Minor Leaguers have Ninth Inning Rally, have Chance for Minimum Wage

Philadelphia Phillies prospect Dylan Cozens belted 40 home runs in 2016 to lead all minor leaguers. At season’s end, Cozens accepted Minor League Baseball’s Joe Bauman Home Run Award, and the $8,000 check that came with it ($200 for each round-tripper) by half-joking that the prize was more than he had earned all season with the AA League’s Reading Fightin Phils.

For many minor leaguers, aspiring to get paid the federal minimum wage is no joke. While the average major leaguer made about $4.4 million last year, many players toiling in the low minor leagues earn as little as $1,100 per month, receive no overtime for the long days they put in and only get paid during the regular season months.

This year’s spring training column, the fourth consecutive report on the efforts of minor leaguers like Cozens to force baseball to comply with federal minimum wage laws and to compensate them for off-season work, including spring training, nearly wasn’t written.

After preliminarily certifying a class in October 2015 joined by about 2,000 minor league baseball players, Chief U.S. Magistrate Judge Joseph Spero of the Northern District of California decertified that class last July, finding their varying work activities and disparate standards governing off-season workouts rendered class certification unmanageable and impractical.

Without a class action, aggrieved players would have to sue individually, an impractical alternative for minor league players with little potential to meaningfully impact baseball. No class action also meant no more coverage Through Glazed Eyes.

Then, on March 7, Spero unexpectedly reconsidered much of his decertification ruling in a 69-page order after the players presented new evidence and dropped certain claims. The uphill quest for compliance with the federal minimum wage and overtime rules set forth in the Fair Labor Standards Act was back on.

It is an enduring contest. The suit, Senne v. Office of the Commissioner of Major League Baseball, 3:14-cv-00608, originally filed in February 2014 by lead plaintiff Aaron Senne, a former Florida Marlins farmhand, alleges that most minor leaguers earn less than $7,500 a year, in violation of federal and state labor laws.

Citing the 400 percent inflation rate since 1976, and the Major League salary growth of more than 2,000 percent during that time, the suit notes minor league salaries have increased only 75 percent in the last 40 years.

Unlike MLB players, minor leaguers are unrepresented by a labor union and often resort to working second and third jobs during the season to reach the minimum wage level. While the equivalent of AAA hockey players earn minimum annual salaries of $45,000 and per diems of $72 a day when playing away games, baseball players at the minors’ highest level draw only $2,150 per month during the five-month season and per diems of just $25 a day when on the road.

The minor league clubs fall under the umbrella of Major League Baseball, an industry expected to surpass $10 billion this season, where minor leaguers sign a form contract binding them to their respective teams for seven years. This kind of “reserve clause” gave way to free agency at the big league level long ago, but still prevails in the minors.

In addition to fighting class certification in the Senne case, which likens baseball to a “cartel,” MLB also sought to undermine the players’ suit and protect the unfair status quo by supporting in Congress the Save America’s Pastime Act. A frontal effort to exempt minor leaguers from the Fair Labor Standards Act’s protections, the bill proved so wanting that one of its two sponsors, Illinois Rep. Cheri Bustos, withdrew her support the day after introducing it.

Bustos reversed course completely, saying “I believe that Major League Baseball can and should pay young, passionate minor league players a fair wage for the work they do.” Last September, the bill was referred to a House subcommittee, where it died.

MLB Commissioner Rob Manfred does not dispute that minor leaguers earn less than minimum wage, but argues they are salaried employees in apprenticeship programs akin to the labor standards act-exempt artists and musicians. MLB will also contend players fit within the act’s carve-out for employees of “an amusement or recreational establishment if it does not operate for more than seven months in any calendar year.”

The ballplayers maintain that the work they put in during spring training, the five-month regular season, any post-season games and offseason training and conditioning fits well within the act’s scheme. As a substantive matter, the players must show they are full-time employees rather than apprentices or seasonal workers to fall within the ambit of the act’s wage and overtime protections.

First, however, is the tricky matter of class certification.

After getting certified and decertified as a class by the San Francisco federal court, the players managed to get recertified just weeks ago. Spero’s decertification last July was based on the absence of uniform standards applicable to off-season workouts.

He found that a class action was inappropriate where teams could not monitor or regulate such activity through the FLSA or state wage laws.

In response, the players narrowed their proposed class and dropped claims relating to unpaid off-season work. They also introduced an updated survey of some 720 players estimating hours put in during spring training and relied on an expert witness to cross-check those estimates against team schedules.

The expert concluded that the players’ estimates were likely conservative and did not include time spent on extra training or changing into or out of their uniforms.

This led to Spero finding that individualized issues in the litigation “will not predominate over common issues” and enabling all minor league players who opted into the lawsuit to participate. MLB’s motions to strike the survey and exclude the expert were denied.

Barring a further change of heart by the judge, the class action finally offers real potential for minor leaguers to receive federal and state wage and overtime protection. While posing no real threat to MLB, the suit could, at long last, enable low-level professional ballplayers to earn as much as fast-food workers or hardware store clerks.

It is only fitting that these spring training columns end with the grand slam fairness of just such a result, and not on the weak groundout of decertification.