The Minor League Wage Battle Isn’t Over After All by Sheryl Ring January 31, 2019 Last year, Nathaniel Grow and I each wrote that it looked like the longstanding battle over minor league wages might be on the verge of ending with the passage by Congress of the Save America’s Pastime Act, a statute that had the dual effect of capping minor league players’ pay and threatening the existence of Independent Leagues. Despite Major League Baseball’s success in lobbying for and obtaining passage of the Act, it seems that the league isn’t done yet, moving its fight from the federal level to the states. Last week, Ben Giles of the Arizona Capital Times reported that MLB is backing a bill introduced in the state legislature by Representative T.J. Shope that would exempt minor leaguers from Arizona’s state minimum wage laws. HB 2180 would carve out minor league baseball players in Arizona law by enshrining the exemption in federal law in state statute. If signed into law, the bill also applies retroactively, meaning teams would be free from liability against any prior claims that the law was violated. Now, you might be wondering why MLB is going to such lengths to exempt minor leaguers from state minimum wage laws when the federal statute is already on the books. The answer is pretty straightforward. Even though there is a federal minimum wage – it is set at $7.25 per hour – states also have their own minimum wage laws, many of which require higher hourly rates than the federal statutory minimum. The way the law is written, the federal minimum wage acts as a floor, meaning that a state is legally allowed to require a wage that is greater than the federal wage, but can’t have a minimum wage that falls below it. In Arizona, the current minimum wage is $11 per hour, and will rise to $12 an hour in 2020. As a result, even to the extent minor leaguers’ access to federal minimum wage laws are limited by the new federal statute, they may well be entitled to the higher state minimum wage. Now Arizona has no full-season minor league teams. But it does play host to the Cactus League and the Arizona Fall League. From a legal perspective, the primary target of HB 2180 is likely spring training, where minor leaguers aren’t paid at all, let alone below the minimum wage. Shope justified legal protections for non-payment of minor league players in the Cactus League by calling Spring Training “essentially a tryout. You’re not on the team yet.” Last year, we discussed MiLB player-turned-attorney Garrett Broshius and his proposed class action lawsuits alleging that minor league pay violated federal wage and hour laws. Broshius’ primary causes of action were mooted by the Save America’s Pastime Act, and so many observers thought his cases were over. But recall that an employer has to honor state minimum wage law where it’s higher than the federal law, and so Broshius’ causes of action at the state level remained in play. Broshuis is seeking class action status in a lawsuit against Major League Baseball in Florida and Arizona, the league’s two homes for spring training. Arizona is home to the Cactus League, the spring training league for the Angels, Diamondbacks, Cubs, Reds, Indians, Rockies, White Sox, Royals, Dodgers, Brewers, Athletics, Padres, Giants, Mariners, and Rangers. A federal judge denied Broshuis’s request but he appealed and is waiting on a ruling. HB 2180 would seem to constitute an attempt to thwart Broshius’ class action suit in Arizona, just as the Save America’s Pastime Act did at the federal level. And the bill’s ties to Major League Baseball are clear, as Shope forthrightly told the Arizona Republic’s Mitchell Atencio. Shope said the MLB approached him about introducing a bill and he was happy to bring it to the Legislature, although he wasn’t sure it furthered the intent of the voters. That is required for laws that make changes to voter-approved measures such as the minimum wage. “Major League Baseball is a major component of Arizona’s commerce and tourism,” Shope said. He said any business that relies on tourism is grateful for the minor league system in Arizona and the tourism it generates. Shope said he told the league that it would take a lot of effort to change the state’s minimum wage laws. In addition to furthering the intent of voters, changing the minimum wage rules would take approval of three-fourths of the Legislature to be sent to the governor’s desk. “I think it’s ripe for conversation, but maybe it’s not ready for prime time and Major League Baseball will figure that out. Forty-five votes is a very high number.” That “intent of the voters” language is required by a statute called the Arizona Voter Protection Act, which is designed to restrict the ability of the state government to overturn or modify laws passed by ballot initiative or referendum. Arizona’s minimum wage increase was mandated by a voter referendum, so Arizona law requires that any modifications to it reflect the intent of the people who voted to enact it. That Shope introduced and sponsored a bill that he himself found possibly contrary to that intent is eyebrow raising. In response, we’re seeing rumblings that the MLB Players Association may get involved in this fight for the first time. Ian Penny, general counsel to the MLBPA, told Giles that “[i]t is fundamentally unjust to deny professional baseball players the basic protection of the minimum wage laws, especially at a time when clubs are reporting record revenues.” That’s strong language coming from the MLBPA, especially considering the union doesn’t represent minor leaguers. It’s also a significant departure from previous approaches the union has taken to issues of minor league compensation. This is how St. Louis Cardinals southpaw and MLBPA Executive Board member Andrew Miller discussed the issue with Bill Shaikin last year: “In negotiations, everything is essentially traded dollar for dollar . . . . There might be a possibility for us to pressure the MLB side to raise wages on the minor league side. However, we would probably be sacrificing, say, arbitration, or some sort of dollars that are being spent on us elsewhere. That is just the reality of the deal.” So while the MLBPA taking a public stand in defense of minor leaguers might not be a seismic shift in how the union does business, it could signal a meaningful one. Perhaps this is because, with Ken Rosenthal recently reporting that the MLBPA sees a “palpable threat” of a work stoppage, the union is reassessing its public communications strategy. It seems unlikely that the union will welcome minor leaguers into its ranks, although there are is discussion that the MLBPA is quietly looking into helping minor leaguers organize their own union, which is itself a relatively new approach. But the MLBPA adopting the cause of minor leaguers in a meaningful way, even if it doesn’t bargain on their behalf, would represent a sea change in baseball economics. The new posture makes sense for the MLBPA. Paying minor leaguers more could reduce the number of talented youngsters turning away from baseball in favor of basketball and football. A few weeks of minimum wage pay is hardly enough to stem that tide on its own, but it is a step in the right direction. Backing this cause is also an easy public relations win for the MLBPA, which is badly in need of one after this offseason. Some fans have proven to be less than sympathetic to the fight over major league free agency; advocating for players whose salaries are a lot closer to those of the fans in the stands may help players begin to bridge the sympathy gap. As baseball’s labor unrest continues to grow, minor league wages will continue to be a source of contention and a site of contestation. Contrary to what we may have thought last year, this fight isn’t over.