Comment: Did the Supreme Court allude to problems for the MLB antitrust exemption?

The San Jose Athletics are expected to be in their second decade of life and in a sparkling new baseball stadium. Instead, the A’s get stuck in the cracking and leaking Oakland Coliseum, and in the unseemly position of threatening Oakland, flirting with Las Vegas, and hoping to secure a stadium deal somewhere.

San Jose wanted A’s, and A’s wanted San Jose. Under Major League Baseball’s territorial rules, the A’s needed the approval of the San Francisco Giants, or a 75% vote of MLB owners. The Giants refused and the league refused to put the question to a vote. San Jose sued, challenging baseball’s antitrust exemption.

San Jose has lost twice in court, both times before judges who were skeptical of the law but vowed to uphold it. Justice Ronald Whyte called the exemption an “aberration” which “makes little sense”. On appeal, Judge Alex Kozinski called the exemption “one of the most enduring anomalies in federal law.” No other sport has it.

But the exemption dates back to 1922, and neither Congress nor the Supreme Court saw fit to remove it.

On Monday, the Supreme Court raised the issue, at least in passing, amid a 36-page NCAA smackdown.

In writing on behalf of a unanimous court, Judge Neil M. Gorsuch cited evidence submitted by minor league lawyers, noting that the court refused to extend the exemption to other sports and recognized the criticism of what Gorsuch blatantly referred to as an antitrust exemption for professional baseball.

Harry Marino, the executive director of the rights group, said the court may have sent a signal: this case is not about baseball, but we would be happy to consider a case that is.

“The Supreme Court has gone out of its way to discuss the MLB antitrust exemption in a way that I think casts significant doubt on its position at this point,” Marino said Tuesday. “It at least seems like this group of nine is on some challenging level.”

In his concurring opinion, Judge Brett M. Kavanaugh said the NCAA controls the college athlete market and limits compensation to below-market rates, without any meaningful way for athletes to negotiate compensation.

By changing “the NCAA” to “Major League Baseball” and “College Athletes” to “Minor League” you get the end result that the lawyers submitted to the court: “The average annual salary of a minor league baseball player is between $ 4,000. and $ 14,000, placing many players below the federal poverty line.

Marino said: “The fundamental basis for the mistreatment of minor leagues is that MLB owners are exempt from antitrust laws, so they can come together and agree on minor league salaries.”

In 2016, MLB Commissioner Rob Manfred said minor league baseball was less like a career and “more like apprenticeship programs or artistic pursuits, where there are explicit exceptions to salary requirements and hours”. Kavanaugh explicitly targeted this kind of ‘love of the game’ logic: “Law firms cannot conspire for cabin attorney salaries in the name of providing legal services out of ‘love of the law’. Hospitals cannot agree to cap nurses’ income in order to create a ‘purer’ form of patient care. “

Major League Baseball declined to comment for this column.

Nathaniel Grow, an Indiana University professor who has written extensively on baseball’s antitrust exemption, said neither Gorsuch nor Kavanaugh’s opinions discussed the merits of the MLB exemption and said he would be “surprised” if Monday’s decision were to lead to its repeal.

In fact, he said, Congress and the Supreme Court have spoken on the issue for the past quarter century.

In 1998, Congress passed the Curt Flood Act, granting major league players the right to sue under antitrust laws, but specifically prohibiting minor league players from doing so.

In 2017, the Supreme Court declined to consider a case in which minor leaguers alleged MLB violated antitrust laws and colluded to cut player salaries.

In 2018, two years after Manfred’s speech, Congress passed a law requiring teams to pay the minimum wage for minor leaguers, but without overtime pay, and with no obligation to pay players outside of league season. minors of five months.

As Kavanaugh noted, collective bargaining is an alternative to law and litigation. In hockey, the minor leaguers have a strong union. In baseball, with careers short and teams fear retaliation against organizers, organizing efforts have made little headway.

In 2018, the court declined to consider two more challenges to baseball’s antitrust exemption. Kavanaugh has been one of the two new judges since then, and perhaps now the minimum of four judges would agree to consider such a challenge.

Or maybe not. In 2015, when San José requested a Supreme Court hearing, the court said no.