MiLB Players Argue Curt Flood Act, Antitrust Laws Are Unconstitutional

A new court filing tells a federal appeals court the Curt Flood Act of 1998, as well as Sections 1 and 2 of the Sherman Act as applied to minor league baseball, violate Constitutional guarantees of equal protection.

Samuel Kornhauser and Brian David, attorneys for three former minor league players (Daniel Concepcion, Aldemar Burgos and Sidney Duprey-Conde), filed a motion with the U.S. Court of Appeals for the First Circuit in Boston last week seeking a reversal of a district court ruling.

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Earlier this summer, a federal magistrate judge in Puerto Rico recommended the dismissal of Concepcion et al. v. MLB. The recommendation was adopted by a district court judge.

The ex-players contend the MiLB uniform player contract unlawfully lets teams renew contracts on a year-to-year basis for up to six years. The players, who say they were paid less than $15,000 a season, surmise they would have earned more if teams could have competed in trying to sign them earlier in their careers. Teams instead allegedly engaged in wage fixing.

The core hurdle for the players’ lawsuit is that baseball is exempt from antitrust laws with respect to minor league baseball. The Supreme Court created a far-reaching “business of baseball” exemption in 1922 through Federal Baseball Club v. National League. The Curt Flood Act eliminated MLB’s antitrust exemption as it pertains to MLB players but affirmed it for MiLB players.

The motion contends the players’ argument is nonetheless different and unprecedented.

The “unconstitutionality (on equal protection grounds) of the Sherman and Curt Flood Acts is a case of first impression which has never previously been decided by any court,” the attorneys write.

Under the Fifth Amendment, which the motion repeatedly invokes, a federal law can’t discriminate against individuals unless the law is rationally related to a legitimate governmental purpose (the federal government must meet a higher bar when race, gender or religion are at issue).

The attorneys maintain there is “no rational basis” for the federal government to “apply antitrust protections against wage fixing to MLB players, but no antitrust wage fixing to MiLB players.” This arrangement, the attorneys argue, enables owners to “make bigger profits.”

To bolster this point, the motion cites cases standing for the proposition that providing economic protection for an industry is not a “legitimate governmental purpose.” The attorneys also draw from Justice Brett Kavanaugh’s concurring opinion in NCAA v. Alston to compare the treatment of minor league players with those of NCAA athletes. They highlight Kavanaugh criticizing the NCAA for its “decision to build a massive money raising enterprise on the backs of student athletes who are not fairly compensated” as a reason to believe that wage fixing violates equal protection.

The motion faces hurdles. The players didn’t oppose the magistrate judge’s recommendation before the district judge adopted it. By not opposing, the players arguably waived the chance to ask an appellate court to review the district court’s order. The general rule in law is if a party doesn’t make a timely objection, it waives the chance to do so thereafter.

The attorneys write that the players’ failure to object should not count as a waiver, in part because it would have been “futile and an unnecessary burden on the District Court.” They add that even if the failure technically counts as a waiver, “it should be excused in the interests of justice so that this important legal issue of first impression as to the unconstitutionality of the Sherman Act and Curt Flood Act (which adversely affects tens of thousands of Minor League players) can be decided on the merits.”

Another hurdle: The motion asks the First Circuit to endorse a novel interpretation of law. The Sherman Act, which President Benjamin Harrison signed into law in 1890, has been applied in thousands of cases brought by the government and private parties. The idea that it violates the U.S. Constitution is a bold one, especially when the applicable standard of review—a rational basis—is a low bar to meet.

MLB will have an opportunity to rebut the players’ motion.

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