

I. INTRODUCTION

In June 2009, Major League Baseball (MLB) unilaterally added two new

clauses to the first year player contract that newly drafted players are required

to sign after they are drafted in the June First-Year Player Draft. The first,

entitled Addendum F, requires players to submit to the jurisdiction of the

home team for workers‟ compensation claims.

Addendum F may also be

James T. Masteralexis is an Assistant Professor of Sport Law in the Department of Sport

Management in the Business School at Western New England College. He received his B.A. in 1984

from the University of New Hampshire and his J.D. in 1989 from Suffolk University School of Law.

Mr. Masteralexis is a certified agent with the Major League Baseball Players Association and

represented Eric Cavers when he played for the Houston Astros.

Lisa P. Masteralexis is an Associate Professor of Sport Law in Department of Sport

Management in the Isenberg School of Management at the University of Massachusetts Amherst.

She received her B.S. in Sport Management in 1987 from University of Massachusetts Amherst and

her J.D. in 1990 from Suffolk University School of Law. Professor Masteralexis is a certified agent

with the Major League Baseball Players Association.

1. Major League Baseball First-Year Player Draft Contract, at add. F [hereinafter Addendum F].

The full text reads

As a material inducement for Club to employ Player‟s services, Player promises and

agrees that any worker‟s compensation claim, dispute or cause of action arising out of

Player‟s employment with Club shall be subject to the worker‟s compensation laws of the

State of _______________ exclusively and not the worker‟s compensation laws of any

other state. Player further agrees that any claim, filing, petition or cause of action in any

way relating to worker‟s compensation rights or benefits arising out of Player‟s

employment with Club, including without limitation the applicability or enforceability of

this Addendum F, shall be brought solely and exclusively with the courts or the Worker‟s

Compensation Board (or such other tribunal or government entity with jurisdiction) of the

State of _______________________.

This addendum shall be void upon the assignment of this Minor League Uniform Player

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used to require a workers‟ compensation claim to be filed outside the club‟s

home state and in a state with laws more favorable to employers.

The second,

Addendum G, paragraph C, requires that, if a minor league player chooses to

use his own physician to perform a medical procedure instead of the team

physician, the minor league player must pay the difference between the team

doctor‟s cost for treatment and the cost of his personal physician‟s care.

These new terms were unilaterally imposed on newly drafted players and

were not negotiated with any union. The Major League Baseball Players

Association (MLBPA) does not represent minor league players, as it only

represents “all Major League Players, and individuals who may become Major

League Players during the term” of the Basic Agreement.

At least one

baseball agent believes that all MLB “clubs were insisting” that Addenda F

and G be signed “in one form or another.”

Rob Manfred, MLB Executive

Vice President of Labor Relations, has stated that that is an “exaggeration” but

that “a number of clubs are using them.”

Addenda F and G were promulgated by MLB, in our opinion, in response

Contract to any other Major League Club or Minor League Club that is not a player

development of Club.

By signing this Minor League Uniform Player Contract and/or this Addendum F, Player

acknowledges that he has read this Addendum F and enters into this Addendum F of his

own free will and choice.

2. Liz Mullen, Clubs Seek Friendly Venues for Workers Comp Cases, SPORTS BUS. J., Aug. 30-

Sept. 5, 2010, at 9.

3. Major League Baseball First-Year Player Draft Contract, supra note 1, at add. G, ¶ C

[hereinafter Addendum G]. The full text reads as follows:

C.With respect to expenses paid by worker‟s compensation insurance or other surgical,

medical or hospitalization insurance policy, if Player uses a physician, dentist or other

medical service provider not designated by Club and incurs expenses greater than that

which would have been incurred by using a Club-designated provider, then player shall

reimburse Club for the excess cost of such medical services. Club shall have the right to

select any medical service provider other than a physician or dentist in the same manner

in which Club has the right to select a physician or dentist pursuant to this Minor League

Uniform Player Contract. Club‟s right to select the place of delivery of professional

services pursuant to this Minor League Uniform Player Contract may include a Club

facility or the facility of another club, if Club is on the road.

By signing this Minor League Uniform Player Contract and/or this Addendum G, Player

acknowledges that he has read this Addendum G, has consulted with the advisors of his

choice or had the opportunity to do so, understands the terms of this Addendum G and

enters into this Addendum G of his own free will and choice.

4. 2007-2011 Basic Agreement, art. II, p. 1 (2007), available at http://mlb.mlb.com/pa/pdf/cba_

english.pdf [hereinafter Basic Agreement].

5. Mullen, supra note 2.

6. See id.

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to Cavers v. Houston McLane Co., Inc.,

a decision of the Maine Supreme

Judicial Court in which Eric Cavers (Cavers), a minor league baseball player

and Maine resident, successfully argued that Maine workers‟ compensation

laws applied to his employer, the Houston McLane Co., Inc., doing business as

the Houston Astros Baseball Club (Astros), a Texas corporation. Furthermore,

Addenda F and G were likely promulgated in an effort to control the cost of

workers‟ compensation for minor league players

and also in response to a

series of workers‟ compensation cases over the course of several years that

were decided in favor of professional baseball players.

This Article will examine the application of workers‟ compensation law to

minor league professional athletes. It will also argue that a minor league

player should be able to bring a workers‟ compensation action in his home

state and should not be compelled to bring the case in the home state of his

employer/team or in another jurisdiction, for example Arizona, where the

workers‟ compensation laws favor the employer.

This Article will also argue

that the imposition of Addenda F and G on minor league players is patently

unfair and may limit the ability of an injured minor league player to obtain

medical benefits. Finally, this Article will conclude by suggesting some

options available to players to address the unjust working conditions imposed

on minor league baseball players.

II. WORKERS‟ COMPENSATION AND PROFESSIONAL ATHLETES

Prior to the enactment of workers‟ compensation laws, if an employee

suffered an injury on the job, he or she would have to bring a civil lawsuit for

negligence in court.

In order to prevail in these cases, the worker had to

prove that the employer was negligent.

It was difficult for the average

worker to win these lawsuits because the employers raised effective legal

defenses, for example, claiming that the worker assumed the risk of the job,

that the worker‟s conduct constituted contributory negligence, or that a fellow

worker‟s negligence caused the injury.

Further, the cost of litigation was

burdensome to an out-of-work employee.

In 1884, the German Compensation Act became the first significant piece

7. Cavers v. Houston McLane Co. Inc., 958 A.2d 905 (Me. 2008).

8. Mullen, supra note 2.

9. Id.

10. Gerald Herz, Professional Athletes and the Law of Workers’ Compensation: Rights and

Remedies in LAW OF PROFESSIONAL AND AMATEUR SPORTS § 17:1 (Gary A. Uberstine & Jeffery K.

Pressman Eds., 2002).

11. MARK A. ROTHSTEIN ET AL., EMPLOYMENT LAW § 7.2 (1994).

12. Id.

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of legislation to eliminate the requirement that the worker prove that the

employer was at fault in order to prevail, and this concept soon spread to the

United States.

In 1902, Maryland established an accident fund for disabled

miners, and in 1909, Montana also passed legislation for miners‟

compensation.

Both of these statutes, however, were declared

unconstitutional.

The states of New York, Iowa, and Washington passed

workers‟ compensation statutes, and these statutes were declared constitutional

by the United States Supreme Court in 1917.

In general, workers‟ compensation laws provide workers protections and

benefits if they are injured on the job, and the laws eliminate the requirement

that the worker prove that the employer‟s negligence caused the injury.

This

no fault system grants benefits for lost wages and medical expenses to workers

and gives most employers immunity against most tort actions.

Workers‟

compensation statutes provide that an injured employee give up his right to

sue his employer in civil court for an injury suffered on the job in return for a

no fault administrative system to determine if the injury was work-related and

grant quick payment of benefits and medical treatment.

A typical workers‟ compensation statute provides an injured worker

66.66% of his average weekly wage if he suffers a work-related injury and is

unable to work.

There are four categories of disability: temporary total

disability, temporary partial disability, permanent partial disability, and

permanent total disability.

The injured worker also receives medical

treatment, and some states allow this treatment to be for life.

In order to be eligible for workers‟ compensation, there has to be an

employer-employee relationship between the parties, which is defined by

statute. In Massachusetts, for example, an employee is defined for workers‟

compensation purposes as “every person in the service of another under any

contract of hire, express or implied, oral or written . . . .”

Massachusetts

excludes some classes of workers from the definition of employee, such as

13. Id. at §7.3.

14. Id.

15. Id.

16. Id.

17. Id.

18. Id.

19. Herz, supra note 10, § 17:1.

20. Id. § 17:5.

21. Id.

22. Id. at § 17:11

23. MASS. GEN. LAWS, ch. 152, § 1(4) (2011).

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seamen engaged in interstate or foreign commerce, salesmen of real estate or

consumer goods who work on a commission, and taxi drivers who lease their

cabs.

In general, professional athletes are considered employees of their

professional teams.

However, some states, including Florida, specifically

exclude professional athletes from the definition of employee in their workers‟

compensation statutes.

In Massachusetts, professional athletes are partially

excluded from the definition of employee. Athletes are included if they are

“persons employed to participate in organized professional athletics, while so

employed, if their contracts of hire provide for the payment of wages during

the period of any disability resulting from such employment.”

In other

words, a professional athlete in Massachusetts is excluded from workers‟

compensation benefits only if his contract calls for him to be paid even though

he is injured and unable to play. However, if the injury to the professional

athlete prevents him from being paid the salary agreed to in his contract or

earning money working at another job during the offseason, he would be

eligible for workers‟ compensation benefits.

An injury must arise out of and be suffered in the course of the injured

person‟s employment.

For a professional baseball player, an example of a

work-related injury would be throwing a ball in a professional game and

ripping or tearing a muscle or ligament in his throwing arm.

As discussed

24. Id.

25. Herz, supra note 10, at § 17:3.

26. Id. See also Stephen Cormac Carlin & Christopher M. Fairman, Squeeze Play: Workers’

Compensation and the Professional Athlete, 12 U. MIAMI ENT. & SPORTS L. REV. 95, 127 (1995) for

a detailed discussion of states that exclude professional athletes from workers‟ compensation statutes.

Recent efforts by some states endeavor to restrict pro athlete access to workers‟

compensation benefits are unwarranted. From its inception, the workers‟ compensation

system has served many desirable goals. Few can object to the desirability of certain,

prompt, and reasonable compensation for occupational injuries. As was clear at the

beginning of the century, this can best be achieved through an administrative remedy,

rather than the slow and costly judicial process. An equally important by-product of this

system is the creation of incentives for employers to improve workplace safety. All of

these objectives are jeopardized by squeezing the pro athlete from workers‟ compensation

coverage. Id. at 126-27.

27. MASS. GEN. LAWS ch. 152, § 1(4)(B) (2011).

28. Many minor league baseball players work second jobs not related to baseball or play winter

league baseball in the Dominican Republic, Venezuela, or Mexico to earn extra money.

29. Herz, supra note 10, at § 17:4.

30. An example of a baseball work-related injury occurred on July 28, 2010 when Stephen

Strasburg of the Washington Nationals was throwing pitches and warming up in the bullpen before a

game. He felt discomfort in his throwing shoulder, was scratched from the starting line-up, and was

placed on the fifteen day disabled list. Strasburg returned to pitch on August 10, 2010 but soon was

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below, this is the type of work-related injury that befell Cavers on June 27,

2004, while he was playing in the minor leagues for the Astros.

III. CAVERS V. HOUSTON ASTROS AND THE APPLICATION OF MAINE‟S LONG

ARM STATUTE

Cavers was a resident of Otisfield, Maine and attended Franklin Pierce

College in New Hampshire on a baseball scholarship.

After his junior year,

he was drafted in the tenth round (the 304th overall selection) of the June 2004

MLB amateur draft by the Astros.

Cavers, a catcher, was assigned to play

for the Astros‟ rookie league team in Greenville, Tennessee. On June 27,

2004, he injured his shoulder during a game when throwing a ball to second

base.

Cavers was placed on the disabled list and received treatment on his

shoulder. He remained with the Greenville Club until the end of the season

and was then sent to Houston to see the Astros‟ team physician, who

recommended six more months of rest and rehabilitation.

During the period

of time that he was injured and unable to play, Cavers received his full minor

league salary, which, at the time, was $900 per month.

As the 2005 season approached, Cavers continued to have pain in his

shoulder.

He sought a second opinion from a doctor in Boston, who

diagnosed him with a torn labrum and advised him to undergo arthroscopic

surgery.

Against the Astros‟ doctor‟s advice, Cavers underwent the surgery

hurt again. On August 27, 2010 the Nationals announced that Strasburg had suffered a significant

tear in his ulnar collateral ligament and that he would undergo “Tommy John” surgery to repair it.

Bill Ladson, Strasburg Likely Headed for Elbow Surgery, MLB.COM, Aug. 27, 2010,

http://washington.nationals.mlb.com/news/article.jsp?ymd=20100827&content_id=13983748&vkey=

news_was&fext=.jsp&c_id=was. Fortunately for Strasburg, he signed a four-year $15.1 million

major league guaranteed contract when he was drafted in June 2009 and did not lose out on any

salary. ESPN News Services, Nats, Strasburg Beat Deadline, ESPN.COM, Aug. 18, 2009,

http://sports.espn.go.com/mlb/news/story?id=4403920.

31. Cavers v. Houston McLane Co., 958 A.2d 905, 908 (Me. 2008).

32. Id. at 907.

33. Id. at 908.

34. Id.

35. Id.

36. Cavers signed the Minor League Uniform Players Contract (MLUPC), which provides,

among other things, that he would receive his full salary if he were injured during the season.

MLUPC, ¶ VIII, B. The MLUPC also provides that, if the minor league player is injured and

receiving his full salary, any workers‟ compensation payments he receives or payment for medical

expenses be turned over to the club. MLUPC ¶ VIII, E.

37. Cavers, 958 A.2d at 908.

38. Id.

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in March 2005.

The Astros did not pay for the surgery.

Cavers

recuperated, was able to play baseball again, and was assigned to the Astros‟

Troy, New York minor league club for the end of the 2005 season.

In 2006,

Cavers played for the Lexington, Kentucky Legends, a Class A affiliate of the

Astros.

The Astros released Cavers after the 2006 season.

None of the

minor league teams that Cavers played for traveled to Maine.

Cavers began working as a carpenter in Maine and received some medical

care for his shoulder in Maine.

Cavers filed a petition for workers‟

compensation benefits from the Maine Workers‟ Compensation Board (Board)

for payment of medical bills, principally for payment of his shoulder surgery,

for which the Astros still had not paid.

The Astros attempted to dismiss the

matter before the Board, claiming that Maine lacked personal and subject

matter jurisdiction.

A Board hearing officer determined that the Board had

personal jurisdiction over the Astros because Cavers was a resident of Maine

when the injury occurred.

The Board awarded payment of medical bills,

including payment for the shoulder operation, but did not order “wage

replacement benefits.”

The Astros appealed the Board‟s award of medical

benefits to the Maine Supreme Judicial Court, claiming that the Board lacked

personal jurisdiction in the case because the Astros were a Texas corporation

and because it could not have anticipated litigating a workers‟ compensation

case in Maine when it drafted and signed Cavers.

The Maine Supreme Judicial Court first held that the fact Cavers had

maintained his residence in Maine was enough to confer subject matter

jurisdiction on the Board over claims for work-related injuries received by the

39. Id.

40. It appears that the basis for the Astros refusal to pay for the operation was in ¶ VIII, C. of the

MLUPC, which allowed the club to select the doctor and hospital that performs medical services on

minor league players. However, the MLUPC does not address the issue of a disagreement between

the minor league player and a team concerning what specific medical procedure, if any, need be

performed. In this matter, Cavers believed that he needed an operation on his shoulder, and the

Astros disagreed, believing that additional therapy and rest would cure his shoulder pain.

41. Cavers, 958 A.2d at 908.

42. Id. at 908-09.

43. Id. at 909.

44. Id.

45. Id.

46. Id.

47. Id.

48. Id.

49. Id. Cavers had been paid his full salary pursuant to MLUPC ¶ VII. B.; see Cavers, 958 A.2d

at 908.

50. Cavers, 958 A.2d at 909.

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employee out of state.

The court next applied the Maine long-arm statute

to determine if the Board had authority over Cavers‟ injury, which occurred in

Tennessee while working for an out-of-state employer, the Texas-based

Astros.

The court held that, by negotiating with Cavers at his home in

Maine and the fact that Cavers signed the contract in Maine, the Astros had

transacted business in the state and was, thus, subject to the court‟s

jurisdiction.

The court continued and stated that the issue of the Board‟s

authority over the Astros must be analyzed according to the due process and

minimum contacts standards set out by the United States Supreme Court.

The court stated that due process is satisfied when “(1) Maine has a legitimate

interest in the subject matter of the litigation; (2) the defendant, by his or her

conduct, reasonably could have anticipated litigation in Maine; and (3) the

exercise of jurisdiction by Maine‟s courts comports with traditional notions of

fair play and substantial justice.”

The Astros did not contest the conclusion of the workers‟ compensation

hearing officer that Maine has a legitimate and substantial interest in “ensuring

that the burden of its residents‟ [work-related] injuries fall upon their employer

rather than upon their communities,”

the first due process element. The

Astros did take issue with the second element of analysis and argued that

Cavers did not meet his burden of demonstrating that the Astros could have

reasonably anticipated litigating a workers‟ compensation case in Maine. The

court held that the Astros had sufficient contact in Maine to anticipate

litigation because the Astros had drafted a Maine resident, the Astros scouting

director traveled to Maine to negotiate with Cavers, and Cavers signed his

Astros contract in the state.

The Maine Supreme Judicial Court cited the United States Supreme Court

51. Id. See also Christiansen v. Elwin G. Smith, Inc., 598 A.2d 176, 177 (Me. 1991).

52. The Maine Long-arm statute states, in relevant part,

Any person, whether or not a citizen or resident of this State, who in person or through an

agent does any of the acts hereinafter enumerated in this section, thereby submits such

person . . . to the jurisdiction of the courts of this State as to any cause of action arising

from the doing of any of such acts:

A. The transaction of any business within this State . . . . 14 ME. REV. STAT. ANN. § 704-

A(2) (2011).

53. Cavers, 958 A.2d at 909.

54. Id.

55. Id. at 909-10 (citing Shaffer v. Heitner, 433 U.S. 186, 212 (1977) and Int‟l Shoe Co. v.

Wash., 326 U.S. 310, 316 (1945)).

56. Id. at 910 (quoting Christiansen v. Elwin G. Smith Inc., 598 A.2d 176, 177 (Me. 1991)).

57. Id. (quoting Christiansen, 598 A.2d at 177).

58. Id. at 913.

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case of Alaska Packers Association v. Industrial Accident Commission of

California

as a basis for its decision. In Alaska Packers, a person living in

California executed an employment contract in California agreeing to work in

Alaska during the salmon-canning season for specified wages and payment of

transportation costs. The employee was injured while working in Alaska.

When he returned to California, he filed a workers‟ compensation claim in

California and received an award for compensation. The United States

Supreme Court held for the worker and noted that

an employment contract that is signed in a state, by a person

living in that state, even if it is to be performed elsewhere,

puts the obligations of the contract within the reach of the

power that the state of residence may constitutionally exercise

without violating the due process clause.

In Alaska Packers, the employment contract contained a clause requiring

that any claim for workers‟ compensation must be brought in Alaska.

California‟s workers‟ compensation law had a provision allowing any

California worker who signed an employment contract in the state to file a

workers‟ compensation claim in California, regardless of whether the injury

occurred “without the territorial limits of this state.”

The Supreme Court

agreed with the application of California law regardless of the employment

contract language.

The Maine Supreme Judicial Court then addressed the third element of the

due process analysis, whether the exercise of personal jurisdiction in Maine

comports with the traditional notions of “fair play and substantial justice.”

The Maine Supreme Judicial Court analyzed the third element using “a variety

of factors including the nature and purpose of defendant‟s contacts with the

forum state, the connection between the contacts and the cause of action, the

number of contacts, the interest of the forum state in the controversy, and the

convenience and fairness to both parties.”

The court held that a minor league player and the team that signs him may

anticipate that he could play a baseball game in “most, if not all, of the fifty

59. Alaska Packers Ass‟n v. Indust. Accident Comm‟n of Cal., 294 U.S. 532 (1935).

60. Id. at 540-42.

61. Id. at 538.

62. Id.

63. Id. at 543-50.

64. Cavers v. Houston McLane Co., 958 A.2d 905, 910 (Me. 2008).

65. Id. at 914 (quoting Labbe v. Nissen Corp., 404 A.2d 564, 570 (Me. 1979)).

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states” in the United States.

The Astros and all other major league teams

have the resources to appear in any state and defend workers‟ compensation

claims. The court acknowledged that former minor league players might have

great difficulty securing benefits in forums far from their home state.

reaching its decision in Cavers, the court quoted the United States Supreme

Court in Alaska Packers:

The probability is slight that injured workmen, once returned

to California, would be able to retrace their steps to Alaska,

and there successfully prosecute their claims for

compensation. Without a remedy in California, they would be

remediless, and there was the danger that they might become

public charges, both matters of grave public concern to the

state.

On October 30, 2008, the Maine Supreme Judicial Court held for Cavers,

a minor league player who had been released after getting injured and who

was now located thousands of miles away from the team that signed him

trying to start a new career. The court held that the fair play and substantial

justice element of the analysis clearly favored Cavers, as he would find it

difficult to pursue a workers‟ compensation remedy in Texas, and affirmed the

Board‟s decision granting the payment of medical expenses.

IV. OTHER MINOR LEAGUE BASEBALL WORKERS‟ COMPENSATION CASES

The Maine Supreme Judicial Court noted other baseball workers‟

compensation cases that had similar facts and outcomes to the Cavers matter.

In Bowen v. Workers’ Compensation Appeals Board,

a California resident

was drafted by the Florida Marlins in 1992 and signed the Minor League

Uniform Player Contract (MLUPC) at his residence in California.

Bowen

negotiated the contract over the telephone with a Marlins scout who also lived

in California. The Marlins mailed the contract to Bowen after the terms had

been agreed to via telephone. Bowen began playing minor league baseball for

the Marlins in 1993 and was assigned to a club in Erie, Pennsylvania. He

played minor league baseball for the Marlins from 1994 to 1996. Bowen

66. Id.

67. Id.

68. Id. (quoting Alaska Packers, 294 U.S. at 542 (emphasis added)).

69. Id.

70. Bowen v. Workers‟ Comp. Appeals Bd., 86 Cal. Rptr. 2d 95, 95 (Cal. Ct. App. 1999).

71. Id. at 97.

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never played baseball in California for the Marlins.

In April 1996, Bowen was injured while pitching in a game in Clearwater,

Florida. He was placed on the disabled list and pitched with discomfort for the

rest of the 1996 season. He was released by the Marlins at the end of the 1996

season.

Bowen applied for workers‟ compensation benefits in California,

and his claim was at first denied by the Workers‟ Compensation Appeals

Board.

However, the California Appeals Court reversed, holding that “an

employee who is a professional athlete residing in California, such as Bowen,

who signs a player‟s contract in California furnished to the athlete here by an

out-of-state team, is entitled to benefits under the act for injuries received

while playing out of state under the contract.”

As the Astros did in Cavers,

the Marlins argued that they were denied due process because there were

insufficient contacts with the State of California to support application of

personal jurisdiction. The appeals court rejected the Marlins argument and

held for Bowen.

In a case decided in 2001, the California Court of Appeals, in New York

Yankees v. Workers’ Compensation Appeals Board, reached the same result on

a workers‟ compensation claim filed by a New York Yankees pitcher, who

was a resident of California but was injured during spring training in Florida.

The respective court decisions in Cavers in 2008, Bowen in 1999, and New

York Yankees in 2001 demonstrate that state courts have developed a strong

trend that minor league professional baseball players will be awarded workers‟

compensation benefits of their home states if the players are not excluded by

statute and they are injured in service to their clubs.

This is particularly

72. Id.

73. Id.

74. Id. at 96.

75. Id. at 104.

76. Id.

77. N.Y. Yankees v. Workers‟ Comp. Appeals Bd., No. D036556, 2001 Cal. Wrk. Comp. LEXIS

4872 (Cal. Ct. App. Jan. 23, 2001).

78. Historically, there have been other cases that have held that workers‟ compensation statutes

apply to professional baseball players. In 1928, in the case of Metro. Cas. Ins. Co. of N.Y. v. Huhn,

142 S.E. 121, 125-26 (Ga. 1928), a Georgia court held that a professional baseball player is covered

under the state workers‟ compensation act. In Bayless v. Philadelphia Nat’l League Club, 472 F.

Supp. 625, 631 (E.D. Pa. 1979), aff’d, 615 F.2d 1352 (3d Cir. 1980), the court held that the

Pennsylvania‟s Workers‟ Compensation Act was the exclusive remedy for a minor league pitcher‟s

injuries. In Texas, in U.S. Fidelity & Guar. Co. v. Indem. Ins. Co. of N. Am., 271 F.2d 955, 956 (5th

Cir. 1959), the court affirmed a district court finding that the Texas workers‟ compensation statute

applies to professional baseball player. However, in 1991, the Texas legislature changed the law and

required professional athletes to elect benefits under workers‟ compensation or their CBAs or their

individual contracts. The goal of this legislation was to “reduce expenses of major league sports

franchises.” House Comm. on Business and Commerce, Bill Analysis, Tex. S.B. 428, 72nd Leg.,

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important to minor league players, as they do not make much money. Typical

minor league players like Cavers, who played Class A baseball, earn about

$1,100 per month from April to September, or $5,500 per year.

In contrast,

the minimum salary for a major league player for the 2010 season was

$400,000.

In addition, a major league player who sustains an injury in a

major league game and is unable to play will receive his full salary less any

payments from workers‟ compensation.

The Cavers, Bowen, and New York

Yankees cases are important because a minor league player simply may not

have the financial resources to litigate a workers‟ compensation case in a

foreign state.

V. THE DRAFT AND ADDENDUM F AND G: BASEBALL‟S RESPONSE TO

CAVERS

From June 9-11, 2009, six months after the Cavers decision forced the

Houston Astros to pay for Cavers‟ shoulder operation and medical treatment,

the 2009 MLB First-Year Player Draft was held. The young men eligible for

the draft are amateur baseball players from the United States, Canada, and

Puerto Rico who have completed high school and college players who have

completed their junior or senior years.

Junior college players can be drafted

regardless of how many years of college they have completed.

Each of the

thirty MLB teams selects amateur players to restock its organization. The

teams draft in “reverse order of their percentage games won at the close of the

preceding championship season.”

There are fifty rounds to the draft,

and

there are additional draft picks awarded to teams that lose type A or type B

major league free agents to other clubs.

In the 2010 First-Year Player Draft,

R.S. (1991). Carlin & Fairman, supra note 26, at 111 n.97.

79. See Minor League Baseball Frequently Asked Questions, MINORLEAGUEBASEBALL.COM,

http://web.minorleaguebaseball.com/milb/info/faq.jsp?mc=milb_info (last visited Feb. 14, 2011).

80. Basic Agreement, supra note 4, § VI(B).

81. Id. § IX(E).

82. See also Rachel Schaffer, Grabbing Them by the Balls: Legislatures, Courts, and Team

Owners Bar Non-Elite Professional Athletes from Workers’ Compensation, 8 AM. U. J. GENDER SOC.

POL‟Y & LAW 623, 628 (2000). Shaffer argues that non-elite athletes, such as minor league baseball

players and particularly women athletes, do not receive adequate workers‟ compensation benefits, and

exclusion of non-elite athletes from workers‟ compensation is wrong. Id.

83. Major League Rules, Rule 4 entitled First Year Player Draft, ¶(a), Players Subject. See also

First Year Player Draft, Official Rules, MLB.COM, http://mlb.mlb.com/mlb/draftday/rules.jsp (last

visited Feb. 14, 2011).

84. Major League Rules, supra note 83.

85. Id. at r.4(c)(1), Order of Selection.

86. Id. at (b), Selection Meeting.

87. Basic Agreement, supra note 4, at art. XX ¶ 4(a)-(c). The relevant sections of paragraphs (b)

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1525 amateur players were drafted.

After a MLB club drafts an amateur player, the player is placed on that

club‟s exclusive negotiating list, and only the drafting club can attempt to sign

him to a professional contract.

A drafted player may sign a major league or

a minor league contract with the club that drafted him or a player may choose

to return to college if he still has eligibility to play college baseball.

Soon after the draft, players who were drafted begin negotiating terms of

employment with the major league club that drafted them. If they agree to

terms, players are typically presented with the MLUPC to sign with several

addenda. However, for the first time, in 2009, accompanying the MLUPC

were Addendum F and Addendum G.

Addendum F required the minor

league player to submit to the jurisdiction and to file any workers‟

compensation action in the team‟s home state or in another state that is

selected by the club and written in the blank space provided on the

document.

At least one team, the Los Angeles Angels of Anaheim, who

plays its games in Anaheim, California, designated the state of Arizona on

Addendum F, presumably because that state‟s workers‟ compensation laws are

more employer friendly than California‟s workers‟ compensation laws.

Addendum G required, in part, that the player reimburse the club for

medical expenses for services performed by a doctor chosen by the player if

the treatment by that doctor was more expensive than services that would have

been performed by the team doctor.

The authors submit that both of these

and (c) state

(b) A Type A Player shall be a Player who ranks in the upper twenty percent (20%) of his

respective position group. A Type B Player shall be a Player who ranks in the upper forty

percent (40%) but not in the upper twenty percent (20%) of his respective position group.

with another Club prior to December 1; or (ii) he is offered salary arbitration by his

former Club on or before December 1 pursuant to Section B(3) of this Article XX and

signs a contract with another Club. For such Type A Players, compensation to the

Player‟s former Club shall be an amateur draft choice (“Regular Draft Choice”) of the

signing Club and an added amateur draft choice (“Special Draft Choice”) in the Major

League Rule 4 Draft. For such Type B Players, compensation to the Player‟s former Club

shall be a Special Draft Choice in the Major League Rule 4 Draft.

88. Draft Tracker, MLB.COM, http://mlb.mlb.com/mlb/events/draft/y2010/ drafttracker.jsp?p=0

&s=30&sc=pick_number&so=ascending&st=number&ft=RD&fv=52 (last visited Aug. 18, 2010).

89. Major League Rules, supra note 83 at Rule 4(d), Effect of Selection of a Player.

90. Id. at (c)(2)(B).

91. See Addenda F & G, supra notes 1 and 3, for the relevant text of Addenda F & G.

92. See Addendum F, supra note 1.

93. Mullen, supra note 2.

94. Addendum G, supra note 3.

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provisions are, most likely, MLB‟s response to the Maine Supreme Judicial

Court‟s decision in Cavers.

VI. PLAYER LEVERAGE IN NEGOTIATIONS

A. Most Minor League Baseball Players Have Limited Leverage

Most drafted players would not have the leverage or bargaining power to

negotiate the removal of Addenda F and G from the MLUPC. The MLUPC

was not negotiated with the MLBPA or any other union, and therefore, it is an

individual contract between the club and the player. Thus, in theory, a minor

league player could object to Addenda F and G and refuse to sign the contract.

However, the likely result of this is that, unless the player has great leverage,

the team would simply refuse to sign the player and turn its attention to its

forty-nine other drafted players.

Of the approximately 1500 amateur players drafted, some are more skilled

and, thus, have more bargaining power when negotiating with the major

league club. A drafted player who signs a minor league contract may receive a

significant bonus if he is drafted in the first round of the draft. In 2008, major

league clubs spent a total of $188.3 million in bonuses for the entire draft, an

increase of $34.7 million from 2007.

In 2008, thirty major league clubs paid

out a total of $68,966,000 to first round picks, an average of $2,266,666 per

player.

A highly skilled player may have the leverage to sign a major league

contract and, thus, become a member of the MLBPA. In a typical draft, a very

select few players have such leverage. For instance, in 2008, only two players

in the first round signed major league contracts, and the remaining twenty-

eight signed minor league contracts.

But, for those who do, it means they

have access to the terms and protections of the Basic Agreement that apply to

the player. For example, as noted previously, Stephen Strasburg of the

Washington Nationals, the first pick in the 2009 First-Year Player Draft,

signed a four-year, $15.1 million major league guaranteed contract after being

drafted.

A player signing his first major league contract for the 2010 season

received a minimum salary in the minor leagues of $32,500, paid over the

95. Jim Callis, Ask BA, BASEBALLAMERICA.COM, Feb. 17, 2009, http://www.baseballamerica.

com/today/prospects/ask-ba/2009/267624.html.

96. Maury Brown, First Round Draft Bonuses Totaled Nearly $69M, BIZOFBASEBALL.COM, Feb.

17, 2009, http://www.bizofbaseball.com/index.php?option=com_content&view=article&id=2963:08-

first-round-mlb-draft-bonuses-totaled-nearly-69m&catid=30:mlb-news&Itemid=42.

97. Id.

98. ESPN News Services, supra note 31.

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five-month minor league season, and had the ability to negotiate for a higher

salary.

For example, Strasburg negotiated a salary of $400,000 for 2009, $2

million for 2010, $2.5 million in 2011, and $3 million in 2012, in addition to

other terms totaling $15.1 million.

100

In contrast, a first-year minor league

player who signed a minor league contract for the 2010 season will be paid

$1,100 per month for the five-month minor league season regardless of

whether that player received a signing bonus.

101

The Basic Agreement, which applies to all players who sign a major

league contract, provides far superior injury benefits than those provided in a

minor league contract. If a major league player disagrees with the team

doctor‟s diagnosis of his work-related injury, he may receive a second opinion.

The MLBPA and MLB clubs have agreed on a list of doctors by geographic

area to provide medical services to players, and the club shall pay for the

service.

102

If the player wishes to use a doctor not on the list for a second

opinion, the player and the club must agree in advance for authorization to

perform the service and for the club to pay the doctor.

103

If there is a

disagreement between the player‟s doctor and the team doctor as to what

procedure needs to be performed on the player, the MLBPA and the MLB

clubs have agreed to encourage all parties to select a neutral third doctor to

resolve the dispute.

104

The MLUPC does provide that the club shall pay all

reasonable and necessary hospital expenses for a player suffering a work-

related injury, but the club “shall always have the right to select the physician”

to perform the service.

105

However, the MLUPC does not contain any

provision for a second opinion or for a neutral third-party doctor to resolve any

dispute between the minor league player and his club.

Comparing the terms of a major league contract and the MLUPC, it is

clear that major league players and minor league players who have signed a

major league contract have rights far superior to minor league players who

have signed a MLUPC with Addenda F and G controlling work-related

injuries. Given the fact that both major league and minor league players may

be hurt playing the same game for the same employer/club, it is inconsistent

and inequitable to treat the players differently.

99. Basic Agreement, supra note 4, at art. VI ¶ B(1).

100. Bill Shaikin & Dylan Hernandez, The Fabulous Forum: Strasburg Contract Numbers,

LATIMES.COM, Aug. 17, 2009, http://latimesblogs.latimes.com/sports_blog/2009/08/strasburg

contract-numbers.html.

101. See Minor League Baseball, supra note 79.

102. Basic Agreement, supra note 4, at art. XIII (D).

103. Id.

104. Id. at attachment 35.

105. MLUPC, supra note 36, at art. VIII ¶ C.

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Furthermore, baseball‟s antitrust exemption, codified in the Curt Flood

Act of 1998,

106

has enabled the minor leagues to prosper, despite the fact that

many minor leaguers do not earn a “living wage.”

107

The protection afforded

to employers by the antitrust exemption keeps minor league players from

challenging a system where, once drafted, a player‟s rights are held for seven

years and there is neither free movement nor leverage for players to negotiate

a fairer system. Nearly one hundred years after American League Baseball

Club of Chicago v. Chase, what the Supreme Court of New York described as

an unlawful combination and a scheme that relegated players to a system of

peonage, for which the court refused to grant an equitable remedy to the

plaintiff team,

108

to a degree continues to exist. The antitrust exemption keeps

106. The Curt Flood Act of 1998 applied antitrust laws to MLB players. However, Section 3 of

the Curt Flood Act amended Section 27 of the Clayton Act, 15 U.S.C. § 12 et seq. and reinforced that

minor league baseball players were exempt from antitrust laws. The amended Section 27 reads in

part as follows:

SEC. 27. (a) Subject to subsections (b) through (d), the conduct, acts, practices, or

agreements of persons in the business of organized professional major league baseball

directly relating to or affecting employment of major league baseball players to play

baseball at the major league level are subject to the antitrust laws to the same extent such

conduct, acts, practices, or agreements would be subject to the antitrust laws if engaged in

by persons in any other professional sports business affecting interstate commerce.

(b) No court shall rely on the enactment of this section as a basis for changing the

application of the antitrust laws to any conduct, acts, practices, or agreements other than

those set forth in subsection (a). This section does not create, permit or imply a cause of

action by which to challenge under the antitrust laws, or otherwise apply the antitrust

laws to, any conduct, acts, practices, or agreements that do not directly relate to or affect

employment of major league baseball players to play baseball at the major league level,

including but not limited to -

(1) any conduct, acts, practices, or agreements of persons engaging in, conducting or

participating in the business of organized professional baseball relating to or affecting

employment to play baseball at the minor league level, any organized professional

baseball amateur or first-year player draft, or any reserve clause as applied to minor

league players; (emphasis added).

107. A living wage is defined by Merriam-Webster‟s dictionary as a wage sufficient to provide

the necessities and comforts essential to an acceptable standard of living. Living Wage,

MERRIAMWEBSTER.COM, http://www.merriam-webster.com/dictionary/living+wage (last visited

Sept. 27, 2010). See also Living Wage Overview, BERKELEY.EDU, http://laborcenter.berkeley.edu/

livingwage/overview.shtml (last visited Sept. 28, 2010). While the living wage level varies among

regions, the stated goal is to insure that workers receive a livelihood that allows a full time worker to

provide food, housing, health care, child care, and basic transportation for themselves and their

families.

108. Am. League Baseball Club of Chicago v. Chase, 86 Misc. 441, 465-67 (N.Y. Supp. 1914).

The system created by „organized baseball‟ in recent years presents the question of the

establishment of a scheme by which the personal freedom, the right to contract for their

labor wherever they will, of 10,000 skilled laborers, is placed under the dominion of a

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minor league players from having the antitrust threat available in other

professional leagues. Because leagues, like no other workplace, rely so

heavily on restrictive employment practices (e.g., drafts, salary caps, wage

scales, free agency restraints), the professional sports workplace is a hotbed

for antitrust challenges by players.

109

Although there are pro-competitive

reasons to justify the restrictive practices under a rule of reason argument, the

threat of treble damages gets the league‟s attention in ways that contract or

other legal claims do not. The antitrust threat also encourages unionization in

professional sports. To achieve the labor exemption to antitrust, owners covet

unionization in professional sports leagues in ways they might not in

mainstream business. To settle an antitrust suit, owners in professional sports

will resort to collective bargaining.

110

However, unionization in minor league

baseball is more challenging to achieve due to the extreme leverage and

disincentive for unionization afforded to management by baseball‟s

exemption, the high rate of turnover of players, the vast geographic area of the

minor league teams, the disparity in levels of talent between low A ball and

AAA, and the fact that, by their nature and in the working environment they

are in, the players are competing with each other rather than cooperating with

one another. Thus, the likelihood that antitrust or labor remedies available to

other professional athletes will bridge the gap for minor league baseball

players is unrealistic.

benevolent despotism through the operation of the monopoly established by the National

Agreement. This case does not present the simple question of a laborer who has entered

into a fair contract for his personal services.” Id. at 466.

109. See Flood v. Kuhn, 407 U.S. 258 (1972) (challenging MLB‟s reserve system on antitrust

grounds); Radovich v. Nat‟l Football League, 352 U.S. 445 (1957) (challenging NFL‟s rule

blacklisting player on antitrust grounds); Toolson v. N.Y. Yankees, 346 U.S. 356 (1953) (challenging

MLB‟s reserve system on antitrust grounds); Clarett v. Nat‟l Football League, 369 F.3d 124 (2nd Cir.

2004) (challenging NFL‟s draft eligibility restrictions on antitrust grounds); Powell v. Nat‟l Football

League, 930 F.2d 1293 (8th Cir. 1989) (challenging NFL‟s right of first refusal-free agent

compensation system on antitrust grounds); Wood v. Nat‟l Basketball Ass‟n, 809 F.2d 954 (2nd Cir.

1987) (challenging NBA‟s draft, rookie salary cap, and player restraints on antitrust grounds);

McCourt v. Cal. Sports, Inc., 600 F.2d 1193 (6th Cir. 1979) (challenging NHL‟s free agent

compensation system on antitrust grounds); Smith v. Pro Football, Inc., 593 F.2d 1173 (D.C. Cir.

1978) (challenging NFL‟s draft on antitrust grounds); Mackey v. Nat‟l Football League, 543 F.2d

606 (8th Cir. 1976) (challenging NFL‟s Rozelle Rule restraints on free agency on antitrust grounds);

Fraser v. Major League Soccer, 97 F. Supp. 2d 130 (D. Mass. 2000) (challenging MLS‟ single entity

structure on antitrust grounds); McNeil v. Nat‟l Football League, 790 F. Supp. 871 (D. Minn. 1992)

(challenging NFL‟s Plan B free agency restraints on antitrust grounds); Bridgeman v. Nat‟l Basketball

Ass‟n, 675 F. Supp. 960 (D.N.J. 1987) (challenging NBA‟s college player draft, salary cap, and right

of first refusal on antitrust grounds).

110. See White v. Nat’l Football League, 822 F. Supp. 1389, 1431-32 (D. Minn. 1993) aff’d, 41

F.3d 402, 408-09 (8th Cir. 1994) (threatened antitrust class action by NFL players brought parties

back to collective bargaining resulting in settlement with 1993 CBA).

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B. Comparison to Minor League Hockey Players

Minor league hockey players in the American Hockey League (AHL) and

the ECHL are represented by the Professional Hockey Players Association

(PHPA). The collective bargaining agreements (CBA) in both leagues provide

better benefits to minor league hockey players than their counterparts in minor

league baseball.

The AHL, which began operation in 1936, is comprised of thirty teams

111

and serves as the top developmental league for the National Hockey League

(NHL).

112

The minimum salary in the AHL for 2009-10 was $36,500 U.S. or

$39,000 Canadian ($28,000 U.S, for players on loan to the AHL from lesser

leagues) with $63 per diem.

113

The CBA also provides that “if a player‟s

injury is covered by Workers‟ Compensation, then his sole remedy shall be to

pursue a claim before the Workers‟ Compensation Board in the appropriate

jurisdiction.”

114

Unlike the provisions of Addendum F, the CBA does not

require the player to file a workers‟ compensation claim in the team‟s home

state. In addition, the CBA between the AHL and the PHPA provides benefits

to players if they are playing in a jurisdiction that has exempted professional

athletes from workers‟ compensation coverage.

115

During the season, an

injured player receives his full salary if he is injured during a game and unable

to play.

116

In the offseason, an injured player, not covered by workers‟

compensation, who has yet to fully recover, receives a benefit of $450.00 per

week.

117

If the team doctor and the player‟s doctor disagree about a player‟s

injury and his ability to play, an independent doctor is selected to resolve the

dispute.

118

The ECHL, formerly known as the East Coast Hockey League, is a minor

league hockey league with twenty teams from Alaska to South Carolina.

119

Each team has twenty players on its active roster.

120

The professional players

111. Member Club Information, AHL.COM, http://theahl.com/team-directory-s11579 (last visited

Aug. 7, 2010).

112. Frequently Asked Questions, AHL.COM, http://theahl.com/faq-p137653 (last visited Aug. 7,

2010).

113. AMERICAN HOCKEY LEAGUE, COLLECTIVE BARGAINING AGREEMENT: AHL/PHPA art. VI

(2009) [hereinafter AHL/PHPA CBA].

114. Id. at art. XII, § 1 ¶ 1.

115. Carlin & Fairman, supra note 26.

116. AMERICAN HOCKEY LEAGUE STANDARD PLAYER CONTRACT ¶ 5(d).

117. AHL/PHPA CBA, supra note 113, at art. XII, §§ 1-2.

118. Id.

119. The East Coast Hockey League changed its name to the ECHL on May 19, 2003.

Frequently Asked Questions, ECHL.COM, http://www.echl.com/faq.shtml (last visited Aug. 7, 2010).

120. Id.

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of the ECHL are collectively represented by the PHPA and also have a CBA

with the ECHL. The ECHL has a minimum weekly salary due to player

movement. The 2010-11 weekly minimum falls between $370 and $410 U.S.,

depending on a player‟s experience level, and the daily per diem is $36.

121

The CBA requires players be covered by workers‟ compensation, and if the

home territory of the team does not require it, the team must provide “similar

insurance.”

122

An injured ECHL player continues to receive his full salary

under the contract, and he receives medical care “as the [team‟s] physician

may deem necessary.”

123

It is evident that unionized minor league hockey players, due to their

ability to collectively bargain for wages and other employment provisions,

earn better wages and are better protected than their nonunionized minor

league baseball counterparts. Further, when there is a dispute regarding the

care, treatment, and financial coverage for the care and treatment of work-

related injuries, the ECHL CBA provides protections and remedies not

available to similarly situated minor league baseball players.

VII. MAJOR LEAGUE BASEBALL AND MINOR LEAGUE BASEBALL ARE

PROFITABLE BUSINESSES AND IMPOSING ADDENDA F AND G ON MINOR

LEAGUE PLAYERS IS FINANCIALLY UNNECESSARY AND UNFAIR

Professional baseball is a very profitable business. In 2009, MLB

generated $6.6 billion in gross revenue.

124

Today, minor league baseball clubs

are also very valuable. In 2008, on average, the top twenty minor league

teams were worth $21.2 million and generated $9.8 million in revenue per

team.

125

Forty-nine percent of these revenues were generated from ticket

sales.

126

The major league teams cover the cost of developing the minor

league players, as the costs for player salaries, bonuses, scouting, and coaches‟

salaries are paid for by the major league affiliates.

127

As a result, the top

twenty minor league clubs generated average operating income—defined as

121. AHL/PHPA CBA, supra note 113, at art. VII § 2.

122. Id. at art. XIV § 1.

123. ECHL Standard Player Contract ¶ 7.

124. Maury Brown, MLB Sees Record $6.6 Billion in Revenues in 2009, BIZOFBASEBALL.COM,

Feb. 25, 2010, http://www.bizofbaseball.com/index.php?option=com_content&view=article&id

=4124:mlb-sees-a-record-66-billion-in-revenues-for-2009&catid=30:mlb-news&Itemid=42.

125. Michael Ozanian, Minor Leagues, Major Profits, FORBES.COM, Aug. 8, 2008,

http://www.forbes.com/

2008/08/06/baseball-minors-sacramento-biz-sports-cz_mo_0806minors.html.

126. Id.

127. Id.

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594 MARQUETTE SPORTS LAW REVIEW [Vol. 21:2

earnings before interest, taxes, and depreciation—of $3 million.

128

In comparison to the enormous revenues of major league clubs and the

success of several minor league teams, the average minor league player is

impoverished. The Federal Government‟s “Poverty Guidelines” for 2010 state

that an individual is considered impoverished if he earns less than $10,830 per

year.

129

The average first-year minor league player makes $1,100 for the five

months of the playing season, from April to the beginning of September, or

$5,500 per year.

130

The majority of players do not receive large signing

bonuses upon agreeing to their first professional contract.

131

The player is

obligated to keep himself in shape and prepare for the upcoming season, all

while attempting to find work in the offseason plus paying for his housing,

food, and transportation. It is easy to see that many minor league players will

fall below the poverty line given the nature of their employment.

With this economic background, the requirement that minor league players

sign Addenda F and G is simply unfair. With regard to Addendum F, the

major league clubs and their minor league team affiliates are in a much better

position financially to litigate workers‟ compensation claims in the home state

of the player rather than submit to the jurisdiction of the club‟s home state.

Further, it is incomprehensible that major league clubs, such as the Los

Angeles Angels of Anaheim, are requiring players to consent to jurisdictions

that are employer friendly and not their home state.

In addition, if a player‟s personal physician is of the opinion that an

expensive, but necessary, medical procedure is required and the club‟s

physician disagrees, Addendum G requires that the player pay for the

difference in treatment if the required treatment is more expensive. Given the

limited resources of minor league players, this could lead to an injured player

foregoing treatment because he cannot afford it or acquiescing to the treatment

suggested by the club‟s physician even if it does not address his ailment.

Addenda F and G make it more difficult and more expensive for a minor

league player to file a workers‟ compensation claim and receive medical

treatment. This is unacceptable in an industry that is thriving. These addenda

are unconscionable contracts of adhesion and seem to violate public policy due

to the lack of bargaining power of the minor league players.

128. Id.

129. Fed. Reg., vol. 75, n. 148, Aug. 3, 2010, pp. 45628-29, available at http://aspe.hhs.gov/

poverty/figures-fed-reg.shtml see also http://aspe.hhs.gov/poverty/faq.shtml#differences.

130. Official Info, MILB.COM, http://web.minorleaguebaseball.com/milb/info/faq.jsp?mc=

milb_info (last visited Aug. 31, 2010).

131. See supra Section V, A. of this Article.

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VIII. CONCLUSIONS AND SUGGESTIONS

Under United States Supreme Court precedent in Alaska Packers, an

agreement by any employee to waive his right to workers‟ compensation is

invalid.

132

Although Addenda F and G are not waivers of workers‟

compensation rights, they have the effect of making it more difficult and

expensive for a minor league player to file a workers‟ compensation claim,

and the agreements may even prevent him from receiving a necessary medical

procedure because he does not have the financial wherewithal to afford it. As

a result of the underlying unfairness to the players, this Article suggests that

state workers‟ compensation boards and courts should ignore Addenda F and

G and apply their typical jurisdictional criteria to the workers‟ compensation

cases of minor league baseball players that come before them.

133

MLB should rescind Addenda F and G, as they are unfair to injured minor

league players. Addenda F and G do not comport with the “fair play and

substantial justice” standards for due process and minimum contacts set out by

the United States Supreme Court.

134

Cavers, a Maine resident, was working

for a Texas corporation, the Astros, and was injured while playing in a

professional baseball game in Tennessee. Applying the Supreme Court‟s logic

in the Alaska Packers case to this matter, the “probability is slight” that Cavers

“would be able to retrace” his “steps” to Tennessee or to Texas “and there

successfully prosecute [his] claims for compensation.”

135

Addenda F and G

may lead to injured minor league players becoming “remediless” as the

Supreme Court in Alaska Packers feared, and there is a “danger that they

might become public charges.”

136

The imposition of Addenda F and G on

workers, the majority of whom are paid below the poverty line, is simply an

unconscionable policy decision borne out of the loss by the Astros in the

Cavers case.

Another option, despite the hurdles raised previously, is for minor league

baseball players to form a union to collectively bargain for better wages and

working conditions, including injury protection. Furthermore, issues have

recently arisen that suggest that minor league baseball players should form a

132. Alaska Packers Ass‟n v. Indus. Accident Comm‟n of Cal., 294 U.S. 532, 543 (1935). See

also Carlin & Fairman, supra note 26, at 100 n.27.

133. ROTHSTEIN, supra note 11, at § 7.40.

134. Cavers v. Houston McLane Co., 958 A.2d 905, 909-10 (2008) (citing Shaffer v. Heitner,

433 U.S. 186, 212 (1977) and Int‟l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)).

135. Alaska Packers, 294 U.S. at 542; see also supra Section III of this Article. Cavers never

played baseball for the Astros in Texas. He only visited Texas to be examined by the Astros‟ team

doctor.

136. Cavers, 958 A.2d at 914 (quoting Alaska Packers, 294 U.S. at 542).

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union. In July 2010, MLB Commissioner Allan H. “Bud” Selig announced

that minor league players would be tested for human growth hormone (HGH)

by drawing blood from the players.

137

MLB was able to impose this new

testing without approval of the minor league players because they are not part

of a union and not subject to collective bargaining rules.

138

The details of the

blood test, including the level of the substance within the body, the ability to

increase testing, and the blood drawing procedures, are solely up to MLB, and

the minor league players have no input into the process.

139

Unionization

would ensure that the minor league players have the opportunity to negotiate

for protections similar to those afforded their major league counterparts.

Minor league players need to have a say in such terms and conditions of

employment and, given these recent developments, should form a union to

represent their interests. It is clear that minor league hockey players in the

AHL and ECHL have working conditions that are far more favorable because

players are unionized and have negotiated more equitable terms in their

respective CBAs.

140

A second option is for Congress to re-examine the antitrust exemption first

granted to baseball by the Supreme Court in Federal Baseball Club v.

National League

141

and codified in the Curt Flood Act of 1998.

142

Professional baseball is able to maintain the rights of minor league players in

one-sided contracts for seven years

143

by virtue of this antitrust exemption.

Without the antitrust exemption that professional baseball enjoys, players

would be granted more individual bargaining power by the threat of

challenging restrictive practices, such as below market wages and the reserve

system. For instance, with antitrust leverage, ostensibly, the owners would not

be able to uniformly bind minor league players to their clubs for seven years,

unless, of course, the players agreed collectively to such an imposition, and if

that were the case, players would presumably receive something in exchange

for agreeing to maintain the reserve system currently in existence. Further, the

137. Michael S. Schmidt, Baseball Using Minor Leagues for a Drug Test, NYTIMES.COM, July

22, 2010, http://www.nytimes.com/2010/07/23/sports/baseball/23doping.html.

138. Id.

139. Maury Brown, Rob Manfred on Minor League Drug Testing Program, FANGRAPHS.COM,

Aug. 11, 2010, http://www.fangraphs.com/blogs/index.php/rob-manfred-on-minor-league-drug-

testing-program/.

140. See supra Section VI B. of this Article.

141. Fed. Baseball Club v. Nat‟l League of Prof‟l Baseball Clubs, 259 U.S. 200 (1922) (holding

business of staging local professional baseball games through service contracts was not interstate

commerce and exempt from Sherman Antitrust Act).

142. See Curt Flood Act of 1998, 15 U.S.C. § 26(b) (2011).

143. MLUPC, supra note 36, ¶ VI., Duration and Conditions of Employment

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2011] IF YOU’RE HURT, WHER E IS HOME? 597

owners would have difficulty unilaterally imposing unfair terms upon them as

contained in Addenda F and G, as players would have access to the same

antitrust threat that major league players were granted by virtue of the Curt

Flood Act. Congress should explore why professional baseball is taking

advantage of minor league players regarding an issue of their health when

baseball is a very profitable business, in part because of the antitrust

exemption. Minor league hockey players in the AHL and ECHL are subject to

antitrust laws and have far better wages and working conditions. However,

because the players in those leagues are unionized and negotiate CBAs, the

leagues are afforded the labor exemption from antitrust liability for the

provisions in their CBAs.

And yet a third option might be to strengthen state workers‟ compensation

laws to specifically allow residents to file workers‟ compensation claims in

their home state regardless of any contractual agreement that their employers

requires them to sign consenting to the jurisdiction of another state, thus

following the logic in Alaska Packers.

144

In conclusion, Addenda F and G do

not comport with the traditional notions of fair play and substantial justice, and

minor league baseball players should not be bound to the terms of Addenda F

and G as they are unjust, they violate public policy, and they are in conflict

with the letter and the spirit of the law proscribed by the United States

Supreme Court in Alaska Packers.

145

144. Cavers v. Houston McLane Co., 958 A.2d 905, 909-910 (Me. 2008) (citing Shaffer v.

Heitner, 433 U.S. 186, 212 (1977) and Int‟l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)).

145. Id.