Minor League Compensation and the Save America’s Pastime Act of 2018 BY MATTHEW DURHAM, ESQ. “BASEBALL IS LIFE. The rest situation means that approximately 90 For their services, minor leaguers is just details.” To members percent of MLB draftees spend their are paid a salary by their affiliated MLB entire professional careers (however franchise according to a wage structure of the Green Valley High long or short they may be) grinding it established by MLB. Until recently, School (Henderson, Nevada) out with the Albuquerque Isotopes, the these salaries ranged from $1,100 per varsity baseball team in the Binghamton Rumble Ponies, the Hartford month to an estimated $2,150 per month. mid-1990s, this wasn’t just Yard Goats and the other nearly 250 However, players are only entitled to be a catchphrase on a t-shirt; Minor League Baseball teams. To some, paid during the championship season, simply being paid to play a game they which is, at its longest, approximately it was gospel. We lived and love would seem like a dream come true. five months. The players are not paid breathed baseball, and it But making ends meet can be as daunting for mandatory participation in spring showed. Between 1993 a task as making it to the big leagues. training, off-season workouts or and 1998, Green Valley The recent amendment to the Fair Labor instructional leagues. Thus, many minor Standards Act (FLSA) will ensure that it league players earn far less than the won six straight Nevada remains that way. federal minimum wage and less than the State Championships in federal poverty level—currently $12,140 baseball, and no fewer than Minor League Work Hours annually for an individual or $25,100 for 15 players from these teams and Compensation a family of four. ended up being drafted by During the minor league Alleged FLSA Violations a Major League Baseball championship season (the regular season (MLB) franchise. One of my and playoffs), players often work between In 2014, former minor leaguers th 60 and 70 hours per week. These hours brought a putative class action against teammates was drafted 10 are spent: MLB, the then-MLB commissioner in the first round, straight out and several MLB franchises (MLB 1. Participating in mandatory Defendants), challenging what they of high school. He, and no pregame activities, such as contend is the MLB Defendants’ doubt all of the other players stretching, batting practice and exploitation of young players’ desires fielding practice; who were drafted, dreamed of to play baseball for a living, by grossly making it to “the Show” and 2. Playing games six or seven days underpaying them, in violation of federal playing baseball for a living. a week, with a day off only once and state laws. See Senne v. MLB, No. Unfortunately for most of every two to three weeks; 3:14-cv-00608-JCS (N.D. Cal. Feb. 7, them, the statistics were not 3. Performing mandatory strength 2014). In Senne, the plaintiffs—who and conditioning workouts; and refer to MLB as a cartel, having a “long, in their favor. infamous history of labor exploitation 4. Packing for, and traveling to, dating to its inception”—allege that Although individuals drafted in the away games—usually by bus. despite often working 60 to 70 hours opening rounds of the MLB draft have per week, most minor leaguers only much better odds of making it to the earn between $3,000 and $7,500 big leagues than those drafted in for the entire year. The later rounds, it is estimated plaintiffs contend that that only 10 percent of while MLB salaries all MLB draftees ever have increased by achieve their goal more than 2,000 of playing for an MLB team. This August 2018 Nevada Lawyer 17 continued from page 17 a contract that pays minimum wage for a Minor League Compensation and the 40-hour workweek, i.e., $1,160 per month. Save America’s Pastime Act of 2018 Specifically, the 2018 SAPA exempts: any employee employed to play baseball percent since 1976, minor league salaries Save America’s Pastime who is compensated pursuant to a have, on average, increased only 75 contract that provides for a weekly salary Act of 2016 for series performed during the league’s percent. Meanwhile, inflation has risen by In response to the ongoing Senne more than 400 percent over that same time championship season (but not spring litigation, and as a result of extensive training or the off season) at a rate that is period. Thus, according to the plaintiffs, lobbying by MLB, on June 24, 2016, minor-league salaries have effectively not less than a weekly salary equal to the Congresswoman Cheri Bustos (D-Ill.) minimum wage under section 6(a) for a declined by 5 percent since 1976. and Congressman Brett Guthrie (R-Ky) workweek of 40 hours, irrespective of the The plaintiffs’ claims inSenne are introduced a bill curiously dubbed the Save number of hours the employee devotes to based in part on the FLSA. The FLSA America’s Pastime Act (2016 SAPA). baseball related activities. establishes federal minimum wage and The stated purpose of the 2016 SAPA was overtime requirements, and sets forth the to “clarify” certain requirements under Consolidated Appropriations Act, 2018, types of employees that are exempt the FLSA with respect to minor-league H.R. 1625, 115th Cong. § 201 (2018). from the same. See 29 U.S.C. players. See Save America’s Pastime §§ 206, 207, 213. The Act, H.R. 5580, 114th Cong. (2016). In Thus, while minor-leaguers who had plaintiffs contend reality, however, the purpose of the 2016 been making the minimum $1,100 per month that minor leaguers SAPA was to exempt such players from effectively received a $60 per month raise, the are covered by the FLSA’s minimum wage and overtime 2018 SAPA mandated that minor-leaguers the FLSA and requirements. Id. at § 2. are exempt from the FLSA’s overtime that the MLB Public reaction to the 2016 SAPA requirement and from being paid during spring training and during the off-season. Defendants was swift and negative, and sports writers The 2018 SAPA had zero co-sponsors, violated the did not mince words when expressing their and Congress passed the bill as part of same by opinions of the act: engaging in an unrelated piece of legislation without a policy and • “Despicable ‘Save America’s allowing time for debate or amendments. practice of Pastime Act’ aims to screw minor In so doing, Congress bowed to MLB and failing to pay leaguers” – The Sporting News undermined the Senne plaintiffs’ ongoing them and all • “Here’s why the Save America’s lawsuit. To be fair, it is unclear whether the similarly-situated Pastime Act is a river of molten Senne plaintiffs would have prevailed on their FLSA claims absent the 2018 SAPA; minor leaguers sewage” – SB Nation other courts have been split on whether minimum wage and • “Evil Congressmen Want To Make minor league players are exempt, seasonal overtime. Living Wage For Minor Leaguers amusement or recreational employees. The MLB Defendants assert, Illegal” – Deadspin • “The ‘Save America’s Pastime Act’ However, by passing the 2018 SAPA, as an affirmative defense, that the FLSA Congress essentially put an end to all class- claims are barred by two exemptions in Congress will do nothing of the sort” – USA Today action lawsuits on the issue, and ensured that from the FLSA. The first exemption minor leaguers will continue to effectively be is afforded to seasonal amusement or In response to the public outcry, paid below minimum wage. recreational establishments. Id. at § Congresswoman Bustos withdrew her Ultimately, it is unlikely the 2018 213. Under this exemption, employees support of the 2016 SAPA within days SAPA will negatively impact the number of of establishments that operate for up to of introducing it. Nevertheless, MLB’s players who pursue their big league dreams. seven months per calendar year, or whose lobbying efforts persisted, and recently, A select few, like my former teammate, average receipts for any six months of these efforts paid off. will eventually reach the majors and sign the calendar year are not more than one- an MLB contract. For the 90 percent who third its average receipts for the other six Save America’s Pastime do not, however, their compensation in the months of the year, are exempt from the Act of 2018 minors will effectively continue to be below FLSA’s minimum wage and overtime minimum wage. requirements. Id. The second exemption On March 23, 2018, the U.S. Senate is for those employed in a “bona fide approved, and President Trump signed professional capacity.” Id. However, into law, a $1.3 trillion appropriations under the FLSA, such employees must be bill. Tucked away on page 1,967 of the MATTHEW DURHAM is a paid on a salary basis at not less than $455 2,232-page bill was a slightly revised partner at Payne & Fears LLP, a week. Only players at the Triple-A level version of the 2016 SAPA (the 2018 where he focuses on employment of Minor League Baseball (the highest of SAPA). Whereas the 2016 SAPA would and business litigation. He received his Juris Doctor from Duke University, and is the six levels) generally earn more than $455 have completely exempted minor-leaguers founding board chair of Sports Leadership per week, and they do so only during the from the FLSA’s minimum wage and and Management Academy of Nevada. He five-month championship season. overtime requirements, the 2018 SAPA only exempts players working under can be reached at [email protected].