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If you’re a fan of baseball video games, and have been waiting for minor-league players to finally be included in one, you’re in luck! The latest edition of MLB The Show is going to include full minor-league rosters for the first time ever. Oh, here’s just a tiny side note: those minor-league players aren’t going to be paid for the use of their likeness in the game, because MLB owns those and can do whatever they want with it.
Minor League Baseball’s players sign a uniform contract. MLB players also have uniform contracts, but the language contained within those has been negotiated over the course of decades through collective bargaining, and that uniform language is a base upon which they can build specifics. Not so with the minors, where the contract is the contract, and cannot be altered by the players: sign it or don’t sign it, but only one of those outcomes allows you to play pro ball under the MLB umbrella.
Within that uniform MiLB contract is the signing away of a player’s rights to their likeness, which MLB will then own for whatever purpose they intend. In this case, to bolster the features of MLB The Show, the only baseball video game of its kind on the market, and profit from licensing those likenesses to the developer and publisher. Profit that the players won’t share in, as both that contract, some digging, and the reactions of surprised minor-league players on Twitter can attest.
As minor-league players lack a union, they haven’t been able to negotiate away that kind of contract language, or earn themselves control and the ability to profit off of the use of their likenesses. One of the many questions about the formation of a minor-league union or unions includes how they would be able to fund themselves, especially early on. One answer to that is through the use of their likenesses: it’s what the Major League Baseball Players Association did after Marvin Miller took over, when they had battles to fight but an empty war chest. Reworked licensing deals with trading card companies filled the coffers of the MLBPA and the pockets of the players, too, giving the union a way to pay Miller’s salary and hire the help and staff the players needed, while also showing the players what banding together could do for them and their finances.
And a union is about the only way MiLB players are going to be able to fight this thing. This will take a moment to explain, but, the closest analogue to MLB using MiLB player likenesses without paying them for them comes from the NCAA. While the National College Athletic Association has seen their ability to get away with that crumble over the years — especially in this decade, where lawsuits and public awareness have forced them to admit they might have to start ceding territory on player compensation — they essentially functioned as a cartel that enriched top schools and the NCAA itself for decades, at the expense of thousands and thousands and thousands of “student-athletes,” which is the NCAA’s version of MLB’s “part-time seasonal apprentice” defense for not paying players what they’re worth.
A video game and likeness rights was even a major turning point in the athletes’ battle against the NCAA:
At various points in his 63-page opinion, Judge Bybee also identified how NCAA rules have injured student-athletes. For instance, in regards to players appearing in video games, he wrote, “the plaintiffs have shown that they are injured in fact as a result of the NCAA’s rules having foreclosed the market for their NILs in video games.”
Players were not paid for their likenesses in video games such as EA’s NCAA Football series, and eventually, the NCAA had to break off their deal with the video game giant due to the legal issues surrounding the use of those likenesses. Now that the NCAA has begrudgingly acknowledged that maybe it’ll be just fine in the future if players are able to profit off of the use of their likenesses, that beloved football franchise can come back, and without the guilt of your enjoyment coming at the expense of the players, even.
This all might give you some hope for MiLB players eventually winning the rights to be paid for their likeness through the courts, but there is one major weapon the NCAA’s opponents had that MLB’s do not: the threat of a breach of antitrust law. MLB has an antitrust exemption, while the NCAA, like every other non-MLB sports entity in America, does not. MLB’s antitrust exemption can be challenged by way of this likeness situation contained within the contracts, using MLB The Show’s lack of profit-sharing as a focal point, but that’s not the same as being able to accuse an organization that isn’t allowed to act like a monopoly of illegally acting like a monopoly. Whomever challenged MLB would need to prove that this kind of behavior just proves the league shouldn’t have antitrust rights, which is an approach that’s failed on multiple occasions since the Supreme Court wants no part of overturning a decision that’s nearly 100 years old, even if they continually admit that it was a mistake.
And that’s because if the Supreme Court overturns the antitrust exemption, the floodgates will open, and MLB can be challenged in court, retroactively, over anything related to antitrust law. So, you know, for just about anything they’ve done for nearly a century now. There isn’t and hasn’t been a Supreme Court out there that is going to open all of that up just to get a proper ruling in the present. If Congress gets rid of the exemption, that’s a different story — the same retroactivity issues don’t apply to decisions made by Congress — but it’s still unclear at this point just how serious that branch of the government is about protecting the dozens of minor-league teams MLB is threatening to disaffiliate, so it’s also an open question of whether they’d be useful in this antitrust fight.
This is a long way of saying that MiLB players are in somewhat uncharted waters here, but we know enough of where they are to know that a union would help them navigate to shore. In fact, it’s the only way open to them. That doesn’t mean one is coming tomorrow, but as with so many other questions minor-league players have, a union is the answer.