Dissecting Rob Manfred, Tony Clark on Minor-League Wages by Nathaniel Grow July 13, 2016 As has become customary, both Major League Baseball Commissioner Rob Manfred and Tony Clark, head of the Major League Baseball Players Association, held press conferences during All-Star week to field questions regarding various issues affecting the game. Unsurprisingly, one of the issues about which both men were asked concerned the ongoing litigation over the allegedly illegally low wages paid to minor-league players. For his part, Manfred insisted that the minor-league wage debate “is not a dollars and cents issue” for the league. Instead, he asserted that the league was merely concerned with the feasibility of applying these laws to professional athletes: “I want to take extra BP — am I working, or am I not working? Travel time. You know, is every moment that you’re on the bus, is that your commute that you don’t get paid for? Or is that working time? Where’s the clock, who’s going to punch a clock keep track of those hours?” “Who’s going to keep track of those hours? When you’re eating in a clubhouse with a spread that the employer provides, is that working time, or is that your lunch break? We can figure out the economics. The administrative burden associated with the application of these laws to professional athletes that were never intended to apply for professional athletes is the real issue.” Meanwhile, Clark contended that his hands are tied on the matter, since the MLBPA does not currently represent most minor-league players, and thus “legally [doesn’t] have the ability to negotiate on their behalf.” To some extent, both Manfred and Clark expressed fair and legitimate concerns regarding the issue. At the same time, however, further examination reveals that both statements appear to be somewhat disingenuous. Let’s begin with Manfred. To be fair, the Commissioner does raise some valid concerns regarding the feasibility of applying the minimum-wage and overtime laws to professional baseball players. Defining what a player’s “working hours” are would raise some novel — and potentially difficult — legal issues. That having been said, if MLB’s concern was really just the administrative burden that would be entailed by applying these laws to minor-league players, then the league would not currently be lobbying Congress for a bill entirely removing minor-league baseball players from the Fair Labor Standards Act (the federal minimum-wage and overtime law). As I noted last month, the MLB-backed “Save America’s Pastime Act” would create a new exception specifying that the federal minimum-wage and overtime rules do not apply to “any employee who has entered into a contract to play baseball at the minor league level.” If Manfred’s most recent comments were correct, and the minor-league wage issue truly isn’t a “a dollars and cents issue” for the league, then there would be no reason for MLB to pursue legislation completely removing minor-league players from the protection of the FLSA. Instead, the league could easily address its concerns regarding the administrability of the current law through other, less sweeping means. For example, if MLB were really concerned simply with resolving how to calculate players’ “working hours,” and not with paying minor-league players a living wage, then the league could instead seek legislation specifying that so long as minor-league players receive a certain minimum annual salary, then they are not entitled to additional minimum-wage or overtime compensation. As I’ve previously noted, for instance, the FLSA current specifies that certain “white collar” employees receiving a salary of at least $47,476 per year are not entitled to overtime compensation. Similarly, analogous provisions in the FLSA exclude other jobs from the overtime rules, while still ensuring that workers in those positions at least receive the minimum wage. So if Manfred were being sincere that the minor-league wage issue truly isn’t a question of economics for the league, then MLB should be seeking legislation that carves out an overtime exemption for minor-league players, while still ensuring that these players receive a living wage. However, that would, of course, require MLB to pay minor leaguers much, much more than the $3,300 per year that some are currently receiving for what has become, in effect, a year-round job. So despite Manfred’s insistence that minor-league wages aren’t “a dollars and cents issue” for the league, the fact that MLB is trying to completely remove minor-league players from the protection of both the federal minimum-wage and overtime laws suggests otherwise. Moveover, Manfred’s insistence that the issue isn’t an economic one for MLB was belied by the fact that he went on to warn that “this is an area where excessive regulation could have a really dramatic impact on the size of minor league baseball.” In other words, Manfred threatened that forcing MLB to pay its minor leaguers the minimum wage could result in teams having to cut their ties with one or more of their minor-league affiliates. While one can, of course, dispute the likelihood of such an outcome, it’s also altogether unclear why forcing MLB to abide by the federal minimum-wage and overtime rules would result in a shrinking of the minor leagues if MLB’s concerns over paying minor leaguers a living wage truly aren’t economic. So while Commissioner Manfred did raise some legitimate concerns over the administrability of applying the FLSA to minor-league players, his insistence that the issue is not an economic concern for the league strains credulity. Similarly, although fair enough on the surface, Tony Clark’s comments regarding the minor-league wage issue were also somewhat disingenuous. On the one hand, Clark is correct that the MLBPA currently lacks the legal authority to represent most minor-league payers, as only those on an MLB team’s 40-man roster are currently eligible to join the union. On the other hand, however, the union has nevertheless recently been all too willing to negotiate with MLB regarding draft and international signing bonus rules despite the fact that those rules explicitly apply only to prospective minor-league players who are ineligible to sign major-league contracts (and thus cannot immediately join the MLBPA upon entering professional baseball). Moreover, if Clark and the MLBPA truly wanted to to go to bat for minor-league players on the wage issue, they could easily decide to expand the union’s membership to include all minor leaguers, thereby giving the MLBPA the legal power to demand higher wages for at the minor-league level. Of course, by expanding the MLBPA’s membership, the union would take on the legal responsibility to fairly represent minor-league players, meaning that it would have to defend their rights just as stringently as it currently does for its major-league membership. This means that, in some cases, the union might be forced to make some trade-offs, with MLB players giving up something of value in order to better the working conditions of their minor-league brethren. Historically, this is a step that the MLBPA has simply been unwilling to take, despite whatever concern the union membership has expressed for minor-league players. So while Clark depicted his hands as being tied on the matter this week, that’s really not true. If the MLBPA were truly concerned with securing minor-league players a living wage, it could easily elect to expand its membership to include all professional players employed by MLB teams. Instead, like his predecessors at the head of the MLBPA, Clark appears to be content with prioritizing the interests of major-league players, even if it means that those playing at the minor-league level will be left to fend for themselves. And while that’s certainly within his and the union’s rights, it nevertheless undermines the credibility of his suggestion that the union lacks the means to push for change in this area. Clark and the MLBPA most certainly could make an impact in this area, if they wanted to do so.