Alex and Bobby discuss the latest CBA proposals, and how difficult it is to grade the relative success of the union when so much of the picture is still incomplete. Then, they’re joined by Jim Quinn, lead counsel in a court case intended to challenge MLB’s anti-trust exemption at the Supreme Court level. Jim shares the history of the exemption, the myriad attempts to repeal it (and why they failed), and what is different about this case.
Links:
Maury Brown on the anti-trust exemption and baseball owners’ economic standing
Songs featured in this episode:
Robert Palmer — “(Love Is) The Tender Trap” • Taylor Swift — “the last great american dynasty” • Booker T & the M.G.’s — “Green Onions”
Episode Transcript
[INTRO MUSIC]
Tell us a little bit about what you saw and and and being able to relay that message to Cora when you watch Kimbrel pitching and kind of help out so he wasn’t Tipping his Pitches. So Tipping Pitches, we hear about it all the time. People are home on the stand, what Tipping Pitches it’s all about. It’s amazing. That’s remarkable.
BOBBY: Alex, before we started recording, this your podcast that the listener is so graciously listening to right now, on a Thursday, a day that we don’t typically put out episodes of Tipping Pitches, at least not anymore. In our early days, we used to just kind of release whenever it was ready. You know, it’s just like, no, no, no publish date. No regularity, no schedule, just vibes. If you’ve been around since then, congratulations to you for making it this far. I don’t know how you did. But before we started recording, you mentioned that instead of talking about labor negotiations, collective bargaining, the owners versus the players. All the stuff that we usually do here, playing the hits. You wanted to do a 30-minute monopod about Curt Schilling. So I’m actually going to get out of here. And I’ll leave the Zoom up and running. I’m going to go finish packing some boxes that I need to–
ALEX: Uh-hmm.
BOBBY: –pack. And I’m just going to let you kind of descend into deliriousness while talking about the Hall of Fame candidacy of Curt Schilling here. Does that sound good with you?
ALEX: Yeah, that’s great. Actually, I can, if, if you listen closely, you can hear all of the listeners getting out of here as well. I can hear them closing their podcast apps one by one. This is great. It’s just me, I can say whatever I want.
BOBBY: I’d like to hear it, to be honest. You you know, like a Patreon kind of vibe, like you have to perform it. Maybe that’s a good idea for our Patreon. You know, not like doing an extra episode of like real Tipping Pitches core, but doing an extra episode, where you have to like pretend to be a sports radio host every week. I feel like people would pay for that.
ALEX: I’m just leaving silence there, because that’s what you would have to deal with as a radio host. Just doing it yourself. You just–
BOBBY: The FCC is like finding you for dead air.
ALEX: It’s just you and your thoughts bouncing around. There’s nothing you can do.
BOBBY: I alluded to the fact that I had to go pack some boxes. That is actually true. As you are listening to this podcast, I am driving across the country, moving from Los Angeles to Brooklyn. So that is why we’re releasing this episode on Thursday. We had to record it ahead of time. And because of the nature of some of this news about the collective bargaining we didn’t want to wait a full week to release this episode. Later in the episode, we have a conversation with Jim Quinn, who was one of the lead lawyers putting together the suit to try and rollback MLB’s antitrust exemption. Which is really cool conversation about stuff that we talk about every week, that colors this podcast every week. So I’m excited [3:03]–
ALEX: [3:03] someone who can talk about it with a little bit of expertise, and not us just yelling back and forth and saying they should just get rid of the damn thing. He’s the guy who’s [3:11]–
BOBBY: Wouldn’t be nice? He’s not just saying wouldn’t it be nice? He’s actually–
ALEX: Yeah.
BOBBY: –acting upon whether it be nice.
ALEX: Firing of tweet threads.
BOBBY: Yes, exactly. So that’s later in this episode, but I I wanted to get into some of the news that we got as we sit here and record this on January 25th, on Tuesday. About how collective bargaining is going and a couple other small news items maybe. Be a couple Stu Sternberg quotes just for the deep cuts. But before we do all of that, I am Bobby Wagner.
ALEX: I am Alex Bazeley.
BOBBY: And you are listening to Tipping Pitches.
[3:41]
[Music Theme]
ALEX: Bobby our split city plan is dead.
BOBBY: No.
ALEX: We’ve been, we’ve been doing the, doing the by coastal thing, you know?
BOBBY: Yeah.
ALEX: Half of us out here on the East Coast, half of half of us out there on the West Coast. And you know what, I I don’t know, I’m I’m getting a little it’s a little bittersweet for me that this era is ending, you know. I think that it’s been very good for us, for our podcast. It’s made it way easier. Certainly doing everything through a screen technology famously never fails.
BOBBY: Uh-hmm.
ALEX: Famously also one always remember to hit the record button when there’s–
BOBBY: That’s right.
ALEX: –and you’re doing–
BOBBY: Yes.
ALEX: –through a computer. So–
BOBBY: Uh-hmm. See, much like the Rays, neither of these are home games for us.
ALEX: Right.
BOBBY: The Rays don’t play many home games in Tampa, because their, their park is like all the way across the freeway. That’s very hard to get to for most people who were actually Rays fans. And then their their games in Montreal wouldn’t be home games either. Because the actual Montreal fans would be like, why aren’t you the Expos? How did you steal our team and then stick us with the team that won’t spend more than $70 million on payroll? And I’m not from the West Coast and you’re not from the East Coast and yet I’m on the West Coast. and you’re on the East Coast. So we’ve actually really modeled our podcast. No, we did this first actually.
ALEX: Yeah.
BOBBY: The Rays model, they’re playing off us.
ALEX: Yeah. Still waiting for those consulting checks to hit. They have, they have bounced thus far. Probably because of Stu, Stuart Sternberg’s small pockets at the moment. Yeah, it’s dead, Bobby, the split-city plan. Are you, are you bummed? Do do you think that this was in the words of Stu Sternberg that the wave of the future in professional sports?
BOBBY: The wave of the future is having to travel very far to play your own home games, that’s the wave of the future. Nevermind all this discussion about limiting air travel to try to combat climate change, nevermind any of that. More on that on the Tipping Pitches feed to come in the future. Stu Sternberg was going the other way, bro. Who’s going the other way. We don’t have a ton of time to talk about Sternberg and his quotes around the two-city plan. I’m personally I’m I’m just hoping that it has long as, it has as long of a shelf life as the 100 million dollar lawsuit about moving the All-Star game out of Atlanta. Like we can keep getting quotes out of this. And we can keep getting people mad every three weeks just like press the reset button zero days since person got mad about X. I want to talk about Stu Sternberg being like, No one comes to my games. And me being like, I wonder if anyone who’s giving this quote here might share some responsibility and the reason for that? Do you think anybody does? Do you think anybody should maybe take a long look in the mirror about why people don’t come to your park? Which is very far away from where two people could easily access that park. To see a team that trades away all of those fans favorite players every three years and refuses to ever actually pay them long term, term contracts to retain their services.
ALEX: That was a that was kind of a long way of saying reaping, I I believe is is what’s going on here. You look around and you say, hmm, who who made this bed in which I hear sleep.
BOBBY: The the dirty truth of it, Alex, is that he’s fine with the bed. Because the bed is is actually $85 million per year worth of local TV revenue, that he gets rain or shine. So he actually is just sleeping on the money. So he doesn’t really care about anything it’s [7:39]
ALEX: This is just such a bizarre situation at the Rays end and I really feel for their fans speaking as a speaking as a as a fan of a team that actually rhymes with Rays. Who has been, yes, if you can figure that one out.
BOBBY: I know you’re Canadian.
ALEX: Oh, hey, there we go. I thought maybe there was one team that rhymed with that. And–
BOBBY: No.
ALEX: –that’s I’m just I’m really just–
BOBBY: Blue Jays.
ALEX: –my myself center Padres.
BOBBY: Padres. Should we keep going mysteries as [8:15]–
ALEX: Oh, I’m trying to say sympathize, man, this sucks to get jerked around by ownership like this, right? That the team is saying that they don’t have plans right now to look into other markets. Stu Sternberg has said that he is not really interested in selling the team either. And so now things kind of come to this weird limbo standstill.
BOBBY: Yeah.
ALEX: Where he very clearly does not want the team to exist in the form that it exists in, but he doesn’t really have a choice.
BOBBY: This is like when when you’re doing a group project. And there’s like five different tasks and there are five different members of the group. And Stu Sternberg is like, I’m not interested in doing any of these tasks. So somebody–
ALEX: Right.
BOBBY: –else has to do all of them and I’ll just–
ALEX: Uh-hmm.
BOBBY: –take credit for it at the end. It’s kind of–
ALEX: Right.
BOBBY: –Baseball ownership is operating right now. I just think it’s hypocritical of you, to have this take while also wearing a Billy Beane A’s jersey. A custom made Billy Beane A’s jersey as we sit here and record this pod.
ALEX: You’re going to tell me he doesn’t work just as hard as Matt Chapman?
BOBBY: More hours probably.
ALEX: He hits intellectual homeruns.
BOBBY: He’s doing lat pull downs while Matt Chapman is striking out. Oh, Matt Chapman’s hitting 205. There’s Billy Beane, doing more lat pull downs.
ALEX: Yep, that’s right. He gets, he gets those gold gloves on the spreadsheet.
BOBBY: Okay, we should probably talk about collective bargaining. Do you wanna talk about collective bargaining?
ALEX: I guess, man.
BOBBY: it’s ostensibly the reason that we’re releasing this podcast when we’re releasing this podcast instead of waiting a full week. MLB and the MLB Players Association had two separate days of meetings this week, on Monday and Tuesday. Once again, it’s it’s infuriating the way that this news trickles out. The way that everybody reacts to it immediately. And then more news trickles out and then everybody reacts the exact opposite way. It’s just, it’s whiplash. It’s very exhausting. But I wanted to talk about the most recent set of proposals. Like I said, we’re recording this on January 25th. I’m going to read you a tweet from Jeff Passan, which is a favorite pastime of Tipping Pitches. “Labor talks are over. Here’s what happened.” Can you imagine it was just labor talks are over.
ALEX: That’s it.
BOBBY: Period.
ALEX: That’s the game folks.
BOBBY: “MLB agreed to accept parameters of a pre-arbitration bonus pool for top 30 WAR. MLBPA seeking $105M”, for the size of that bonus pool. “League offered $10M. MLB offered minimum raise to $615K. MLBPA wants $775K. MLB withdrew offer to change arbitration structure.” That’s everything that happened today, Alex. Yesterday, we got news that the MLB Players Association withdrew their proposal of reaching free agency after five years of service time, instead of six years of service time. We also found out that that withdrawal came alongside MLB, the MLBPA, asking for a higher luxury tax threshold as they have in this whole time. As well as fundamental changes to the structure of the revenue sharing plan. Which would limit the amount of money that would be sent to smaller market teams. Because they’re not actually spending it and it’s hurting competitiveness that they get these checks. That is the MLBPA official stance. So that’s a lot of details for you, about what has gone on in the last two days. How do you, Alex Bazeley, synthesize those details about what is going on? Take it in any direction you want, people’s reaction to it. Chess moves that are happening at the table, future of the sport, whatever you really want to talk about you can.
ALEX: I guess the thing that was kind of left out of that reading of the details was that we need to be thinking about the owners in this situation, as well [11:52]–
BOBBY: Right, [11:52] obviously T’s and P’s the owner.
ALEX: Well, I will, I will I will go I will refer you to one Dick Monfort. He owns the Colorado Rockies, you may know.
BOBBY: This is so true. And honestly–
ALEX: Make money and cattle buying as we now famously know.
BOBBY: I can’t believe I forgot to mention this, I’m so sorry. To Dick Monfort and the entire Montfort family to be honest.
ALEX: Yeah, well, so you know, he pointed out he made the good point that some owners don’t make much money.
BOBBY: True.
ALEX: And that and that COVID measures and security needs are also costing money. You know, the basically the things that you need to run your business–
BOBBY: Uh-hmm.
ALEX: –are not free. Hmm.
BOBBY: This again, this goes back to my, my question to you last week. What, what are the owners offering? You know, like if they basically just buy these teams and let them sit. Like they’re not really trying to win World Series. They’re not injecting new capital into these teams with the exception of Steve Cohen apparently. Uhm, so what are they actually offering and Dick Monfort was like, thank you for asking that question on your podcast, Tipping Pitches. I love it. I’m offering nothing. And I would like to offer even less.
ALEX: Yes.
BOBBY: Like, well, what?
ALEX: And like, part of the way I interpret this is like, I don’t know, it strikes me as a very unserious act, right? If they are still kind of doing this song and dance of crying poor. It indicates to me that they maybe are not actually ready to discuss the things that need to be discussed, right? If they’re still kind of doing this posturing to try and sway favor towards the owners. Whether it’s from the players, whether it’s from the media, whether it’s from the fans. And we have gotten some movement in the last day or two, as you laid out. Its some proposals were, were adjusted, and some were withdrawn. And they were some places where the two sides agreed that there was a solution that needed to be found, right? In a place like, like arbitration.
BOBBY: Yeah, that the one side being MLB who said that they actually wanted to get rid of arbitration 48 hours ago. And now they’re actually like, wait, no, we can keep arbitration. The thing that one of the founding principles of the Major League Baseball players union, yeah, we–
ALEX: Yeah.
BOBBY: –keep that.
ALEX: But like the, quotes that trickle out like these from owners are so farcical. That it’s like hard for me to take the negotiations even seriously. Which is a weird position to be in because I also feel like the owners really do not want to lose games. As much as, the league actually came out the other day and said we’re willing to lose games.
BOBBY: My we’re willing to lose game shirt has a lot of people asking questions already answered by my shirt.
ALEX: You know what I mean, like there’s there is so much money at stake there. That it kind of runs counter to this idea of like, we’re not making much money, therefore we’re willing to hold hostage, the thing that makes us our money.
BOBBY: Yeah, I mean, I think you point out something really important here. Which is that, it actually does seem like MLB does not want to escape. I mean, despite what they say, in the press, recent guests of the pod Maury Brown had a really informative I thought thread about this. Which is not sourced or anything like that, or is just kind of like reading the tea leaves. He he talked about this quote from Dan Halem, who is handling the negotiations on the, on the league side, along with Rob Manfred. Saying that they they’d be willing to lose games. And more he had a, as he always does, and informed business, I’d take about this in that, in 2020, when they shorten the amount of games to 60, instead of the full 162, it was just much discussed how that was the number of games that MLB could play, and still get paid their full regional sports network deal from whatever the original RSN was for each team. So they only played 60 games, but they got paid as if they played 162. That’s not forever. According to Maury from his thread, he lays out how they got paid that because the deal says, hey, you get paid that but if for whatever reason, you don’t play that many games. You have to pay that back to us in future years, in the form of rebates. So they will not be making the full amount from their RSN they’re accustomed to, for the next five years. It’ll be spread out or whatever, I don’t know if it’s actually five years. But they will spread these rebates out for the, for the foreseeable future until these rebates are made good. So the financial situation for the owners, that financial picture is being informed by the fact that yeah, that the the pandemic actually did hurt their bottom line. It’s like one of the first things to come along and hurt their bottom line in a long time. I think that’s an interesting, I think we should bring it all the way back to Dick Monfort. And talk about how, what he’s complaining about is perfect fodder for what the MLB Players Association was trying to say all along, during the return to play negotiations. Which is we don’t get to share when Baseball has a killer year. We get paid the same amount no matter what. So why are you trying to give us a haircut when Baseball is having a down here? And that’s exactly what Dick Monfort is still whining about any chance that he gets. He’s still, him and all of the rest of the owners are still talking about, oh, all of these things that we had to do to ensure that our business was allowed to go on without literal human beings literally dying during a pandemic. Oh, no, it was so expensive to do all of that stuff. And I’m like, isn’t that just what being a business owner is? But didn’t every single business owner have to do all of that? And it’s so tone deaf for you to complain about having to do all that stuff. Still 20 months later, when you’re back to the same business model that you’ve always been accustomed to. Raking in gate receipts, and RSNs at the same time.
ALEX: Yeah. And it’s, and it’s why with all of these kind of new proposals that roll out that have rolled out over the ver–the past few weeks and months, and over the last year, really. It’s hard to even comment on them, because some of them are so far out there, that it doesn’t even really make sense why it’s on the table or why the players would be considerate. Take, take the the minimum salary kind of discussion, for example.
BOBBY: Yeah. Which time to get into policy wonk territory.
ALEX: Yeah, exactly.
BOBBY: Talking about numbers. Big Paul Ryan energy. Let’s do it.
ALEX: I’m not even, I don’t even have the numbers up here in front of me. Like, I’m just, you know–
BOBBY: Technocrat Alex.
ALEX: Right, exactly. The, the, you know, the players proposed what amounted to probably like a 30-ish percent increase that would bump the, the minimum salary up from the, you know, the, like, 560K range that it’s in right now to somewhere–
BOBBY: Somewhere like 755, yeah.
ALEX: Right. Yeah, exactly. The the league obviously offered something much, much smaller than that, right? It was like 550, up to like, 590, or something, you know, like something like, absolutely meaningless.
BOBBY: Most recently, they’ve offered 615. Which is–
ALEX: Okay, there we go.
BOBBY: –closer, but not that close.
ALEX: Yeah. Did you know that that’s a salary cap, too, for those players? Did you know that teams under this current proposal would not be allowed to pay these players more? It likes, let’s say for example, you think, well, I want to build a little goodwill with my young star here and pay him slightly more–
BOBBY: Yeah.
ALEX: –than this salary. You know, you can’t do?
BOBBY: That.
ALEX: That. Why. like the league is so clearly trying to lowball the players in these certain corners.
BOBBY: They’re building collusion into the CBA, bro.
ALEX: Yeah, yeah.
BOBBY: I mean, throw throw aside your politics for a while, [20:04].
ALEX: You got [20:08]
BOBBY: [20:08] and hand it to MLB rescinding my previous statement, kind of clever. No, I, I agree, it’s it’s very hard to react to these proposals. Unless we were doing like, the drivetime radio show that day. Or we were doing like breaking news reactions on ESPN or something like that. Not that they would ever let us to break these reactions about labor things on ESPN. It’s it’s hard to talk about it, because it’s going to change so soon. And how do you grade something that is incomplete with a grade anything other than incomplete? Because I saw a lot of people being like, okay, MLB withdrew their proposal to lower the service time years that you have to have to reach free agency. So they had a proposal on the table that was like, you only have to play five years to hit trueblue free agency, like you can go sign with any team that you want to. And they read through that proposal. And they are accepting that you still have to serve six years in MLB, to get to free agency. Now they made the calculation clearly that it was better to fight over the arbitration system and structure and the minimum raise for zero through three players. Then it was to put all of their union political capital into fighting over getting that one year back of service time before you hit your honest, free agency. And if that’s what they did, and they pulled their members or they, they took the statistics of what their members are making. And they said, if we get X change to pre-arb players or our players, will it be worth more than the players who actually make it five years into the league and get a free agency deal? If they did all that work? Which, look, they’re professional union. They definitely did all that work, then you you can’t grade that yet. Because we don’t have a Collective Bargaining Agreement yet. And there’s a lot of people who are like, why are they giving up all of this stuff? Or why is MLB negotiating in bad faith? And why is the Players Association responded to them if they’re negotiating in bad faith? Which is also by the way, a legal term, and MLB is not negotiating in bad faith, unfortunately. In layman’s terms, they are but not in the actual legal terms. It’s just very hard because you don’t know which things at the bargaining table are linked. If I had to guess MLB said, we will withdraw our proposal to get rid of arbitration if you withdraw your proposal to reach free agency after five years of service time. That’s what I felt like when I saw that news trickle out. So unless you’re at the table, and you saw that, and you talked to the members after that, or you’re on the Executive Subcommittee, how can you say that was the wrong decision? It’s very hard. And I come back to what you said last week, Alex, which is MLBPA is acutely aware of what it will feel like, what it will look like the heat with which they will face if they lose a bunch of games. Even if it’s not their fault at all, which you know, we agree that it’s not their fault. But they’re acutely aware of that. And if you’re someone who’s like, the player should get everything they want to, you also have to be someone who’s like, hell, yeah, let’s let’s lose the season. Like those two things are not mutually exclusive. It’s what it’s what you’ve very perfectly distilled last week, when we were discussing the way that different media talk about this. Those two things are hand in hand, period. No ownership group, in any sector, anywhere in the world, is going to just give you these things before it actually starts to hurt them. It’s just not the way that it works under capitalism.
ALEX: Yeah, well said. I don’t think I have anything to add to that. Obviously, it kind of remains to be seen what, what comes out of the next few sessions. I don’t even know that we know if they’re any on the books at the moment. You know, I you know, at the end of the day, I’m going to, I’m going to go back to our friend John Heyman, who just who distilled it, who distilled it quite nicely. In a tweet today. At least they’re talking, at least they’re talking, Bobby. At least they are, they’re getting down and dirty. They’re in a room together. They’re–
BOBBY: Oh, yeah.
ALEX: –rolling up their sleeves.
BOBBY: Oh, yeah.
ALEX: And they’re and they’re doing the damn thing you know, and can you really fault them for that? No matter what the outcome is, they’re, they’re doing their darndest.
BOBBY: This is how the sausage gets made. If you want to eat the sausage, this is how it gets made.
ALEX: Yep, a sure got off the pot.
BOBBY: You’re up shit creek without a paddle. How many can we say that? Maybe it has nothing to do with this. Can I really quickly talk about the, because this is actually interesting. This is, this is news to us about the negotiations. The pre-arbitration bonus pool for players who finished in the top 30 wins above replacement. Number one, no idea who’s wins above replacement we’re talking about here. It probably has to be a proprietary formula that both sides agree on. That’s based on something approaching, the difference stats sites, GanGraphs, baseball prospectus, baseball reference, etc.
ALEX: Famously, WAR is perfect.
BOBBY: This is going to invite somebody WAR what is it good for jokes. I can’t even, it’s very upsetting. The MLBPA would like that pool to be $105 million, which gets distributed. The league would like that pool to be $10 million. And I saw a lot of people being like, what the fuck we’ve been doing this for? Like $10 million dollars, that’s such an insult. And I’m like, this is how these things work, when it’s, when it’s just numbers that we’re talking about, you start and you’re like, yes, I’d like $1 billion in cash right now. Like that’s how the negotiations–
ALEX: Uh-hmm.
BOBBY: –start. And that’s actually a good sign that they’re agreeing on the parameters as passed and laid out. MLB agreed to accept the parameters of a pre-arb bonus pool. That’s more money that is going to pre-arb players that was not entitled to them before.
ALEX: Yeah.
BOBBY: That’s a legitimate concession from the owners, hate to say it, hate to say it, but I’m a truth teller, I call it like I see it, Alex. And it’s not the right amount. Like, if it were up to me, they would get all of the money, there would be no owners. But that’s a legitimate concession. And the amount of it, they’ll just have to go in and in and in. But what you can’t do is you can’t send back a proposal that is exactly the same as you’ve sent prior. And you can’t send back a proposal that is actually better for your players than prior. Because that’s what’s called regressive bargaining, which is illegal. So yeah, you have to start at 105 million, which is you can never go above that. Unless you change something else about the total economic package that you’re delivering back to them. There are laws here, you know what I mean? And it’s like, it’s very hard to tell from the outside. What was done to follow the laws versus what was done is like a blackjack strategy. I think people think that this is all like, you sit down at the table, and you’re like, one man trying to best another man in a business negotiation Logan Roy style, and it’s just not how this works at all.
ALEX: No, because then the players would would win. Are you kidding me? Standing face to face with Max Scherzer, you’re gonna tell me you wouldn’t give him anything he asked for?
BOBBY: [27:11]
ALEX: My God, exactly.
BOBBY: I already gave him exactly what he asked for and potentially, potentially even more. Okay, let’s bring in Jim Quinn. Like I said he is the one of the two names lawyers leading the lawsuit to try to repeal MLB’s antitrust exemption handed up by the Supreme Court in 1922. We’ve talked about this a little bit on the show. Obviously, this would have wide ranging implications for MLB’s entire business model. Which is why they’re gonna throw themselves in front of this in any way they can. This comes, this news comes, it it came out a couple of weeks ago, and we talked about it when it did. On the heels of MLB, kind of taking control of Minor League Baseball, under this vision of Rob Manfred, since he’s been the Commissioner of One Baseball. Kind of pulling everything collectively, under Major League Baseball’s wing, and making decisions that will benefit those 30 clubs at the top. And, you know, as we discussed when they contract to these 42 Minor League teams screwing over a lot of people in the process. And some of those people who are screwed over are the plaintiffs in this lawsuit. That the lawsuit alleges that MLB essentially colluded together in an anti competitive way. Where they chose which 42 teams would be eliminated, the teams had nothing to say about it, they didn’t have a chance to bid to be one of the teams that stays they didn’t have a chance to make a case for themselves. They didn’t have a chance to succeed on their own. They were just kind of eliminated by these 30 owners, who are essentially also supposed to be competing businesses with each other. And they were just like, No, we’re we’re knocking these companies off the face of the earth. Which is what happened, which is illegal in every other industry. Now, you might say happens de facto in other industries. But it’s technically illegal in other industries to collude with your competitors across company lines, to eliminate other companies. And this lawsuit will challenge that action, under the grounds that this antitrust exemption should no longer exist.
ALEX: They’re only representing four of the 40 Minor League teams that were eliminated Staten Island Yankees being one of them. But they’re basically saying this was a, this was an illegal restraint of trade. This–
BOBBY: Oh, yeah.
ALEX: –this is a market that exists.
BOBBY: Teddy Roosevelt is fist pumping in his grave, bro. Majorly League Baseball is is the only defendant named by the way. And all 30 individual teams are named as co-conspirators, which I absolutely just love. I love it.
ALEX: Yes. It’s It’s true. It’s how, that works.
BOBBY: It’s basically like listening to this pod.
ALEX: Jim Quinn is the guy to talk to you about this and he probably would be the guy to talk to about this. Even if he wasn’t the, even if he was wasn’t one of the lead attorneys on this case. You know, his he has a decades of experience in litigation law and arbitration law and sports law. Specifically, he has represented all four of the major professional sports unions here in the United States. He currently has a, has a lawsuit right now in which he’s representing the City of Oakland against the NFL. This is, this is not his first time around the block, you could say when it comes to sports law, and–
BOBBY: Taking on the league.
ALEX: –litigation.
BOBBY: Yeah.
ALEX: Yes. Yeah, literally.
BOBBY: All right, so let’s go talk to Jim Quinn, about getting rid of baseball’s antitrust exemption.
[30:43]
[Transition Music]
ALEX: Okay, Bobby, we are joined now by a very special guest. We are in our law bag this week. We’re joined by Jim Quinn of Berg & Androphy. He is a, one of the more important lawyers in probably sports law history I’d say. He has, he has represented all the the Players Associations of the four major US professional sports. And and he has a very interesting case right now going up against Major League Baseball. Jim, welcome to the podcast.
JIM: I’m glad to be here.
ALEX: So we have we’ve talked long and hard about Major League Baseball’s antitrust exemption. And the the kind of bizarre state that it finds itself in and 2022 as the the only the only professional sport with this sort of exemption. And Jim, you have a a case right now representing four of the contracted former Minor League Baseball teams, that that kind of rose after Major League Baseball eliminated the the 40 teams a couple years ago. Can you talk us through this case, kind of kind of how it came together? And what it is that you guys are arguing?
JIM: Yeah, sure. I mean, we we actually were originally filed a series of lawsuits on behalf of several of the teams in state actions that are still pending. But essentially, those cases are tort and breach of contract cases that arose out of the fact that these four teams were eliminated in the takeover by Major League Baseball of Minor League Baseball. And we kind of played it, whether or not we could bring an antitrust claim, in the first instance, and decided that given the current state of law, that we would, we would differ on that. And then as I’m sure you’re aware, last last summer, I guess, or spring, the Supreme Court came down with its ruling in the NCAA case. And, and the in the majority opinion, or also in the concurring opinion, they went out of their way to take a shot at the Baseball exemption. Which we could talk about the the the background of but essentially saying that it was an anomaly anomaly, it was anachronistic. And was probably something that was doomed to go into the trash barrel of history. And once we focused on that, we decided this was the time to take a shot at seeing whether or not we could get the Supreme Court to overrule its prior rulings that related to the Baseball exemption. So that’s what really got us motivated to file a separate anti trust losses on behalf of these four teams. Basically saying that the the team, the Major League Baseball teams, which are competitors. These are the Minor League teams have got together and clu–clusively and illegally eliminated 42 teams when they took over Minor League Baseball.
BOBBY: Before I want to talk about Austin. But before we do, I wanted to kind of go even further into the trash bin of history if we can. And talk about–
JIM: [34:30]
BOBBY: –the original formation of the exemption and and why in your estimation. It came about then and then how if you could lay out for our listeners who don’t know the the sort of history of it and where it stands today and what you’re actually challenging. What has been rolled back about it so far? So what it was originally given, it was kind of given to all of MLB’s business. But the business looked very different back then than it does now of course. And now there have been successive legal actions that have rolled back. Some of those abilities of MLB to claim antitrust exemption against some kinds of suits and cases. Can you talk about what is left of that original exemption?
JIM: Well–
BOBBY: What–
JIM: –actually the the major, the major carve out from the exemption occurred in 1998, with the Curt Flood Act. Which was consensual in the sense that it was part of the the settlement of the, of the strike slash lockout in 1995. Where the union and the owners, the union insisted that the owners agree to go to Congress and get a exemption from the exemption. And so the players, the major league players, that is, are no longer subject to the NHS exemption and, and subject to other issues that we we could belabor, but I won’t get into unless you want to. They they now have any trust rights. But beyond that, in a number of other areas, the Baseball exemption, including relating to Minor League Baseball and minor league players continues to continues to exist. And there have been challenges, a number of challenges over the years to the exemption. And the lower courts have all as they have to have a followed the Supreme Court prior rulings in this area. And so far, the Supreme Court free Austin has not deign to take, take up one of the cases. We think that this case is given what happened in Austin, we think that this is a this is a time to, to challenge it.
BOBBY: I wanted to ask you about one of those cases that they actually did take though, which is Flood V. Kuhn, which listeners of this show are most familiar with. Because we’ve talked a lot about Curt Flood and what he’s done for MLB players labor rights. The Supreme Court siding with MLB, in that case is kind of fascinating to me. And I was wondering if before we talk about this present, when you could maybe give a little bit of that brief history of that one and why?
JIM: Oh, sure. I look, the the exemption arose out of a case back in the early 1920s, called Federal Baseball, which was challenged by a team. Actually, it was it was the team was, was a forerunner of the Baltimore Orioles. But it was in a different league, the Federal League. And for a variety of reasons the Federal League went bust. And the this team the or the Orioles, the Baltimore team brought a lawsuit. Challenging the manner in which then existing Major League Baseball had run Federal, the Federal League out of business, and they brought it under the antitrust laws. And in a bizarre ruling, but even it was bizarre even back then, the court ruled that they didn’t believe that Major League Baseball was in interstate commerce, and that, therefore the antitrust laws didn’t apply. There was a second case in the late 1940s, called Toolson. That involved a baseball player who gone to play in the Mexican League. And when he tried to come back, he was barred. He brought a lawsuit. And the Supreme Court again, pointing back to the Federal Baseball, found that the the exemption continued in that context as well. The third time it came up is the one you’re referring to, Bobby, which is in the Curt Flood case in 1972. And essentially, the court there said, well, this may be somewhat bizarre, because we have previously found that other sports including Football, were subject to the anti trust laws. That was the case that came up in the 1950s.
BOBBY: Right.
JIM: And, but yet, we’re going to, with regard to Baseball, we are going to hold on to our our ruling of stare decisis. And if, if this ruling is to be changed, the court said you’ll have to go to Congress. Why they they took up the the Curt Flood case and then ruled in the manner in which they did is still a mystery to me.
BOBBY: Yes, to me as well. It’s one of the more confounding–
JIM: It is.
BOBBY: –in off field things throughout all of Baseball history, to be honest. Because they took the case, they heard the case, it would seem that that was the perfect opportunity for them to sort of go back on a weird exemption–
JIM: Exactly.
BOBBY: –that they gave in 1922 and they did not.
JIM: And they punted. And you know I mean I I have said that the the the the Baseball exemption case, the flood case and its progeny years prior is is somewhere along the lines of the Dred Scott case in terms of Supreme Court jurisprudence. And the Supreme Court knows there’s–
ALEX: Yeah.
JIM: –five.
ALEX: Right.
JIM: And we now have a different make up of the Supreme Court on a variety of different issues. And if–if they’re seriously thinking about overturning Roe v. Wade, I would think that this is this would be a better use of their time if they want to overturn prior cases.
ALEX: Yeah, it definitely comes at an interesting time. And you’ve been, you know, referring to this, this case, NCAA versus Austin from last year. Which dealt with non-cash compensation to student athletes for academic purposes. And, and, you know, it really revolved around the NCAA being in violation of antitrust law. And the Supreme Court, as you said, went out of its way to point out how the the court had, you know, kind of dabbled with this antitrust exemption in the past. But but brought up that I you know, they they quote, they quote, past rulings that call it unrealistic and inconsistent and an aberration. And they didn’t, they didn’t have to do this, but they do bring it up. And it kind of invites a sort of challenge to the antitrust exemption. So I mean, in your opinion, why do you think that they, you know, made the choice to actually bring this up in that ruling? And how did it kind of inform how you guys put together [41:47]–
JIM: But it came up, it was interesting, it came up in the context of essentially, the the NCAA was arguing what was mounted to an exemption of the antitrust laws. They were arguing that because of amateurism. That amateurism should be recognized as a legitimate exemption to the antitrust laws. And what the court said was, we, we have traditionally avoided creating exemptions to the antitrust laws. And in that context, they mentioned the fact that they they had, they had created this bizarre antitrust law, antitrust exemption for Major League Baseball. And I do believe that they were really inviting somebody to come and and see whether or not it was gonna last forever. If so, we’ve accepted the invitation.
BOBBY: So I wanted to talk a little bit about Minor League Baseball and its current state and what MLB is trying to do with it that invites this specific case against it. So there was used previously 160 teams, MLB decided to sort of pull those Minor League teams a little bit closer under their umbrella and make decisions to ostensibly benefit their business benefit the Major League level clubs, by limiting the amount of teams that they actually had to run and oversee. Can you talk a little bit about why making what seems to be a decision for player development or decision for the MLB, 30 MLB teams clubs business would lead to something that would be in violation of antitrust?
JIM: Well, yeah, I mean, look, it it the the mere mere fact that it’s a a group of people get together and do something that’s in their best interest, does doesn’t mean that, that the antitrust laws are not implicated. I mean, you know, group of people can get together and say, you know, if we were competitors, and how about we all fixed prices? Now that’s certainly to their benefit, but it it doesn’t, it doesn’t. It doesn’t mean that it it’s something that’s not covered by the any trust laws. And similarly, here, you have a group of of of competitors, 30 teams, who previously had had a larger number of Minor League teams that essentially over time, as I’m sure you know, different Minor League teams affiliate with different clubs over time. There’s essentially, you know, a competition from minor league teams. And what they decided to do is we didn’t want to we don’t want that anymore. Because it’s costing us too much money. We don’t need aren’t in 60 teams. We only need aren’t they decided they collectively they only did aren’t 20 teams. Now that, obviously impacted minor league players at at one level, and I’m sure there’s people out there who are thinking about bringing lawsuits on that, on that ground. But it directly impacted my players because they were running the business.
ALEX: On on the topic of minor leaguers because we talk a lot about kind of the the condition under which Minor League Baseball players play, right? Obviously, Major League Baseball is effectively exempt from minimum wage laws. In part because of this antitrust exemption, they’re allowed to basically determine the salaries that minor league players are paid. And a potential overturning of this exemption would have a lot of wide ranging implications from everything to expansion and team relocation to possibly leading the way to a Minor League union. Do you see that as a potential possibility? I mean, is this, is this case, the one to maybe open up the path to kind of toppling the rest of these dominoes? Or, or are you more taking on a specific angle of the exemption if that makes sense?
JIM: Well, I mean, you know, obviously, we’re focused on the injuries that were caused by our individual plaintiffs. But to, a lot of that would depend on the matter if if the Court were to take this case, after we go through the lower courts. And on, on the cert petition, first of all, at least, it would indicate that we’re likely going to make major changes in the mage–in the baseball exemption, although, as you pointed out earlier. Or as was pointed out earlier, that didn’t happen in Flood, although I think it would almost certainly happen if they took the cert. And so it would really depend on the matter the way in which the court, they they could rule in a very narrow way. With regard to our particular situation. I think it’s more likely that they would have a a broader decision that simply eliminated the exemption. And if that were to happen, it would have significant implications on many different levels, including, as you indicated, franchise relocation, certainly how they treat minor league players. And yeah, that probably would very well likely lead to some kind of [47:10].
BOBBY: How are you expecting MLB to respond to this? I mean, I know it’s hard to sort of predict the future. But what are you expecting from them kind of in the short term to prepare themselves for the very, very realistic possibility that this actually does go all the way up to the Supreme Court?
JIM: Well, I think, you know, I think they will make a number different kinds of arguments I’ll sure, I’m sure they’ll attack our antitrust theory, you know, as it’s night follows day. I think they’ll a lot of argue, I I hate, I hate to, you know, give them ideas, but [47:45], they’ll make these arguments–
BOBBY: I can, I can assure you that Rob Manfred does not tune in to this podcast.
JIM: Yeah. I’m sure they’ll probably argue that, you know, that they’ve relied on this exemption from it all these many years. And it would be, it would be unfair to suddenly pull the rug out from under them, blah, blah, blah. It’s kind of bizarre argument, they’ll make it. And of course, they’ll just make the argument that stare decisis should should hold. Go to Congress, they’ll say, just like they did in Flood.
ALEX: Right, exactly. And and so, you know, in the past the the courts have either upheld that original decision. Or they have said, go to Congress, let’s let you, let’s let them kind of figure this out, right? And that’s what the players and and the owners did in in 98, right? Was they went to go and get this exemption to–
JIM: Right.
ALEX: –exemption. And I I guess I’m curious if you, if you see this as fairing any differently, but more importantly, I think there’s, you know, there’s kind of been some broader political discussion about this. It came up in the, in Major League Baseball’s decision to move the All-Star game out of Atlanta. You saw-
JIM: Right.
ALEX: –some, some members of Congress kind of bringing this up. So–
BOBBY: Whether or not they were doing it seriously, or just for likes on Twitter.
JIM: That’s–
ALEX: Right.
JIM: That’s a, whole another question.
ALEX: Right. Well, so do you think that a case like this maybe puts a little more pressure, like whether it succeeds or not, does it put any pressure on Congress to kind of take this up? Or does it still remain in teams player’s hands to actually bring this to the forefront?
JIM: Yeah, look, you know, I don’t have to to you you guys know what Congress is like today. More than or perhaps more than anybody. I, I doubt whether or not other than your political machinations as as what happened with regard to the Atlanta situation. I dealt with whether or not and given other issues that confront the country that we we’d have a particularly good chance of getting the exemption eliminated by Congress. Which is why you’d have to go back to the Supreme Court. They created, they created this stupid exemption, they got to get rid of it. It’s–
BOBBY: Yup.
JIM: –it really isn’t Congress’s duty to to get rid of something that they did that was stupid.
ALEX: Right.
BOBBY: See, that’s what’s was so confusing to me about in the past, the court telling whoever was filing to go to Congress, or MLB. Making the claim that you need to go to Congress to get this exemption overturned is because, well Congress passed the antitrust law to begin with, and then the court carved out this specific exemption for MLB. So I don’t understand how it then the onus goes back towards Congress, to say no to the exemption for a law that they originally passed that they wanted to apply to everybody. It just it just seems very confusing to me. But then again, I mean, I’m not like, you know, an expert in sort of the checks and balances the American government in that way.
JIM: Well, I think it, look, we have we do have a different makeup of the Supreme Court now. And certainly back in 1972, to and clug was decided. And some of the, of the newer members of the court are putting aside politics, they are judges that have a good grasp on the antitrust laws. And the fact that it was Judge Gersh that wrote the majority opinion and went after the antitrust exemption. And then Judge Kavanaugh, essentially supporting that, in his concurring opinion. Tells you that, you know, they’ll treat the antitrust laws, seriously.
BOBBY: Jim, what’s what’s next for the case? What are the kind of upcoming important dates? And and how quickly do you expect us to move?
JIM: Well, you know, the right now, we expect them to file a motions to dismiss. Based on the exemption and other things as well, probably in the latter part of February. And we’ll, we’re going to try to get this resolved, at the District Court level, as quickly as possible, get to the Second Circuit as quickly as possible. Because I’m assuming that that’s what will happen. And, you know, I I’m hopeful that we could get all these preliminaries wrapped up by the end of the year and, and be in a position to file a petition with the Supreme Court next year.
ALEX: Right. I think the the case, as I understand it, is built to kind of fast track through the court systems, right? You don’t name any specific teams, because you don’t want to get tangled up in kind of specific like state to state–
JIM: Right.
ALEX: –law. Again, we’re far from legal experts here. But kind of what does that what does that path through the courts look like? Like, what is your I guess, best case scenario in bringing this all the way up to the top is just appealing, appealing, appealing?
JIM: Depends on how quickly the courts will act, obviously. But I think that if we could, as I as I mentioned, if we could get through the District Court, and this and the Second Circuit, by the end of the year. We’d have a shot at at filing a petition next year, and perhaps getting it heard next year in the Supreme Court. You know, God willing.
BOBBY: Because we know how quickly those things always tend to move here. Jim, I wanted to give you a chance to Is there anything else about this case that you kind of want to discuss? You know, knowing that we are a podcast that like Alex said, discusses minor, the minor leagues a lot in the state of Minor League Baseball, and the health of it, and the communities that support it, and the players? Is there anything else about this case that you kind of want, you think we should know? Or you think our listeners should know?
JIM: Well, you know, on a broader level, and it’s not so much of a legal issue, it is a you know, almost a moral issue yet. Eliminating 42 teams in small towns all over America. It doesn’t seem like the smartest thing to do. And, I mean, not all the teams are completely eliminated. They were, you know, they’re in independent leagues and so forth. And then some of them are in college leagues but it’s certainly not they’re not affiliate once once you’re not affiliated with a Major League team, you lose a lot of you choose. It’s then it becomes something you know, a little bit above the level of of a [54:41]. And the fact that the Major League Baseball could cavalierly simply say, okay, we’re just going to wipe out 42 teams and 42 little towns all over America is kind of amazing, actually.
ALEX: Yeah, we talk a lot on the show about, you know, responsibility like what the responsibility is of teams to their communities. I look at a state like, like West Virginia, which I think is, you know, I I mean, I don’t know that they’re a part of your case, but they lost three.
JIM: Yeah.
ALEX: I believe they lost all of their Minor League teams, right? This is a a state that had like three or four minor league teams. Now that community doesn’t have any and it really strikes me as somewhat short sighted, and and certainly not in the best interest of the health of the game or, or, you know, cultivation of love for the game to–
JIM: Yeah.
ALEX: –do this, this sort of thing. It’s a very cavalier [55:37]–
JIM: [55:37] what were they thinking? I mean, you get it, they they eliminated the whole New York-Penn League, which, which–
BOBBY: Yeah.
JIM: –mostly in little towns in upstate New York and Eastern Pennsylvania is one you know, one of our places in Connecticut but that whole area, small towns love Baseball. Don’t have it anymore.
ALEX: Yeah.
BOBBY: Yeah, I mean in, in it alliance. It’s like, it’s it’s this idea that Manfred this, but for sort of this idea of One Baseball, but who is that One Baseball really serving? Is it serving all baseball fans? Or is the One Baseball really only serving Major League Baseball. Which again, kind of cycles back to this idea of them being antitrust exempt. They can make that decision for themselves rather than everybody getting to have a say in that decision. Whether it’s from a legal perspective, or kind of like you said, Jim, more like a, a moral or a community or a sport building perspective.
JIM: Well, you know, if you’re billionaires, you get to do what you want.
ALEX: That is that is the tagline of this show. Jim, thank you so much for being so generous with your time.
JIM: Absolutely. [56:40] pleasure.
ALEX: We really appreciate you coming on.
JIM: Enjoy and take care. Bye bye.
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BOBBY: Thank you, everybody, for listening. Thank you to Jim Quinn, for like you mentioned in our intro, Alex. Actually speaking in an intelligent way about stuff that basically amounts to business law and sports law. As opposed to just yelling about it like we do week in and week out. Hope that that was informative for everybody. We’ll be back on Monday. In the meantime, thank you for listening. And I know that we release this episode, midweek, which we don’t typically do. So if you’re, if you’re listening to this right now. And you haven’t gotten a chance to go backwards a couple of days and check out our pod with Emma Baccellieri about the formation and the downfall of the Players’ League in 1890. A co-op style baseball league. You’ll want to go check that one out. If only to find out what it means to be a baseball list.
ALEX: Is this where I can get my takes off about how fucking stupid the Hall of Fame is? Oh my god, I’m sick of the discourse. I know. Like, almost–
BOBBY: You didn’t, wait, you didn’t get all of your your tapes done in the 30-minute soliloquy that I let you have at the at the top of this two-hour podcast?
ALEX: God damn it. Did you seriously, you?
BOBBY: I ran that, yeah.
ALEX: Hmm. And that’s unfortunate. This is–
BOBBY: Nice knowing you. I have fun retiring to a bunker.
ALEX: No one needs takes about Curt Schilling. I just, we’re we’re at the point where it’s such a complete joke. And everyone in the sport knows it’s a it’s a complete joke. Even though some of the writers, right? Are like opting out of voting. And I’m like when your voting body is opting not to vote that maybe tells you that it’s time to kind of re-examine some things.
BOBBY: We’re at the state of the Hall of Fame that you know fire departments get when they’re like you have to just let the building come all the way down. Like there’s no sense in trying to put the fire out anymore. It’s just let it fall safely.
ALEX: Ohhh, we’re not far off from that. From that fire spread into Major League Baseball either. So–
BOBBY: Some might argue that it’s already happening. Thanks, everybody for listening. We will be back on Monday.
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[Music]
[59:04]
[Outro]
ALEX RODRIGUEZ: Hello everybody, I’m Alex Rodriguez, Tipping Pitches, Tipping Pitches. This is the one that I love the most Tipping Pitches. So we’ll see you next week. See ya.
BOBBY: But before we do all of that, I am Bobby Wagner.
ALEX: I am Alex Bazeley. Oh, fuck!
BOBBY: What? You [59:23]–
ALEX: [59:23]
BOBBY: –I didn’t start recording?
ALEX: I never started recording. I am Alex Bazeley.
BOBBY: And you are listening to Tipping Pitches. A podcast that Alex Bazeley records his half of.
Transcriptionist: Vernon Bryann Casil
Editor: Krizia Marrie Casil
Tipping Pitches 
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