The Remaining Path Forward for Minor-League Players by Nathaniel Grow March 22, 2018 Much digital ink has been spilt regarding the plight of minor-league baseball players. Dating back to the filing of the first minor-league wage lawsuit in back 2014, countless pieces have been written denouncing Major League Baseball for paying minor-league players a sub-minimum wage. Indeed, the optics of an organization that generates $10 billion dollars per year in revenues electively deciding to pay thousands of its full-time employees at below a subsistence level is — needless to say — not great. So it was not surprising that the news that Congress appears posed to officially exclude minor leaguers from (at least some of) the protections afforded under federal wage and hour laws resulted in an immediate wave of outcry by numerous commentators. Specifically, as Sheryl Ring discussed earlier in the week, news reports emerged on Sunday night that, after years of persistent lobbying efforts, MLB was posed to succeed in persuading Congress to include a provision in its omnibus spending bill that would exempt minor-league players from Fair Labor Standards Act, the federal law establishing the minimum wage and overtime rules that millions of Americans take for granted. On Wednesday night, the actual language of the provision that Congress would be voting on was released: The continued underpayment of minor league baseball players is nearly law. On Page 1,967 of the new omnibus bill is an amendment that exempts minor league players from federal labor law. If Congress passes the bill by Friday, it's official. The language: https://t.co/oNXzB8iud4 pic.twitter.com/102mGFD3Mj — Jeff Passan (@JeffPassan) March 22, 2018 In some respects, the specific legislative language is better than critics had anticipated. Rather than entirely excluding minor leaguers from the right to the minimum wage — as had originally been feared — the provision’s focus was actually a bit narrower. Instead, it simply provides that minor league players are not entitled to overtime benefits when working more than 40 hours in a week, so long as they are otherwise paid a weekly salary compliant with the federal minimum wage (at least during baseball’s regular season). In other words, the exemption doesn’t deprive players of the right to the minimum wage, just to overtime compensation. Moreover, the provision also does not directly undercut the ongoing litigation over minor-league wages. Because the provision will only take effect once signed into law, MLB remains potentially liable legally for its prior failure to pay minor leaguers the minimum wage or overtime. That having been said, this language — assuming it is passed and signed into law on Friday, of course — still isn’t great from the perspective of minor-league players. Players will continue not to be paid for spring training, extended spring training, or (presumably) fall instructional leagues — nor for any offseason training work in which they participate. And despite not directly preempting the current minor-league wage litigation, the new provision will nevertheless complicate efforts to achieve reform via the courts. Indeed, much of the potential leverage that the plaintiffs had over MLB in the current lawsuit came not in the form of monetary damages for the league’s past underpayment of players, but instead from the possibility that MLB’s pay practices could be declared illegal in the future. This legislation — again, assuming it is enacted — removes that threat for MLB, at least under federal law. (Minor-league players may still be able to sue under state minimum-wage and overtime laws, although doing so would likely necessitate dozens of cases, substantially increasing litigation costs.) So while not completely marking the demise of the minor-league wage lawsuit, this provision nevertheless substantially reduces the odds of achieving meaningful reform through the judicial process. But that does not mean that all hope of reform is necessarily dead. Minor-league players have always had the ability to better their conditions themselves, should they decide to do so. Indeed, if minor-league pay and working conditions were ever going to be substantially improved, it wasn’t going to come from the current litigation — which only seeks to force MLB to pay players the bare minimum required under federal law — but instead would come from minor-league players finally taking matters into their own hands by forming their own union. A minor-league players union would have considerable new leverage over MLB. The existing minor-league wage scale would be subject to collective bargaining, for instance — as would MLB’s refusal to pay players for spring training, instructional leagues, or offseason work. Unionized minor leaguers would also be able to force MLB to negotiate regarding the quality of medical care and food provided to prospects, and could challenge the league’s existing penalty structure for the use of performance-enhancing and recreational drug use. This newest legislation does nothing to change that. Instead, the provision places the burden on current minor-league players to improve their circumstances themselves by forming a union. There are countless reasons why minor-league players haven’t formed their own union to date, of course. Many players would prefer to keep their heads down, rather than risk rocking the boat and jeopardizing a potential major-league career by taking a stand. Meanwhile, the career span of minor-league players is generally relatively brief, further disincentivizing players from doing the work necessary to organize a players association. In some cases, players from Latin American countries may not be familiar with our nation’s tradition of unionization, nor their rights under federal labor law. In other cases, U.S.-born players may generally be politically or philosophically opposed to organizing a new union (even if they are agreeable to joining the Major League Baseball Players Association, once eligible). So the odds that minor leaguers form their own union anytime soon is probably rather remote. Nevertheless, despite Wednesday’s legislation, a plausible path forward remains for minor-league players to improve their pay and working, should they wish to do so. One of the persistent questions underlying the recent legal efforts to improve minor-league wages has always been how much salience the issue had with those who are actually currently affected by MLB’s pay practices. While a few then-current minor-league players signed on to the class-action lawsuit and a few more spoke out about how the below-subsistence-level pay has affected their lives, the vast majority of minor leaguers have remained silent — at least publicly — about the sufficiency of their pay. It is now all but clear that the courts are not going to force MLB to improve the pay and working conditions for minor leaguers. And the league certainly isn’t going to do so voluntarily. So if minor leaguers do wish to improve their lot, it will be incumbent upon them to do so themselves, by forming a minor-league players union.