There’s no bigger convergence right now in terms of labor issues for athletic workers in North America than two lawsuits in federal courts. One seeks to challenge Major League Baseball’s antitrust exemption and the other looks to force the NCAA and member institutions to fully recognize campus athletic workers as the employees of those institutions they already are and the institutions do treat them as when its convenient for them.
If the plaintiffs in both cases get their dream rulings, the two new legal standards could complement each other in the future in ways that would create moments for the college sports and professional baseball industries that would make Napoleon Bonaparte say, “I know how you feel” to the defendants.
The moment that made ABBA a global hit happened seven years before my birth. Their debut of Waterloo in 1974 at Eurovision would go on to bear the title of greatest Eurovision song ever in 2005. Four years earlier, though, Agnetha, Benny, Björn, and Anni-Frid seemed a long way from becoming Sweden’s first Eurovision winners.
One of the group’s first regular bookings was at a cabaret for United Nations soldiers on Cyprus. The group named the stage act “Festfolket” which translates to Party People. The show apparently received a reception that was lukewarm at best and I picture those cabaret audiences like the nightclub in which Elaine Dickinson and Ted Striker met in Airplane.
Previous iterations of lawsuits toward these ends have ended up like the old seadog in the above movie clip that gets the knife in the back. Despite my natural cynicism amidst a long list of court cases in which judges on federal benches have favored corporations and institutions over workers, there is reason for reserved optimism on both fronts.
Finally facing its Waterloo
Four formerly affiliated baseball clubs have Voltron’d to form one super plaintiff in the latest challenge to MLB’s broad antitrust exemption. An entire newsletter could be devoted to its nefarious origins and the obsolete logic behind it. However, that’s not the point I’m driving at here.
Of the two lawsuits in this discussion, this seems the more apt for an out-of-court settlement. MLB could write checks to make the four plaintiffs go away. It’s uncertain what each plaintiff would do with some settlement cash. The former Staten Island Yankees ceased operations after losing their MLB affiliation. The Salem-Keizer Volcanos and Tri-City Valley Cats joined independent leagues. The Norwich Sea Unicorns became part of the Futures Collegiate Baseball League.
We see a convergence between college athletics and minor-league baseball in this complaint. It cites the Supreme Court’s decision in Alston v. NCAA in which the court not only denied extending such exemption to the NCAA but also acknowledges criticisms that MLB’s antitrust exemption is an aberration, inconsistent, and unrealistic. Should MLB lose its special legal status, it could affect more than just its dealings with current and former member clubs in its talent development program.
MLB also uses its antitrust exemption to its benefit in its dealings with labor. Because it’s the lone path to making a living wage and building generational wealth in the sport in North America, it is able to dictate the terms of labor to nearly all workers for their first several years in the industry. The only choices for workers are try to endure the minors and the first few years in the majors in the hopes that they might see more of their actual value in the industry at some point, make a fraction of what their talents can actually bring in independent leagues, leave the country, or squander their talents in another industry.
With the loss of its antitrust exemption, MLB gets puts on the same level in labor negotiations as the NBA. A capable union will have a new bargaining card, as MLB would be newly vulnerable to all manner of antitrust litigation that for decades it has been immune to. It’s a book that campus athletic workers at colleges and universities in the United States might someday take a page from.
I was defeated you won the war
Before that would be possible, however, the legal status of those campus athletic workers needs to be settled. That’s exactly what Johnson v. NCAA is trying to take a step toward.
Recently, District Judge John Padova elevated one of the issues in the ongoing litigation to the 3rd Circuit Court of Appeals for interlocutory review. The 3rd will have its say on whether it agrees with Padova on whether for the purposes of the Fair Labor and Standards Act, athletes are employees of the colleges and universities they labor for.
Padova has already denied two motions to dismiss the case altogether and oral arguments are yet to occur. When those oral arguments happen, the issue of whether the court at the next appellate level considers campus athletic workers employees of the defendant institutions will already be settled. If that’s an affirmative, then all that really will remain to litigate at both the district and circuit levels will be whether then those institutions have violated the FLSA. That would seem a slam-dunk case for the plaintiffs.
If anyone thought the stakes were high in Alston, then Johnson is about to blow their minds. A total loss, which would likely come at the Supreme Court, in Johnson would not only forever settle the issue of the employment status of campus athletic workers across the country but also do two other things the NCAA and its membership dreads.
First, it would classify regulatory bodies for college sports like athletic conferences and the NCAA as parties to the employment of these workers. Johnson argues that because of their intricate and monopolistic control of college sports, they too are employers of such workers. That plays into the other consequence of such a ruling; these organizations suddenly become vulnerable to lawsuits seeking backpay and damages for injuries sustained on-the-job with long-term effects.
If the Supreme Court upholds affirmative rulings for the plaintiffs at the lower levels, then a win for the plaintiffs in the case we discussed earlier becomes of interest. If campus athletic workers find themselves in situations they find substandard, their ability to take their complaints to a court arguing the NCAA and its members are trying to wield the same kind of anti-competitive control MLB once did becomes greater.
By the same token, the ability of minor-league baseball players to challenge the federal carveout that excludes them from the FLSA becomes stronger if campus athletic workers win their FLSA fight. If collegiate baseball players deserve federal minimum-wage and overtime protections, then affiliated clubs are colluding together to artificially depress the wages of these workers. With MLB no longer enjoying the broad antitrust protection either, the court could be persuaded to strike down the “Save America’s Pasttime” Act.
Naturally, all this is what could play out if everything goes swimmingly for the plaintiffs in both cases. At this point, there is still a comic book-esque multiverse of possibilities. What’s certain is that athletic workers in both college sports and professional baseball should be paying attention to both cases as they move forward. The struggles of both groups of workers could be the history book on the shelf that’s always repeating itself. If that does happen, I will embody the spirit of Festfolket.
If you haven’t yet seen Elmo from Sesame Street lose his goddam mind over not getting an oatmeal cookie because it’s saved for a literal rock, I pity your sad existence. It’s gold. Whoever was working the puppet and voicing the character at this moment deserves whatever awards are appropriate. It was the performance of their lives.
Elmo might seem to be overreacting in a vacuum but a little bit of digging here shows that he’s completely justified. Rocco has been the bane of his existence, his nemesis, the Newman to his Jerry for quite some time. The list of Rocco’s crimes against Elmo include:
Elmo being forced to watch Rocco like it was going to get up and run into traffic otherwise
Elmo being told to address it as Mr. Rocco
Elmo losing a dance contest to a rock
Elmo having to sing Rocco’s favorite song
Elmo not getting onto the tire swing because Rocco is using it
Elmo having to not only buy a birthday present for a rock but then being told he has to wait to present it because the rock was talking to someone else
It’s a wonder Elmo hasn’t moved off Sesame Street yet.