Baseball and the FLSA: We Need a "Save America From Special Business Interests Act"

“Democracy is a theory that the common people know what they want, and deserve to get it, good and hard.” -- H.L. Mencken.

When it comes to wage and hour legislation, Congress seems hopeless deadlocked and ineffectual. Reform of the Service Contract Act or the Davis-Bacon Act is not being discussed. Raising the Fair Labor Standards Act (‘FLSA”) minimum wage is not even on the table. And the changes in the salary basis test threshold for the white-collar exemptions is now being studied interminably, because one court incredulously suggested that the Department of Labor lacks the power to raise the dollar threshold. This is the current state of affairs of our democracy.

Meanwhile, this is one special interest that seems to have no problem getting its way in Congress and enacting laws to protect its own business interests.  That one special interest is Major League Baseball (“MLB”). The statute in question is humorously named the “Save America’s Pastime Act.” The law ignores the fact that baseball, at least judged by the millennial generation’s indifference, is no longer our national pastime. Allegedly, some 20 MLB clubs spent some $2.6 million over the last two years lobbying Congress to preserve some special privileges for baseball.  For their money, they get an exemption from certain wage requirements. The statute which took effect on March 23, 2018, was a small piece of the Federal spending bill, but one that showed the clout of MLB. Of course, this isn't the first time MLB has carved out wage and hour privileges for itself, such as legislation for batboys and girls overriding the child labor laws. 

Now a group of minor league players suing in a collective and class action in a series of cases consolidated on appeal as Aaron Senne et al. v. Kansas City Royals Baseball Co. et al., case numbers 17-16245, 17-16267 and 17-16276, in the U.S. Court of Appeals for the Ninth Circuit. In written pleadings filed in April, the plaintiff minor league players argued that the statutory exemption of baseball was not meant to be retroactive and should not impact an already-granted collective certification in a wage suit. Oral argument in the consolidated 9th Circuit appeal is set for June 13, 2018. That will determine whether the FLSA collective action and state class claims can carry on. Apparently, some other unions, including the Professional Hockey Players’ Association -- which represents minor league hockey players -- are also interested in the case and have filed amicus briefs. 

This most decidely isn't about millionaire baseball players. It is about young men who work long hours for very little compensation, with only a sliver of them ever making it to the big show. 

Whatever the result, I despair at the power of special business interests to carve out special treatment of their business activities by federal enactment. Of course, there is a long history of this stuff, including the original FLSA enactment which went into effect in 1938 that carved out perhaps 40 or so different exemptions to the law, including special deals for auto dealers, movie theaters, taxi cab drivers, the maple sap syrup industry, and others, who were powerful local lobbyists for their own interest. Why in the modern age MLB billionaire owners need special treatment for their minor league affiliates can never be justified on policy grounds, at least in my opinion, although the lobbyists for MLB, of course, say otherwise. In the modern age, the swamp simply doesn’t ever get drained, notwithstanding promises to the contrary.

Perhaps eventually the gridlock will be broken, and this kind of special interest legislation will lead to a turn of the wheel. Then MLB will learn that democratic government can run in the other direction too. If baseball is our national pastime, then it should have a national responsibility to observe labor standards.