Minor League With a Major Issue: How Baseball's Federal Antitrust Exemption has Devastated Minor League Baseball

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MINOR LEAGUE WITH A MAJOR ISSUE: HOW BASEBALL’S

FEDERAL ANTITRUST EXEMPTION HAS DEVASTATED MINOR

LEAGUE BASEBALL

Hallie Arena

BSTRACT

In 1922, the United States Supreme Court exempted Major League

Baseball (“MLB”) from the Sherman Antitrust Act in the landmark decision

Federal Baseball Club of Baltimore v. National League of Professional Baseball

Clubs. Despite growing criticism from the players, fans, and the courts, this

exemption holds true today. Although MLB players have slowly been given

greater contracting rights, minor league players have been left behind in this

fight. MLB’s antitrust exemption negatively affects MiLB and allows league

owners to exploit players for little salary, often forcing them to live at or below

the poverty line. Poor living conditions, coupled with the Supreme Court’s recent

holding in NCAA v. Alston, which allows college players to profit off of their

name, image, and likeness, make college baseball an increasingly more

appealing option for athletes. This Note discusses the antitrust exemption in light

of NCAA v. Alston and suggests ways in which MiLB can be saved, including

relinquishing MLB’s antitrust exemption and adopting a similar model to other

minor league franchises to keep the minor league as a viable option whilst

improving the lives of players.

INTRODUCTION ..................................................................................... 2

II.

BACKGROUND ..................................................................................... 4

A. History of Minor League Baseball ............................................. 5

B. Baseball’s Antitrust Exemption.................................................. 6

C. Other Federal Legislation ......................................................... 8

III.

PENDING FIXES ................................................................................. 12

A. MLB’s Solution ....................................................................... 13

B. Lawsuit ................................................................................... 15

IV. PROPOSED SOLUTIONS ..................................................................... 17

CONCLUSION ..................................................................................... 21

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I. INTRODUCTION

Between June 9 and June 11, 2009, over 1500 baseball players around

the country anxiously awaited the yearly MLB draft.

Being drafted allows

players the chance to live their dreams of playing professional baseball. That

dream came true for player Ty Kelly—a second baseman from the University of

California, Davis—who was drafted by the Baltimore Orioles in the 13th round.

Ty Kelly quickly learned, as many others have, that the fame and glory

of MLB baseball was a façade while in the minor leagues. Despite minor league

baseball being “at the heart of small town America,”

minor league life was far

from what is promised or shown to the public. With an average in-season salary

of around $290 per week along with no chance of overtime pay,

Kelly ultimately

ended up spending the entire five-month season sleeping on an air mattress in

the middle of a living room in an unfurnished apartment with many other

players.

The next season, Kelly managed a meager improvement by sharing a

three-bedroom apartment with six minor league players.

Aside from his housing

woes, Kelly remembers his pregame meals being made up of leftover stadium

concession food from days prior with no other options.

Kelly also commented

on post-game meals, where a team of 25 players rationed two plates of spaghetti.

Every part of Kelly’s life was left to the decisions of the minor league team.

Kelly’s story is not unique. In fact, all minor league contracts are the

same: “per MLB Rules, all players must sign the Minor League Uniform Player

Complete 2009 Draft Results, ESPN (June 9, 2009),

https://www.espn.com/mlb/draft2009/news/story?id=4246340.

Ty Kelly Stats, Fantasy & News, MLB, https://www.mlb.com/player/ty-kelly-

571841?stats=career-r-hitting-minors&year=2021 (last visited Nov. 8, 2022).

Save Minor League Baseball Task Force Co-Chairs Trahan, McKinley, Rose, and Simpson

Lead Introduction of Congressional Resolution Supporting Minor League Baseball, U.S.

CONGRESSWOMAN LORI TRAHAN (Jan. 28, 2020),

https://trahan.house.gov/news/documentsingle.aspx?DocumentID=1355 [hereinafter Lori

Trahan].

The average single-A salary raised in 2021 from $290 per week to $500 per week. See Ryan

Fagan, Even After Overdue Salary Bump, Baseball’s Minor Leaguers Still Paid Far Below NBA,

NHL Counterparts, SPORTING NEWS (Feb. 12, 2021),

https://www.sportingnews.com/us/mlb/news/even-after-overdue-salary-bump-baseballs-minor-

leaguers-still-paid-far-below-nba-nhl-counterparts/1gpql94asy7a10uo5nvc3yp4k.

Marc Normandin, Advocates for Minor Leaguers Aims to Give Players a Much-Needed

Voice, B

ASEBALL PROSPECTUS (Mar. 5, 2020),

https://www.baseballprospectus.com/news/article/57899/advocates-for-minor-leaguers-aims-to-

give-players-a-much-needed-voice/.

Id.

Ty Kelly (@tykelly11), TWITTER (Feb. 10, 2020, 5:21 PM),

https://twitter.com/tykelly11/status/1226994621856665600.

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2023] MINOR LEAGUE WITH A MAJOR ISSUE 3

Contract.”

Matt Paré, who video blogged under the name “Homeless Minor

Leaguer,” recalls his time in MiLB: “the system was completely broken.”

Paré

called the minor league system a “pay-to-play model” where the only guys who

could truly make it to the big leagues were the only ones that the signing bonuses

allowed to live a minor league life out of poverty.

Many other players and minor league staff work upwards of 70 hours

per week during the season

and continue to work second and third jobs during

the offseason while being also expected to train daily.

Players also rarely get

days off. For example, in 2016, MiLB only allotted the Pawtucket Red Sox, a

minor league team affiliated with the Boston Red Sox, to have five total days off

in a five-month, 140-game season.

Year in and year out, thousands of players across the country submit to

this poverty-level salary, unfair living conditions, and a lack of autonomy with

the hopes of making it to “the Show,”

yet this does not save the current minor

league system from failing. In December 2020, MLB cut 40 minor league

teams,

leaving desolate stadiums growing dust in small towns across America.

Players have also begun to speak out about poor living conditions and the

changes they wish to see implemented in the sport.

Some players have

The Problem, ADVOCATES FOR MINOR LEAGUERS,

https://www.advocatesforminorleaguers.com/theproblem/ (last visited Mar. 3, 2023).

Normandin, supra note 5.

Id. Players drafted in the first few rounds of the MLB draft can sign for upwards of millions

of dollars, whereas the later picks sign for thousands. See BA Staff, 2021 MLB Draft Order, Slot

Values and Bonus Pools for all 30 Teams, BASEBALL AM. (July 11, 2021),

https://www.baseballamerica.com/stories/2021-mlb-draft-order-slot-values-and-bonus-pools-for-

all-30-teams/; see also Weston Blasi, Here’s How Much Money the 2021 MLB Draft Picks Will

Make, M

ARKETWATCH (July 13, 2021, 11:37 AM), https://www.marketwatch.com/story/heres-

how-much-money-the-2021-mlb-draft-picks-can-make-in-signing-bonuses-11626112369.

Normandin, supra note 5; Frequently Asked Questions, ADVOCATES FOR MINOR LEAGUERS,

https://www.advocatesforminorleaguers.com/faqs (last visited Nov. 8, 2022) [Hereinafter FAQs].

FAQs, supra note 12.

Zach Spedden, Plans in Place for a 140-Game AAA Schedule, BALLPARK DIGEST (May 2,

2016), https://ballparkdigest.com/2016/05/02/plans-in-place-for-140-game-aaa-schedule/. This

does not include the three days off that every team gets every year for the All-Star Break in mid-

July. Id.

“The Show,” sometimes called “The Big Show” is a common nickname for major league

level baseball.

Gabe Lacques, Major League Baseball Issues Invites for Minor-League Affiliates; Here are

Teams That Didn’t Make Cut, USA

TODAY (Dec. 10, 2020, 2:31 PM),

https://www.usatoday.com/story/sports/mlb/2020/12/09/mlb-announces-minor-league-affiliate-

invites-some-teams-miss-cut/3805929001/.

See, e.g., MiLB Players (@Milb_players), TWITTER (Jan. 27, 2022, 7:10 PM),

https://twitter.com/Milb_players/status/1486854236050800641?cxt=HHwWgoC-

yZmDr6IpAAAA.

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4 WEST VIRGINIA LAW REVIEW ONLINE [Vol. 125

described how the system can cause a severe mental health crisis.

A recent

lawsuit just settled after attempting to hold MLB accountable for violating the

Fair Labor Standards Act (“FLSA”).

Congress has threatened to end MLB’s

coveted antitrust exemption,

and with the Supreme Court’s recent implication

that it might be willing to relook at this exemption,

a lawsuit was recently filed

with the hopes of achieving that goal. Feeling punches from all angles, minor

league baseball is seemingly hanging on by a thread.

This Note examines how the antitrust exemption has harmed

professional baseball players, specifically MiLB players, and explores the ways

in which MiLB can be saved. Part II explains the history of MLB and MiLB. It

will discuss the government’s role in the antitrust exemption as well as other

legislation that has harmed the players in the sport. Part III discusses current

attempts to fix the player treatment in MiLB and the likelihood of success,

including MLB’s attempts and recent lawsuits. Finally, Part IV provides other

potential solutions that would positively impact MiLB players in the future.

II. BACKGROUND

Major League Baseball, as we know it today, was formed in 1903 when

two independent baseball leagues, the National League and the American

League, became one.

The National League, the most popular league for most

of the late 1800s, acted as a monopoly with owners who “ruled with an iron fist,”

and many players were blacklisted from the league for complaining about

salaries.

In the year 1900, the American League was formed with four teams

by picking up those unemployed yet talented players and stealing from the

National League rosters.

Facing pressure to finally submit to players’ demands,

the owners of the leagues reached a National Agreement and joined forces in

1903.

Joon Lee, Can A Union Fix This? Minor Leaguers Say Poverty-Level Pay, Poor Housing

are Driving a ‘Mental Health Crisis,’ ESPN (Sep. 30, 2021),

https://www.espn.com/mlb/story/_/id/32172108/can-union-fix-minor-leaguers-say-poverty-level-

pay-poor-housing-driving-mental-health-crisis.

See Senne v. Kan. City Royals Baseball Club, 934 F.3d. 918 (9th Cir. 2019).

Fed. Baseball Club of Balt. v. Nat’l League of Pro. Baseball Clubs, 259 U.S. 200 (1922).

See Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021) (“[T]his Court has

refused to extend Federal Baseball’s reasoning to other sports leagues — and has even

acknowledged criticisms of the decision as ‘unrealistic’ and ‘inconsistent’ and ‘aberration[al].’”)

Baseball History, Origins, Growth and Changes in the Game, THE PEOPLE HIST.,

https://www.thepeoplehistory.com/baseballhistory.html (last visited Nov. 8, 2022).

Id.

Id. At this time, the American League and the National League formed the two major

leagues, and each year the winner of each league would play each other for one world series. Id.

See also J.J. Cooper, A Complete History of the Working Agreement Between Major and Minor

Leagues, B

ASEBALL AM. (Oct. 18, 2019), https://www.baseballamerica.com/stories/a-complete-

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2023] MINOR LEAGUE WITH A MAJOR ISSUE 5

The National Agreement paved the way for professional baseball as we

know it today and eventually for the minor league system as well. This section

lays out the history of minor league baseball, explains baseball’s antitrust

exemption, and discusses other Congressional legislation that has impacted the

livelihood of MiLB players.

A. History of Minor League Baseball

Minor League Baseball was formed around the same time as MLB. A

number of the smaller leagues in 1901 banded together to form what is now

known as MiLB today.

After the 1903 National Agreement, MiLB and MLB

reached an agreement to honor all leagues’ contracts with their players and

establish a draft for upward player movement.

The leagues also developed a

structure for MLB teams to purchase player contracts from lower-level teams.

Beginning in the 1940s, many MLB clubs decided to purchase MiLB teams for

convenience, and every MLB team had working agreements and relationships

with MiLB teams.

Today, after the recent rearrangement of the minor league system,

the

majority of MiLB teams have independent owners.

MLB teams sign player

development contracts (“PDCs”) with MiLB teams, which requires the MLB

team to “provide players to the minor league team and ensure[s] that the MLB

team will pay a portion of the salaries” of MiLB players.

Beginning in the

1960s, MLB and MiLB also began to create Professional Baseball Agreements

(“PBAs”) that expire every few years.

In the 1990s, MLB teams took on the

history-of-the-working-agreement-between-major-and-minor-leagues/. For consistency, this Note

will continue to call the major leagues “MLB.”

Cooper, supra note 25. The league was originally formed as “The National Association of

Professional Baseball Leagues.” Id. MiLB went by that name until “Minor League Baseball” was

trademarked in the 1990’s after the rise of other independent leagues. Id. The moniker MiLB was

not created until the 2000’s. Id. For consistency, this Note will continue to refer entire minor league

system as MiLB despite the year in question.

Id.

A discussion of the new configuration of MiLB will be discussed further below. See infra

Part 0.

Frequently Asked Questions: The Business of MiLB, MILB.COM,

https://www.milb.com/about/faqs-business#5 (last visited Nov. 8, 2022) [hereinafter The Business

of MiLB]. See also Tim Tucker, Braves Sell Minor League Teams in Gwinnett, Rome and

Mississippi, A

TLANTA J. CONST. (Dec. 8, 2021), https://www.ajc.com/sports/atlanta-braves/braves-

sell-minor-league-teams-in-gwinnett-rome-and-

mississippi/QJUQD4KSRZCUHIYKZ3SK6FB7JQ/ (citing the realignment of professional

developmental leagues as a reason for the sale).

Cooper, supra note 25.

Id.

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6 WEST VIRGINIA LAW REVIEW ONLINE [Vol. 125

sole responsibility of providing MiLB player salaries.

This has allowed MiLB

to focus on facility development, which in turn has helped bring in revenue and

has increased team valuations.

B. Baseball’s Antitrust Exemption

One decade after the National Agreement, a new league, called the

Federal League, formed in 1913.

The Federal League attempted to “poach

players” from MLB, and, as a result, MLB dissolved the rival league by bribing

league owners with large amounts of money and allowing some owners to

instead purchase an MLB team.

This dissolution prompted the Federal Baseball

Club of Baltimore to sue MLB in violation of the Sherman Antitrust Act.

This

Act makes it illegal to restrict or restrain interstate commerce and competition in

the marketplace.

The plaintiff in Federal Baseball argued that the conspiracy

to induce six baseball clubs to leave the Federal League restricted interstate

competition.

In 1922, the Supreme Court held that Major League Baseball was outside

the scope of the Sherman Antitrust Act.

The Court said that baseball was “not

a subject of commerce” despite clubs crossing across state lines for games.

The

encouragement of interstate transportation was simply “mere incident, not the

essential thing.”

The mental gymnastics the Court performed to reach this

holding came from classifying the business in question as “giving exhibitions of

baseball, which are purely state affairs.”

In other words, the personal effort of

players “not related to production is not a subject of commerce.”

Despite the counterintuitive description of MLB and the increased

interstate nature of the sport, the Supreme Court has been reluctant to overturn

Id.

RAY YASSER, JAMES R. MCCURDY, C. PETER GOPLERUD III & MAUREEN A. WESTON, SPORTS

LAW: CASES AND MATERIALS 267 (9th ed. 2020).

Id.; See also Crystal Nieves Murphy, The Monopoly of the MLB and the People it Has Put

at Risk, T

HE JUST. J. (Feb. 17, 2021), https://gwjusticejournal.com/2021/02/17/the-monopoly-of-

the-mlb-and-the-people-it-has-put-at-risk/.

Fed. Baseball Club of Balt. v. Nat’l League of Pro. Baseball Clubs, 259 U.S. 200 (1922).

Sherman Antitrust Act, 15 U.S.C.A. § 1 (West 2004) (“Every contract, combination in the

form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several

States, or with foreign nations, is declared to be illegal.”).

Fed. Baseball Club of Balt., 259 U.S. at 208.

Id.

Id. at 209.

Id.

Id. at 208.

Id. at 209.

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Federal Baseball.

In 1953, an effort was made to overturn Federal Baseball

with retroactive effect in Toolson v. NY Yankees.

The Supreme Court, despite

noting the evils of the antitrust field and without examining the underlying issues,

affirmed Federal Baseball on the narrow grounds that “Congress had no

intention of including the business of baseball within the scope of the federal

antitrust laws.”

Nineteen years later, in Flood v. Kuhn, the Court noted the four

reasons that led to the Toolson decision:

(1) Congressional awareness for three decades of the Court’s

ruling in Federal Baseball, coupled with congressional inaction.

(2) The fact that baseball was left alone to develop for that

period upon the understanding that the reserve system was not

subject to existing federal antitrust laws. (3) A reluctance to

overrule Federal Baseball with consequent retroactive effect. (4)

A professed desire that any needed remedy be provided by

legislation rather than by court decree. The emphasis in Toolson

was on the determination, attributed even to Federal Baseball,

that Congress had no intention to include baseball within the

reach of the federal antitrust laws.

The Toolson and Flood cases show that if any changes were to be made,

they would have to come from Congress rather than the courts.

The Flood decision produced two echoing dissents, one of which stated

that “[b]aseball players cannot be denied the benefits of competition merely

because club owners view other economic interests as being more important.”

Furthermore, this dissent argued that the Court was inconsistent in holding the

antitrust exemption for only baseball and no other professional sport, and it is

likely that Congress would have responded in some way if all professional sports

leagues were antitrust exempt.

Therefore, the dissent reasoned that the majority

too deeply relied on congressional inaction as a basis for upholding the archaic

and out-of-touch decision.

It also disagreed that federal legislation should

overturn Federal Baseball because “[i]t is this Court that has made [the 600

major league baseball players] impotent, and this Court should correct its

error.”

See Toolson v. N.Y. Yankees, Inc., 346 U.S. 356, 357 (1953); see also Flood v. Kuhn, 407

U.S. 258, 282 (1972).

346 U.S. 356 (1953).

Id. at 357.

Flood, 407 U.S. at 273–74. The Flood case challenged MLB’s reserve clause, which did not

allow players to become free agents.

See generally Flood, 407 U.S. at 273; Toolson, 346 U.S. at 356.

Flood, 407 U.S. at 292 (Marshall, J., dissenting).

Id.

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In part due to outcry following Flood v. Kuhn, Congress, after years of

silence, enacted the Curt Flood Act in 1998.

The Act provides a definition of

“major league players” and gives those individuals standing to sue MLB for

antitrust violations as it relates to player employment.

While the antitrust

exemption is directed specifically at MLB, the exemption negatively affects

MiLB. The Act specifically exempts minor league players, stating that it “does

not create, permit or imply a cause of action by which to challenge under the

antitrust laws . . . any conduct . . . relating to or affecting employment to play

baseball at the minor league level.”

Despite the antitrust exemption, the Major League Baseball Players

Association (“MLBPA”) is one of the strongest unions in the country. However,

MiLB players have historically never been included in the MLBPA, and the

players are just now completing the unionization process to join the MLBPA.

Thus, they have yet to experience the benefits of unionization. Furthermore,

because MiLB players are typically subjected to the same club from draft date

onwards (aside from the Rule 5 Draft),

they have little-to-no power to bargain

for different contracts and are traded like pawns between various major league

teams and throughout the season. This lack of power allows situations like Ty

Kelly’s to persist.

C. Other Federal Legislation

Congress is also responsible for perpetuating the current flaws in the

MiLB system. Not only did Congress specifically not grant minor league players

standing to sue related to employment in the Curt Flood Act, but Congress has

actually played a more direct role. In 2018, Congress buried the Save America’s

Pastime Act towards the end of a 2,232-page, $1.3 trillion spending bill, which

Curt Flood Act, 15 U.S.C.A. §26b (West 2022).

Id.

Matt Snyder, Minor-League Baseball Players Unionize: Minor Leaguers Officially Join

MLBPA After Authorization, CBS

SPORTS (Sept. 14, 2022),

https://www.cbssports.com/mlb/news/minor-league-baseball-players-unionize-minor-leaguers-

officially-join-mlbpa-after-authorization/.

Currently, a player who gets drafted and signs with an MLB club may not negotiate with a

different club for seven years. The Business of MiLB, supra note 31 (“According to Major League

Rule 3(b), ‘[a]ll Minor League Uniform Player Contracts between either a Major or a Minor League

Club and a player who has not previously signed a contract with a Major or a Minor League Club

shall be for a term of seven Minor League playing seasons.’”). The Rule 5 draft allows for a club

to “draft,” or select, a player from a different club so long as that player did not become a part of

former club’s major league roster in the first five seasons. Rule 5 Draft, MLB,

https://www.mlb.com/glossary/transactions/rule-5-draft (last visited Nov. 8. 2022). If a player is

selected in the Rule 5 draft, the new club will pay $100,000 to the old club and must keep that

player on their 26-man roster for the entirety of the season. Id. It is important to note that the

$100,000 “player purchase price” is more than that player would have made in the entire first five

seasons of their minor league career, excluding signing bonuses, if any.

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2023] MINOR LEAGUE WITH A MAJOR ISSUE 9

was signed into law by President Donald Trump.

MLB heavily lobbied for the

passage of this Act,

which stated:

any employee employed to play baseball who is compensated

pursuant to a contract that provides for a weekly salary for series

performed during the league’s championship season (but not

spring training or the off season) at a rate that is not less than a

weekly salary equal to the minimum wage under section 6(a) for

a workweek of 40 hours, irrespective of the number of hours the

employee devotes to baseball related activities.

In other words, the Act stated minor league players legally do not have

to be compensated for overtime work despite working more than 60 hours per

week. Furthermore, during spring training, players work more than full-time—

seven days a week for one month—but they do not need to be compensated for

any of that time.

As previously stated, minor league franchises are mostly independently

owned, but the personnel decisions are made by the major league club that the

MiLB team contracts with.

Since MLB is responsible for the salaries of MiLB

players, when MiLB lobbies in Congress, they are effectively lobbying on behalf

Matt Welch, How Government Devastated Minor League Baseball, REASON (Nov. 2021),

https://reason.com/2021/10/10/how-government-devastated-minor-league-baseball/ (last visited

Nov. 8, 2022); Why MLB’s Minor Leagues as You Know Will End September 30, ESPN (Sept. 3,

2020), https://www.espn.com/mlb/story/_/id/29795127/why-mlb-minor-leagues-know-end-sept-

30. See also Thomas Kaplan, Congress Approves $1.3 Trillion Spending Bill, Averting a Shutdown,

N.Y.

TIMES (March 22, 2018), https://www.nytimes.com/2018/03/22/us/politics/house-passes-

spending-bill.html.

Welch, supra note 60.

Consolidated Appropriations Act of 2018, H.R. 1625, 115th Cong. § 201 (2018).

Id. While the actual rate of per diems varies among clubs, minor league players do get

stipends per diem during training camp to cover housing, food, and other daily living costs. Kyle

Glaser, How Much is a Minor League Spring Training Stipend? It Depends on the Team, BASEBALL

AM. (Mar. 19, 2020), https://www.baseballamerica.com/stories/how-much-is-a-minor-league-

spring-training-stipend-it-depends-on-the-team/. In May 2022, MLB settled a seven-year lawsuit

regarding lack of overtime pay and pay during spring training after a federal judge found that

players were full-time employees. Adam Wells, MLB Settles Lawsuit with Aaron Senne, Minor

League Players Over Compensation, B

LEACHER REP. (May 10, 2022),

https://bleacherreport.com/articles/10035470-mlb-settles-lawsuit-with-aaron-senne-minor-

league-players-over-

compensation#:~:text=The%20Senne%20v.,to%20pay%20for%20minor%20leaguers. Teams

will likely now pay players during spring training after the federal judge in the United States

District Court for the Northern District of California ruled that players were considered year-round

employees. Bill Shaikin, Federal Judge Rules Minor Leaguers are Year-Round MLB Employees,

L.A.

TIMES (Mar. 15, 2022), https://www.latimes.com/sports/story/2022-03-15/federal-judge-

rules-minor-leaguers-are-year-round-mlb-employees.

Cooper, supra note 25.

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of the pockets of MLB owners.

MLB, on its own, spent $1.32 million yearly in

lobbying efforts in Washington for three consecutive years until the bill was

passed.

Thus, the total amount spent lobbying between both MLB and MiLB

to get the bill passed was $4,185,000, which would cover the current yearly

salary of roughly 400 minor league players.

MiLB’s lobbying efforts to cut the salaries of players were pitched as

necessary to ensure that America’s pastime would be saved, as evidenced by the

Act’s name.

MiLB team owners, such as four-team owner Dave Heller, were

motivated to get the legislation passed: “We were told very clearly if we didn’t

get that thing passed, we would be staring down the barrel of contraction.”

However, the 30 MLB franchises earned, on average, about $330 million each in

revenue during the 2018 season.

Additionally, MLB as a whole has been

growing, and the league set a season record in 2019 with over $10.7 billion in

revenue.

Despite these enormous profits coupled with the passage of the Save

America’s Pastime Act, MLB proved to MiLB owners and Congress it could not

be trusted. MLB proceeded to cut 40 minor league teams in December of 2020—

one-quarter of its total affiliates

—highlighting the need for more conformity

among the teams. A bipartisan congressional task force, the Save Minor League

Baseball Task Force, fought but ultimately failed to save the MiLB teams in their

Id. MiLB spent $150,000 in 2015 lobbying in Congress and $105,000 in 2016. See Client

Profile: Major League Baseball, O

PEN SECRETS, https://www.opensecrets.org/federal-

lobbying/clients/summary?cycle=2016&id=D000072784 (last visited Nov. 8, 2022). MiLB spent

$60,000 per year in 2017 and 2018. Id.

Id. The league reduced its lobbying budget in 2019 and 2020 to a humble $1.24 million. Id.

The MLB was second in professional league lobbying to only the NFL, who spent $1.35 million

in 2019. Emma Baccellieri, What Did Your Favorite League Spend on Federal Lobbying in 2019?,

PORTS ILLUSTRATED (Feb. 14, 2020), https://www.si.com/mlb/2020/02/14/nfl-nba-nhl-lobbying-

us-government.

The sum of both MLB and MiLB spending is $4,185,000. High-A player salaries are

$10,500 for the year as of 2021. Fagan, supra note 4. There are 30 high-Class A MiLB teams, and

each high-Class A team has a roster limit of 30 players. How Many Players Make Up a Baseball

Team, I

NNINGACE (Feb. 9, 2022), https://inningace.com/faqs/how-many-people-on-a-baseball-

team/.

Welch, supra note 60.

Why MLB’s Minor Leagues as You Know Them Will End Sept. 30, ESPN (Sept. 3, 2020),

https://www.espn.com/mlb/story/_/id/29795127/why-mlb-minor-leagues-know-end-sept-30

[hereinafter Why Minor Leagues].

Id.

Jabari Young, Major League Baseball Revenue for 2019 Season Hits a Record $10.7 Billion,

CNBC (Dec. 22, 2019), https://www.cnbc.com/2019/12/22/report-mlb-revenue-for-2019-season-

a-record-10point7-billion.html. It should be noted that a lot of this money stems from media rights

deals. See id.

Andrew Martin, MLB Dropping 40 Minor League Teams is Baseball Treason, MEDIUM

(Dec. 11, 2020), https://medium.com/sportsraid/mlb-dropping-40-minor-league-teams-is-

baseball-treason-c21463ca84b3.

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respective districts.

Over one hundred members of Congress opposed MLB’s

plan to downsize and wrote a letter of opposition to MLB.

The task force

highlighted the importance of protecting MiLB. Economically, Connecticut

Congressman Courtney emphasized the jobs that MiLB provides to thousands of

Americans in small communities.

Some also highlighted how MiLB brings

entertainment and town pride.

Others cited how many clubs are involved in

youth clinics for children in the community and provide donations and volunteer

hours to charities and schools in need.

Despite Congressional attempts, MLB continued with its plans to cut the

40 clubs. There is a new uniformity that comes with these changes, and now “all

30 MLB franchises will have a Class AAA team, a AA team, a high-Class A and

low-Class A team, along with developmental teams and personnel at complexes

in Arizona, Florida, and the Dominican Republic.”

In order to further

“depress[] the need for additional affiliates,” the annual amateur draft is now

only 20 rounds instead of 40.

Many minor league owners, who worked hard and invested money into

saving their teams, and Congress, who worked with MLB to pass the Save

America’s Pastime Act, felt betrayed by this news.

West Virginia Senator

Shelley Moore Capito said the following about MLB’s elimination of 40 teams:

One of the things that kind of burns me . . .they really leaned and

relied on minor league baseball to come to people like me and

say, “This is going to harm our teams.” And now here we are.

“Guess what: You’re going to lose all four of your teams in West

Virginia.” Huh?

Lori Trahan, supra note 3.

Id. See also Bradford William Davis, More than 100 Members of Congress Write to MLB

Commish Over ‘Radical’ Plan to Eliminate Minor League Teams, N.Y.

DAILY NEWS (Nov. 19,

2019, 4:04 PM), https://www.nydailynews.com/sports/baseball/ny-congress-letter-rob-manfred-

minor-leagues-20191119-w6z3vfhqhbhahouumkkgxbpubu-story.html. The actual letter can be

found here: https://trahan.house.gov/uploadedfiles/trahan_mckinleymlb_letter.pdf.

Lori Trahan, supra note 3.

Id.

Lacques, supra note 16. AAA, AA, high-Class A and low-Class A are the names of different

levels of minor league baseball in order from highest to lowest level. In other words, AAA is the

level closest to the major leagues, and low-Class A is the lowest level team that MLB contracts

with.

Id.

Why Minor Leagues, supra note 69.

Id.

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It is true: West Virginia lost all four of its minor league clubs, whose

founding go back over a century.

These clubs have been called “important

cultural bridge between Appalachia and the country’s richer cities.”

Some

teams have returned, joining independent leagues, but they are no longer

affiliated with MLB or MiLB.

III.

PENDING FIXES

It is clear that changes need to be made within MLB and its antitrust

exemption. With the threats of ending the antitrust exemption,

MLB is trying

to solve the players’ concerns on their own as an attempt to halt that process.

Furthermore, in 2021, the Supreme Court unanimously held that NCAA’s cap on

student academic benefits violated federal antitrust laws in NCAA v. Alston.

Thus, college baseball players can now make money based on their name, image

and likeness while at the same time receiving a full scholarship. With similar

development opportunities presented by MiLB, college baseball players are in

position to have a better lifestyle without sacrificing their dreams of playing

baseball at the major league level. Moreover, in the Alston opinion, Justice

Gorsuch openly acknowledged the criticisms of baseball’s antitrust exemption.

In light of this, a formerly affiliated MiLB team has filed a new lawsuit in the

Southern District of New York with the hopes of overruling the archaic decision

once and for all.

This section will discuss these pending fixes and their viability.

John W. Miller, West Virginia Officially Loses all Four of Its Minor League Baseball Teams,

HE MOUNDSVILLE BLOG (Dec. 10, 2020), https://moundsville.org/2020/12/10/west-virginia-

officially-loses-all-4-of-its-minor-league-baseball-teams/.

Id.

Baseball has returned to Charleston, WV, as an independent league that is not affiliated

with MLB. Paul Caputo, West Virginia Power Rebrand as Charleston Dirty Birds, S

PORTS LOGO

NEWS (Sept. 29, 2021), https://news.sportslogos.net/2021/09/29/west-virginia-power-rebrand-as-

charleston-dirty-birds/baseball/. The Charleston Dirty Birds play in the Independent Atlantic

League of Professional Baseball. The struggle with independent leagues comes from competing

against the legalized monopoly that is MLB. Id.

Olafimihan Oshin, Sanders Calls for End to MLB Antitrust Exemption, THE HILL (Mar. 10,

2022, 5:58 PM), https://thehill.com/regulation/business/597767-sanders-calls-for-end-to-mlb-

antitrust-exemption/.

See, e.g., Mark Feinsand, MLB to Improve Housing for Minor Leaguers, MLB (Oct. 17,

2021), https://www.mlb.com/news/mlb-to-upgrade-minor-league-housing-policy.

141 S. Ct. 2141 (2021).

Id.

Chelsea Janes, A Newly Filed Lawsuit is Trying to Upend Baseball’s Century-Old Status

Quo, W

ASH. POST (Jan. 8, 2022, 4:54 PM),

https://www.washingtonpost.com/sports/2022/01/08/mlb-antitrust-lawsuit/.

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2023] MINOR LEAGUE WITH A MAJOR ISSUE 13

A. MLB’s Solution

MLB has decided to fend off fights against them with the façade of

increased MiLB player rights. In October of 2021, MLB announced that the

league will provide housing to certain MiLB players.

The plan was announced

as part of the league’s efforts to revamp the minor league system, which began

last year with slight salary increases.

Approximately 90% of minor league

players are covered under this new policy.

The remaining 10% include those

players who are signed to major league contracts or those who have a minor

league contract of $100,000 or more.

MLB will be responsible for housing within a reasonable and

commutable distance from the ballpark for players either at spring training or in

any level of the minor league.

The League will pay for basic utility bills as well,

and the apartments must be furnished with no more than two players per

bedroom.

If necessary, the League will have to cover hotel costs that meet these

qualifications.

Players, however, have the option to opt out of this housing

deal.

While on its face this may seem like a victory for many players who have

embraced terrible living conditions, this deal may be nothing more than an

attempt to hold off on actual progress. After the announcement, some former

players took to Twitter to highlight the issues they faced in their first minor

league apartments, one of which came from former Marlins pitcher Tom

Koehler.

That photo showed at least three mattresses on the floor of one shared

room and all of the players’ clothing in athletic bags.

Feinsand, supra note 86.

Id. Despite being 38–72% higher, these salary increases are arguably a minimal effort

considering that players still work multiple jobs in order to make ends meet. Jeff Passan, Major

League Baseball to Require Teams to Provide Housing for Minor League Players Starting in 2022,

ESPN (Oct. 17, 2021), https://www.espn.com/mlb/story/_/id/32419545/major-league-baseball-

require-teams-provide-housing-minor-league-players-starting-2022-sources-say.

Steve Gardner, MLB Owners Unanimously Vote to Provide Housing for Minor League

Players, USA

TODAY (Nov. 18, 2021),

https://www.usatoday.com/story/sports/mlb/minors/2021/11/18/mlb-provide-housing-minor-

leaguers-starting-2022-season/8670217002/.

Id.

James Wagner, M.L.B. Finalizes Plan to Provide Housing for Minor Leaguers, N.Y. TIMES

(Nov. 19, 2021), https://www.nytimes.com/2021/11/19/sports/baseball/mlb-housing.html.

Id.

See, e.g., Tom Koehler (@TKREFRESH22), TWITTER (Oct. 17, 2021, 6:37 PM),

https://twitter.com/TKREFRESH22/status/1449867104551948292.

Id.

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Advocates for Minor Leaguers (“the Advocates”), a non-profit advocacy

group founded in part by Ty Kelly, released a statement on social media about

the “historic victory.”

100

However, the Advocates then continued:

With housing addressed, our efforts now turn to tackling low,

seasonal pay. Most Minor Leaguers make less than $15,000 per

year and won’t receive their next paycheck until April [of 2022].

For the next six months, they will spend hours each day

training—as required by contract—while trying to balance

second and third jobs to make ends meet. Like housing six

players in a two-bedroom apartment, this is a broken model from

a bygone era. Minor Leaguers will not rest until they receive the

livable annual salary they deserve.

101

This statement makes clear that this housing solution is merely a bandage

stuck on a much larger problem. It would be erroneous for MLB to solve the

issues of the MiLB system without any legislative or judicial intervention.

The primary issue of MLB attempting to mitigate the league’s

grievances may be illustrated by an analogous situation: the early coal towns in

Appalachia. In the early 1900s, 80% of coal miners in West Virginia lived in

company towns, which were owned and fully operated by their employers.

102

Coal companies were able to retain employment by providing cheap, identical

housing for all individuals.

103

Furthermore, companies who controlled these

towns were not threatened by any competition—essentially functioning as a

monopoly—and therefore could set prices as they pleased.

104

Without any

government intrusion, companies could exploit their workers and require 14+

hour work days.

105

Aside from the instances where coal miners could save

enough to buy a car and leave town, employees and their families “were totally

dependent on the companies for all services.”

106

The exploitation of coal miners

continued the cycle of poverty and control in Appalachia.

With the recent announcement of being provided housing, a new

generation of minors is seeing the same issues persist today. There is an eerie

100

MiLB Players (@Milb_players), TWITTER (October 17, 2021, 6:45 PM),

https://twitter.com/Milb_players/status/1449869249762275330. The Advocates was founded and

is spearheaded by former minor league players. See About, ADVOCATES FOR MINOR LEAGUERS,

https://www.advocatesforminorleaguers.com/about (last visited Nov. 8, 2022). The executive

director Harry Marino is a former minor leaguer and is now an attorney. He clerked for two federal

judges and worked as a litigation associate before becoming involved in the non-profit. Id.

101

@Milb_players, supra note 100.

102

Company Towns, COAL HERITAGE,

https://coalheritage.wv.gov/coal_history/Pages/Company-Towns.aspx (last visited Nov. 8, 2022).

103

Id.

104

Id.

105

Nick Mullins, Coal Mining’s Dark Past, PARTS UNKNOWN (Apr. 26, 2018),

https://explorepartsunknown.com/west-virginia/coal-minings-dark-past/.

106

Company Towns, supra note 102.

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resemblance between what MLB is doing and what the coal companies did in the

early 1900s. By providing housing, MLB is acting under the guise of giving

players rights whilst actually retaining full control. This may help relieve the

players’ temporary housing woes, but without a neutral overseeing entity, players

will be left virtually powerless against their employer.

B. Lawsuit

Others have attempted to fight MLB’s antitrust exemption through

litigation.

107

In December of 2021, a lawsuit was filed against the MLB in the

Southern District of New York, which directly attacks MLB for the elimination

of 40 minor league teams.

108

Nostalgic Partners, L.L.C. et. al. v. Office of the

Commissioner of Baseball

109

alleges that MLB’s decision to eliminate 40 teams

violates the Sherman Antitrust Act.

110

The hope is to appeal this decision up to

the U.S. Supreme Court, which will then overturn Federal Baseball once and for

all.

111

Specifically, the lawsuit alleges that in 2020, MLB allowed the PBA to

expire and “announced the Takeover Plan, wherein each MLB club jointly

agreed to implement a new minor league system, wholly controlled by MLB and

its member teams, and to artificially constrict the number of minor league teams

allowed to participate within it.”

112

MLB Clubs jointly agreed to no longer

affiliate with the 40 ousted teams that it argues “fell victim to a group boycott.”

113

Further, the lawsuit alleges that there is “no plausible procompetitive

justification for this anticompetitive agreement” and instead was only done to cut

expenses, which primarily consists of minor league player salaries.

114

107

One such class action lawsuit, Senne v. Kansas City Royals Baseball Corp., 934 F.3d. 918

(9th Cir. 2019), recently earned preliminary approval to settle in 2022. Eligible players could split

a total of $185 million. J.J. Cooper, MiLB Players’ Wage Case Gets Preliminary Settlement

Approval, B

ASEBALL AM. (Aug. 29, 2022), https://www.baseballamerica.com/stories/milb-

players-wage-case-gets-preliminary-settlement-approval/. Senne, filed in 2014, comprised of

current and former minor league players who sought relief for MLB’s violations of the Fair Labor

Standards Act for failing to pay players during spring training. Senne, 934 F.3d. at 924.

108

Brendan Kuty, Ex-Yankees Minor-League Team Rips MLB in New Lawsuit, NJ.COM (Dec.

20, 2021), https://www.nj.com/yankees/2021/12/ex-yankees-minor-league-team-rips-mlb-in-new-

lawsuit.html.

109

Complaint, Nostalgic Partners, L.L.C. v. Off. of the Comm’r of Baseball, No. 1:21-CV-

10876 (S.D.N.Y. filed Dec. 20, 2021), ECF No. 1.

110

Janes, supra note 89.

111

Id.

112

Complaint at 15, Nostalgic Partners, L.L.C. v. Off. of the Comm’r of Baseball, No. 1:21-

CV-10876 (S.D.N.Y. filed Dec. 20, 2021).

113

Id. at 16.

114

Id.

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Nostalgic Partners cites NCAA v. Alston

115

as its good faith belief that

the Supreme Court will “no longer apply the ‘unrealistic,’ ‘inconsistent,’ and

‘aberration[al]’ baseball antitrust exemption if presented with a proper case for

reconsidering it.”

116

It then states that this is the perfect case to do just that.

117

Although Supreme Court dissents have previously stated the need for the

court system to fix the problem it created by itself,

118

there is no guarantee that

this will ever come to fruition. There have been other recent attempts to overrule

Federal Baseball that have failed.

119

In Miranda v. Selig,

120

minor league players

brought an action for an antitrust violation, arguing that MiLB preventing

horizontal competition violated antitrust laws.

121

The district court dismissed the

suit because Supreme Court and Ninth Circuit precedent barred the claim.

122

Moreover, because Congress excluded Minor League Baseball from the Curt

Flood Act, the Miranda plaintiffs did not have an avenue for relief.

123

Thus, it is implausible for any court to blatantly go against Supreme

Court precedent because of Alston’s dicta, which was emphasized by the

Nostalgic Partners plaintiffs themselves in their Second Circuit brief on

appeal.

124

Yet, the ultimate goal to appeal Nostalgic Partners to the Supreme

Court to officially overrule Federal Baseball is lofty. Not only could this take

years as the case is only at the appellate level,

125

there is no guarantee that the

Court would agree to hear this case from the over 7,000 petitions for certiorari

each year.

126

Even more problematic, the introduction of the Curt Flood Act in 1998

since the Federal Baseball decision makes the goal of overruling Federal

115

141 S. Ct. 2141 (2021). In the Alston decision, the Supreme Court specifically

acknowledged the primary criticisms of the Federal Baseball decision and the refusal to extend

that reasoning to other sports leagues.

116

Complaint at 4, Nostalgic Partners, No. 1:21-CV-10876, ECF No. 1.

117

Id.

118

Flood v. Kuhn, 407 U.S. 258, 292 (1972) (Marshall, J., dissenting).

119

See, e.g., Miranda v. Selig, 860 F.3d 1237 (9th Cir. 2017).

120

Id.

121

Id. at 1239.

122

Id.

123

Id. at 1243.

124

Brief and Special App’x for Plaintiffs-Appellants at 37, Nostalgic Partners, L.L.C. v. Off.

of the Comm’r of Baseball, No. 20-02859 (2d Cir. Filed Jan. 9, 2023). Plaintiffs are actively

encouraging the Second Circuit to apply existing precedent “so that Plaintiffs May Seek to

Overturn It.” They are encouraging the court to “dispatch this case to the Supreme Court with a

message attached: Enough already.” Id.

125

The District Court granted Defendant’s motion to dismiss in October of 2022, and in January

of 2023, Plaintiffs filed their brief in the Second Circuit. See id.

126

About the Supreme Court, U.S. COURTS, https://www.uscourts.gov/about-federal-

courts/educational-resources/about-educational-outreach/activity-resources/about (last visited

Nov. 8, 2022).

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Baseball even more improbable. Congressional inaction was noted in both the

Toolson and Flood decisions as a reason to not overturn Federal Baseball,

127

emphasizing the need for legislation to remedy any issues with MLB’s antitrust

exemption.

128

This is problematic because Congress has now written the antitrust

exemption into law.

129

First, this Act states that only major league baseball

players have standing to sue for antitrust violations related to employment.

130

Second, the Act explicitly prohibits MiLB players and other stakeholders from

challenging MLB under antitrust laws. Importantly, the Act states:

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:

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 . . .

. . . the relationship between organized professional major

league baseball and organized professional minor league

baseball, or any other matter relating to organized professional

baseball’s minor leagues . . . .

131

Thus, Nostalgic Partners likely does not have standing to even bring this

lawsuit. By specifically exempting minor league baseball and any matter relating

to the relationship between MLB and MiLB, Congress has spoken and has

intended to prohibit an antitrust claim of this nature.

Thus, if Nostalgic Partners makes it to the Supreme Court on appeal, the

Court would have to analyze and overrule the Curt Flood Act, Federal Baseball,

Toolson, and Flood. If successful, Nostalgic Partners would have a meaningful

impact and would be a seminal case in player’s rights; however, the likelihood

of success here is slim.

IV.

PROPOSED SOLUTIONS

There are other options that MLB should seriously consider if they want

to help the minor league clubs and its players without losing its antitrust

exemption. The easiest and most ethical solution would be to pay a fair wage.

127

See Flood v. Kuhn, 407 U.S. 258 (1972); Toolson v. N.Y. Yankees, Inc., 346 U.S. 356

(1953).

128

Flood, 407 U.S. at 274.

129

See Curt Flood Act, 15 U.S.C.A. §26b(a) (West 1998).

130

Id. §26b(c).

131

Id. §26b(b) (emphasis added).

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This would not require the league to provide housing, and instead, minor leaguers

could use their income for their own housing. Furthermore, it would allow

players to grow and develop their skills without the added pressure of poverty-

like living conditions and multiple off-season jobs. This is a win-win for both the

league, who would see further developed players and a higher-caliber game

overall, and players, who would be paid a living wage to provide for themselves

even if playing in the majors does not come to fruition. As players are going so

far as calling the minor league system a mental health crisis,

132

a livable wage

would help to rectify MiLB on almost all fronts.

MLB has the funds to pay MiLB players a living wage. As noted, MLB

made $10.7 billion in revenue in 2019 before COVID.

133

That year, each MLB

team generated on average $345.8 million in revenue,

134

and even during the

shortened 2020 season, where teams could not profit from any ticket sales,

135

each MLB team on average still made over $122 million.

136

Excluding the NFL,

the World Series in 2021 was the most-watched television program of the year.

137

MLB continues to grow in popularity. The Atlanta Braves, who are owned by

Liberty Media and thus publicly present quarterly earnings, can provide insight

for the rest of the league’s increased earnings.

138

In Q3 of 2021, “revenues

jumped to $234 million with operating income of $30 million, an increase of

288% year-over-year.”

139

$222 million of the revenue was baseball related.

140

While the Braves are one of the higher earners in the league—and Q4 revenues

were even higher after their impressive 2021 World Series win—smaller market

132

Lee, supra note 18.

133

Young, supra note 71.

134

Average Annual Revenue Per Team in Major League Baseball from 2001 to 2020, STATISTA,

https://www.statista.com/statistics/265990/average-revenue-perfranchise-in-major-league-

baseball/ (last visited Nov. 8, 2022).

135

MLB did not allow fans at games in the 2020 season due to COVID-19. Kyle Glaser, MLB

Players Adjust to No Fans in the Stands in 2020, B

ASEBALL AM. (Sept. 9, 2020),

https://www.baseballamerica.com/stories/mlb-players-adjust-to-no-fans-in-the-stands-in-

2020/#:~:text=The%202020%20season%20has%20been,the%20season%20began%20July%202

136

Average Annual Revenue Per Team in Major League Baseball from 2001 to 2020, supra

note 134.

137

Maury Brown, Despite Myths Baseball is ‘Dying,’ Here’s Why MLB is Primed for Growth,

ORBES (Nov. 2, 2021), https://www.forbes.com/sites/maurybrown/2021/11/02/dispelling-myths-

late-world-series-starts-tv-viewership-and-mlb-is-dying/?sh=3052bb2f6029.

138

See Maury Brown, How Fast is MLB Bouncing Back from the Pandemic? One Club’s

Financial Details Give Clues, F

ORBES (Nov. 4, 2021),

https://www.forbes.com/sites/maurybrown/2021/11/04/how-fast-mlb-bouncing-back-from-the-

pandemic-one-clubs-financial-details-give-clues/?sh=6a8696bc3fc5. While many teams do not

release their financial information, the Atlanta Braves are owned by Liberty Media, and therefore

their finances are reported in every quarterly earnings report.

139

Id.

140

Id.

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teams, such as the Pittsburgh Pirates, may make up for lack of revenue with

revenue sharing funded by MLB’s luxury tax.

141

The Braves’ increased revenue

data provides insight for the overall trend of MLB.

142

Furthermore, the majority

of MLB owners are billionaires.

143

Despite the increase in revenue, the 2021

MLB payroll was the lowest it has been since 2015.

144

These numbers make clear

that MLB and its club owners have the money to pay a higher wage to MiLB

players if they so choose.

A look at other professional sports leagues better illustrates this point.

During any given season, MLB actually makes almost double the profits as

another major professional sports league: the National Hockey League.

145

However, minor league hockey players make a minimum salary of $50,000 per

season.

146

In the NBA G-League, which is the National Basketball Association’s

equivalent to MiLB, the lowest a player makes is $37,000 for the five-month

season, while select players may earn up to $125,000.

147

If pay were the primary issue and the only thing that needed to be fixed,

the solution is easy. If they so desired, MLB owners would not even have to pay

a living wage from their own pockets. It would cost $75 million to pay all 1,500

MiLB players $50,000 per year. In 2019, 68.5 million people attended an MLB

game.

148

Thus, by adding a surcharge, which may be as little as $1 on each ticket,

MLB owners would have more than enough money to pay the $75 million salary

to all minor league players without ever spending a dime of their own money.

Such a surcharge is minimal in view of the surcharges MLB allows its ticket

141

MLB owners pay a luxury tax if their payrolls are above a predetermined threshold at the

end of each season to promote competitive balance. Competitive Balance Tax, MLB,

https://www.mlb.com/glossary/transactions/competitive-balance-tax (last visited Nov. 8, 2022).

142

Id.

143

See Darragh McDonald, MLB Owners’ Net Worth, MLB TRADE RUMORS (Dec. 29, 2021),

https://www.mlbtraderumors.com/2021/12/mlb-owners-net-worth.html. The wealthiest MLB

owner is hedge fund manager Steve Cohen, who is worth around $17.5 billion. Id. See also Steve

Cohen, F

ORBES, https://www.forbes.com/profile/steve-cohen/?sh=db0c73563f82 (last visited Mar.

7, 2023) (updating Cohen’s real time net worth).

144

Maury Brown, 2021 MLB Final Player Payroll Show §168 Million Drop from Last Full

Season; Here’s Every Team’s Number, F

ORBES (Dec. 22, 2021),

https://www.forbes.com/sites/maurybrown/2021/12/22/2021-mlb-final-player-payrolls-show-

168m-drop-from-last-full-season-heres-every-team/?sh=3f69b3bf3999.

145

Marc Normandin, Why Minor League Baseball Players Haven’t Unionized, SB NATION

(June 5, 2018), https://www.sbnation.com/mlb/2018/6/5/17251534/mlb-draft-minor-league-

baseball-union-phpa.

146

Id. While there are considerably less minor league hockey players than MiLB players, the

point remains that MLB has the money to pay the players a fair wage.

147

Steve, What is the G League Salary 2021?, JUST LOVE BASKETBALL (Apr. 26, 2022),

https://justlovebasketball.com/g-league-salary/.

148

Owen Poindexter, MLB Attendance Hits 37-Year Low, FRONT OFF. SPORTS (Oct. 4, 2021,

6:19 PM), https://frontofficesports.com/mlb-attendance-hits-37-year-low/. Because the 2021

numbers reflected a COVID-19 season where many ballparks were not fully open until half-way

through the summer, the 2019 number more accurately reflects MLB attendance. Id.

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20 WEST VIRGINIA LAW REVIEW ONLINE [Vol. 125

brokers, such as Ticketmaster®, to charge. Moreover, since it is a per-ticket

surcharge, it would impact big market and small market teams proportionally.

While it would be encouraging for MLB to fix its own problems, history

has shown that its solutions might not be sufficient. Congress may actually be in

the best position to help MiLB, and Congress should seriously consider ending

the MLB antitrust exemption once and for all. Supreme Court decisions have

emphasized Congress’s duty as the one responsible to end or amend the

exemption if it so chooses.

149

In early 2021, members of Congress introduced an Act that would

eliminate baseball’s antitrust exemption.

150

However, it is unlikely that this will

gain traction because the reasons for doing so are highly incorrect. Senator Ted

Cruz introduced this bill as a threat after MLB moved the All-Star Game out of

Atlanta after Georgia restricted their voting laws following the 2020 election.

151

One Senator cited the reason for introducing this bill as: “[a] corporation that

happily does business with the communist regimes in Cuba and China but caves

to woke CEOs who want to punish states with Voter ID does not deserve any

special immunities in antitrust law.”

152

Framing this bill as a way to punish the

“Woke Left”

153

makes clear that it was nothing more than a threat to MLB and

not a serious proposition due to the hardships minor league players face. By

introducing the bill in this manner, these representatives are essentially using the

players and their livelihoods as political pawns in a petty fight with MLB. It is

unfortunate because Congress ending the antitrust exemption is essential for

players’ rights, but without a good faith reason for doing so, it might never come

to fruition.

More recently, Congress has again attempted to introduce legislation to

remove MLB’s antitrust exemption.

154

Bernie Sanders introduced the “Save

American Baseball Act” after the MLB lockout ended, citing the unacceptable

behavior of MLB’s billionaire owners.

155

Throughout the summer of 2022,

Advocates for Minor Leaguers as well as MLB sent letters to the Senate Judiciary

Committee regarding the antitrust exemption, and the goal of at least some

senators is to question MLB Commissioner Rob Manfred under oath about not

149

See Toolson v. N.Y. Yankees, 346 U.S. 356 (1953).

150

Sens. Cruz, Lee, Hawley, Rubio, Blackburn Introduce Bill to Subject MLB to Antitrust Laws,

ED CRUZ FOR SEN. (Apr. 14, 2021), https://www.cruz.senate.gov/newsroom/press-releases/sens-

cruz-lee-hawley-rubio-blackburn-introduce-bill-to-subject-mlb-to-antitrust-laws.

151

See id.

152

Id.

153

Id. (South Carolina Representative Jeff Duncan “urge[s] [his] colleagues to stand strong

against the onslaught of the Woke Left on daily American life”).

154

Wilton Jackson, Sen. Bernie Sanders Creates Legislation to Remove MLB’s Antitrust Law

Exemption, S

PORTS ILLUSTRATED (Mar. 22, 2022), https://www.si.com/mlb/2022/03/23/senator-

bernie-sanders-new-bill-mlb-antitrust-law-exemption.

155

Id. See also @SenSanders, TWITTER (Mar. 10, 2022, 4:45 PM),

https://twitter.com/SenSanders/status/1502037919720165380/photo/1.

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only the exemption, but also regarding the treatment of minor league players.

156

Thus, although progress has been slow, there is a renewed hope that Congress

will be willing to make a change and end the coveted antitrust exemption.

CONCLUSION

MLB has enjoyed the federal antitrust exemption for 100 years now

despite decades of criticism from players, fans, and the legal system. This has

led to decades of often-overlooked struggles of minor league players at the hands

of their parent league. As a multi-billion-dollar industry, Federal Baseball’s

reasoning that MLB simply gives exhibitions of baseball was flawed logic in

1922 and is wholly inapplicable in 2022. While potential solutions are laudable,

the best option is for Congress to step in and change MLB’s antitrust status as it

relates to MiLB. MLB’s recent concessions to provide MiLB players with

minimal housing would not have helped Ty Kelly’s reliance on a pre-game meal

that might have consisted of two-day old reheated hotdogs. However, if

Congress does not protect the livelihoods of 1,500 minor league players across

the country, it may be time for the Court to step back in and attempt to overrule

Federal Baseball once and for all. Otherwise, we may see college baseball

flourish while MiLB itself may not be salvageable.

156

Bill Shaikin, Column: How one Chicago Cubs fan (who’s also a senator) is fighting for

minor leaguers, L.A.

TIMES (July 28, 2022, 4:00 A.M.),

https://www.latimes.com/sports/story/2022-07-28/durbin-mlb-has-real-challenges-in-building-a-

fan-base.

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