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I can’t sit here and tell you that the Senate Judiciacy Committee questioning the legality of MLB’s century-spanning antitrust exemption is going to go anywhere productive. What I do know, though, is that the lone road to removing the antitrust exemption goes through Congress, and not the Supreme Court, so this is news worth taking note of all the same.
This isn’t just because SCOTUS is currently a wildly conservative institution set to roll back regulations and human rights in favor of corporations’ profits and the whims of a right-wing Christian sect that longs to be back in the seat of power in a country where separation of Church and state is supposed to be a thing. Though, uh, that certainly doesn’t help. No, it’s because, historically, going to SCOTUS for help with the antitrust exemption has failed, due to retroactive liability. If SCOTUS removes the exemption — one past iterations of the courts have outright admitted has outlived the norms of the era it was instituted in, and should be removed — it would open MLB up to a number of suits for behaviors that were previously protected. If Congress were to remove the exemption, though, then there is no such issue with retroactivity: only punishments going forward, should the league engage in antitrust activities that are no longer legally open to them.
None of this is news, of course, unless it’s your first time around these parts. Back in January, in reaction to four former Minor League Baseball affiliates filing suit against MLB to challenge their antitrust exemption, I wrote that:
It is worth noting that the Supreme Court has recently gone after the NCAA and their precious student-athlete distinction in a way that was not necessarily considered possible, and the door is open for further dismantling of that exploitative system. So maybe precedent will mean less than it used to with regards to MLB’s antitrust exemption, even if the Supreme Court’s involvement would be akin to opening up Pandora’s box, or cans of worms, or cans of whoops ass, take your pick of contextually appropriate idiom there. That being said, though, the NCAA does not have an antitrust exemption: MLB does, and therefore, they have more leeway to run their business in a way that would violate antitrust law than the NCAA does. And the NCAA has gotten plenty of leeway for a long time even without an exemption to back them up, so you can imagine how protected MLB must feel. Supreme Court Justices can mention MLB in their NCAA write-up, but in the end, this is the truth of things unless a notably conservative court is suddenly and surprisingly going to go to bat [sports term] for someone other than a major corporation in a more meaningful way than just some lip service.
That the suit might fail is no reason to avoid filing it, though. It is entirely possible that, at some point, Congress reacts to the string of challenges to the antitrust exemption that SCOTUS seemingly wants to overturn but will not due to retroactivity concerns, and takes it upon themselves to remove it in the least harmful or confusing way possible. That, of course, would require Congress to take action in a way no one should have real faith in them to do, which is why so much hope rests on these antitrust suits in the first place, but still.
So: as little faith as I have in the Senate or House (or both) coming together to strip MLB of its antitrust exemption, there is more of it, and more reason to believe that it could actually happen, when you’re pitting Congress against SCOTUS. As Jeff Passan noted on Twitter, the Judiciary Committee is also asking Advocates for Minor Leaguers — in an attempt to fully understand the scope of the plight of the players impacted by MLB’s antitrust behavior — about how MLB brings international amateurs into the fold, as well as how repealing Save America’s Pastime Act could change things for players. This isn’t just about the antitrust exemption, but could very well be Congress finally getting together to deal with MLB disaffiliating dozens of minor-league clubs prior to the 2021 season. Better late than never, I guess.
There is a long way to go, of course — this is all exploratory, for one, and assessing a situation doesn’t mean said situation will actually be addressed. Again, though, lawsuits seem to be a dead end, other than for raising awareness that there is an issue to begin with and that someone besides SCOTUS needs to step up and fix it. And since there is always the risk that a specific court goes, “no, the antitrust exemption is good, and frankly could stand to result in more oppressive behavior if we’re being honest,” even that isn’t a given.
While Bernie Sanders hasn’t hopped into this bipartisan alliance just yet, he’s been vocal in the past, both distant and recent, about MLB’s exemption. So he’s probably on board, assuming that his peers in the Senate aren’t set to, I don’t know, remove the exemption in a bill that also declares that each public school classroom will have its own personal police officer who is also the teacher now. What I need to see now, and is more of an open question than Sanders’ support, is for the former members of the Save Minor League Baseball task force that was put together amid the rumors of disaffiliation to start speaking up, loudly, about the existence of the antitrust exemption.
There were hints from one of the creators of that committee, Representative Lori Trahan, that threatening MLB’s antitrust status was on the table: now would be the time to go in on that. As I’ve said before, it’s too late to stop disaffiliation, but it’s not too late to punish MLB for going through with it. And doing so could benefit players of the present and future, as well as whatever cities are set to be on the chopping block the next time MLB decides to downsize.
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