Bernie Sanders threatened MLB’s antitrust exemption, and an old task force better support that

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A little over one year ago, I wrote about how it’s too late for the United States Congress to save Minor League Baseball like some of its members had hoped to prior to MLB’s disaffiliation of dozens of teams, but that there was still time to punish the league for their monopolistic actions. The punishment that would work best was and is the removal of MLB’s antitrust exemption, the existence of which allowed them to get away with shrinking the minors without anything stopping them from doing so in the first place.

While there was basically silence on the issue coming from Congress from the time I wrote that last February until now… well, now is a little different, because Senator Bernie Sanders is making the removal of MLB’s antitrust exemption a priority. Legislation has been introduced, and as Sanders explained on HBO’s Real Sports, it’s not just because of MLB’s removal of 40 minor-league clubs, but also the owner-imposed lockout that was clearly designed to just break the union and gain further control and power over the players.

Simply describing this as overdue is letting Congress off the hook. Sure, the antitrust exemption has been threatened before, but always in a way where it was clear that what was happening was just some political chess, where Congress would say they wanted to get rid of the antitrust exemption, but could be swayed not to so long as MLB gave in to whatever it was that the federal government wanted. The most recent moment of significance like this came during the height of the fallout from the steroid era, when Congress was desperately looking for a distraction from the unpopular Iraq War and the very preemptive mission accomplished banner unfurled by then-President George W. Bush, so, they turned to MLB, and tut-tutted steroid usage and won’t somebody think of the children and such until MLB had shored up their penalties for taking illegal performance-enhancing drugs.

The antitrust exemption was never in any real danger then, because it was simply being used as a reminder that MLB fell under federal jurisdiction if push came to shove. Commissioner Bud Selig, if anything, saw all of this as an opportunity to throw the union under the bus and rehabilitate his image to make him the baseball equivalent of a Tough On Crime leader, and was only too happy to help Congress out with their charade for his own benefit.

What feels different this time is that Sanders actually, like, believes the things that he says? And isn’t doing this to gain any kind of leverage over Major League Baseball, or as a distraction against the unpopularity of the federal government, or anything like that. MLB’s antitrust exemption is 100 years old, and shouldn’t have reached half of that age. The Supreme Court has even admitted in the past that it’s a relic of a prior age, but that removing it wasn’t something they should do, given that Supreme Court rulings have retroactivity, which would open MLB up to lawsuits on every single thing they did under the protection of their exemption. Which is why I’m not too enthused about a couple of disaffiliated clubs filing an antitrust suit against MLB, since, basically, the system they’re working in is designed to keep them from finding success even if they’re correct. Congress, though… Congress can remove the antitrust exemption without opening MLB up to any punishments on their past behavior, with the goal being to keep MLB from ever acting like a monopoly again.

It would mean MLB couldn’t just carry out a second disaffiliation wave of the minors once their current deal expires. It would mean alternate leagues could form without MLB being able to throw their weight around to stop them in the same way they currently could: they’d still obviously have the financial clout to inhibit the success of alternatives, but still, if any kind of big-league alternative popped up that could offer more immediate or better possibilities than what MLB is able to offer many draft picks or the international players they hope to make draft picks out of soon, that might force MLB to improve facets of its business, so that they’re more pro-player. That might sound unlikely, but remember: that’s how basically any pro-player change occurred in MLB and its more nascent forms in the decades before the Players Association organized. And MLB protecting themselves against the formation of alternative leagues is how they ended up getting the antitrust exemption in the first place.

What I’d like to see is for the Save Minor League Baseball Task Force spearheaded by Representative Lori Trahan back in 2019 to reform with the goal of supporting Sanders’ legislation. Obviously, that Task Force got its start in the House of Representatives, not the Senate, but any legislation is going to need to make it through both houses with enough support to actually strip MLB of this exemption. Trahan implied to me, back at the time the task force was forming, that they were willing to go as far as taking the antitrust exemption away — the meaning of “everything is on the table” can only be interpreted so many ways, you know —  so now I’d like to see that play out. MLB did what they threatened to do: Congress didn’t lift a finger to try to stop it from happening once the coronavirus pandemic hit, and they haven’t tried to punish MLB for their behavior after the fact, either, even as the government pretends that’s a wrap on COVID.

Sanders is going to need support: he’s the perfect politician to lead this crusade against MLB, but he’ll need support among his peers in order to make it happen. Hopefully, those conversations are already happening, and the antitrust exemption won’t live long past its 100th birthday.

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