https://reveal-player.s3-us-west-1.amazonaws.com/713_Reveal_A_Block_PC.mp3

From the Frisco RoughRiders to the Dayton Dragons, minor league baseball teams are a classic American tradition. But their players are not covered by some classic American laws: Players can earn less than the equivalent of minimum wage and don’t get paid overtime.

We explore how that’s even possible with the podcast The Uncertain Hour from our colleagues at Marketplace. This season, they’re looking at how certain companies – and whole industries – maneuver around basic worker protections.

The Uncertain Hour’s Peter Balonon-Rosen explores just how low wages really are in Major League Baseball’s “farm system” of minor leagues, where the MLB calls players “trainees.” Minor league players share stories of having to sleep on air mattresses, splitting rent with up to seven other players and barely being able to afford a burrito.  

Then, Krissy Clark, host of The Uncertain Hour, takes us back to the 1930s to show how companies have been pushing back against worker protections since they first became law. 

Finally, we go back to the ballfield to learn how the MLB has exploited loopholes in federal law to get around paying minimum wage and overtime. One former minor league player-turned-attorney filed a class-action lawsuit against the MLB and its teams. The league responded by lobbying Congress to explicitly rewrite federal law to say baseball doesn’t have to follow the same pay standards as other industries. The game was on.

Credits

Reported by: Peter Balonon-Rosen, Krissy Clark | Produced by: Caitlin Esch, Chris Julin | Lead producers: Peter Balonon-Rosen, Krissy Clark | Edited by: Catherine Winter | Production manager: Amy Mostafa | Mixing and sound design: Jim Briggs and Fernando Arruda, with help from Brett Simpson and Ameeta Ganatra | Digital producer: Sarah Mirk | Episode art: Molly Mendoza | Executive producer: Kevin Sullivan | Host: Al Letson

Special thanks: The whole team at The Uncertain Hour, including Muna Danish, Daniel Martinez, Marque Green, Sam Anderson, Robyn Edgar, Tony Wagner, Erica Phillips, Sitara Nieves and Reveal’s Katharine Mieszkowski.

Transcript

Reveal transcripts are produced by a third-party transcription service and may contain errors. Please be aware that the official record for Reveal’s radio stories is the audio.

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Al Letson:From the Center for Investigative Reporting and PRX, this is Reveal. I’m Al Letson. Anthony Shew started driving Uber and Lyft to help make ends meet. He had another job, but it wasn’t paying the bills. So he’d get in his car, fire up the app, and get ready to talk with his customers.
Anthony Shew:It’s part of the culture there in San Francisco. So get in, “Hey, how’s it going?” Blah, blah, blah. And, “All right, sounds good. Yeah, I’m just on my way to work.”
Al Letson:People would ask if he drove full time and he’d be like, “No.”
Anthony Shew:I actually play professional baseball.
Al Letson:Yeah, he’s a professional ballplayer. Anthony would tell them about his other job as a minor league pitcher for the St. Louis Cardinals.
Anthony Shew:There’s a moment where people are a little bit baffled, “Yeah, but you’re driving my Uber. What do you mean you’re a professional athlete?” “Well sir, I make about 400 bucks every two weeks and that’s only half the year.” “But isn’t that like a multi-billion dollar industry?” “Yeah, and I have skills that only 0.0001% of people have in a multi-billion dollar industry, but the economics of it don’t work out apparently.”
Al Letson:Today, we’re bringing you stories from the podcast, The Uncertain Hour, from our colleagues over at Marketplace. This season, they’re looking at how businesses legally get around providing basic employment protections like minimum wage. We’re going to start with minor league baseball, where a battle over the minimum wage has been playing out for years. It’s a story with some big winners, some big losers and players paying a big price to pursue a dream. We’ll get back to Anthony’s story in a bit. But first, Peter Balonon-Rosen, the producer for the Uncertain Hour, is going to take us out to a minor league baseball game.
Peter Balonon-R…:I grew up in Rochester, New York, a city with five minor league sports teams. I’m not kidding, five. We had basketball, hockey, lacrosse, soccer, and of course baseball. Baseball was definitely the most popular one in town. We’d go as a family every summer.
Marissa:What’s up?
Peter Balonon-R…:Hey. I called up my sister Marissa recently to talk about the Red Wings, our minor league baseball team.
Marissa:Rochester Red Wings, definitely there’s a special place for them in my heart.
Peter Balonon-R…:Why?
Marissa:Because they chose me to go down during the seventh inning stretch.
Peter Balonon-R…:Red Wings games are super fun. In between innings, they’d have competitions on the field. Kids would compete for who could throw the most balls into a crate, or have a dance-off with Spikes, the team’s big red bird mascot. This one night, I’m in elementary school, my sister’s in middle school, and they chose her to compete. She was stoked.
Marissa:This doesn’t happen to you, not at Rochester or anything, but it happened to me.
Peter Balonon-R…:Okay. Marissa and two other girls were going to go on the field and race while holding trays loaded with big, fake sandwiches. Whoever won without dropping any would get a prize.
Marissa:It’s like, “Oh, I’m winning this.” I got in the lead, I circled around the mascot Spikes, and I won.
Peter Balonon-R…:Yeah, she smoked those other girls.
Marissa:So I won a Rochester Red Wings hat that I still wear to this day, signed by Spikes.
Peter Balonon-R…:You still wear it? It still fits your head?
Marissa:Of course. Wow, Peter.
Peter Balonon-R…:They gave you a big hat or you just have a small head? The Red Wings were a constant in our lives. My sister had birthday parties there, I’d go with friends during the summer, load up on fried dough. My friend down the street, his brother was a bat boy, then he was too. But what I didn’t know as a kid was what was happening behind the scenes at some stadiums when it came to pay, something still playing out today.
Baseball player:We’re talking about wages that don’t even meet minimum wage thresholds.
Anthony Shew:The amount that we do get paid is so small that it’s truly baffling.
Baseball player:Between $3 and $5 an hour I’d say.
Peter Balonon-R…:If we think about baseball as a workplace, you’ve got to understand the company layout. The players I watched growing up, they wore Rochester Red Wings jerseys, but they were technically employees of the Minnesota Twins. A player signed a contract with one of major league baseball’s 30 franchises like the Boston Red Sox or New York Yankees, then the MLB and those franchises assign guys out to where they’ll actually play.
Anthony Shew:I am an employee of the Cardinals, but I’m doing work for whatever team it is that I’m on.
Peter Balonon-R…:This is right-handed pitcher number 31, Anthony Shew, who we heard from earlier. He’s the type of guy who makes a good athlete, confident, quietly driven. A few weeks after he graduated from his college baseball team, Anthony was out getting ice cream with his girlfriend, when he got a phone call. It was a man who said he had good news.
Anthony Shew:“The St. Louis Cardinals want to offer you a signing bonus, and have you on a contract,” and I said, “Yes, absolutely.” And he said, “Awesome. You’ll get a plane ticket in your email, and it’ll be to Johnson City, Tennessee, and off you go.”
Peter Balonon-R…:Anthony was being hired by the St. Louis Cardinals. He would start as a player for the minor league Johnson City Cardinals.
Anthony Shew:It was a pretty quick moment of, “Yes,” and then, “Okay, I’ve got to get in the car so I can get down to catch the flight.”
Peter Balonon-R…:So, you said they offered you a signing bonus. How big was your bonus?
Anthony Shew:After taxes, I got 600 bucks in my bank account.
Peter Balonon-R…:600 bucks. The top draft pick that year saw a $6 million signing bonus, but Anthony’s 600 bucks is more typical for players in the later rounds.
Anthony Shew:Even with my baseball scholarship, I was finishing school, and I knew I had a lot of debt, so I just went ahead and put it on my loan.
Peter Balonon-R…:Right immediately?
Anthony Shew:Yeah, there went my 600 bucks.
Peter Balonon-R…:The contract Anthony signed is called the Minor League Uniform Players Contract. It’s the exact same for every player. Everyone signs to a team for seven seasons, and they all make the same salary at first. The only thing that sets you guys apart, their signing bonus.
Anthony Shew:Everybody in baseball knows that minor league baseball players don’t get paid that much, but it can’t be all that bad, right?
Peter Balonon-R…:When Anthony got to Tennessee, the team set him up to stay with a host family, this recognition that minor league players might not make enough to house themselves. Anthony got to work. On a typical day, he’d show up at the field hours before the game for team warmups, pitching practice, batting practice, weight training. Then, he’d play the actual game. Following that, he’d shower, grab a bite to eat, then leave the stadium.
Anthony Shew:We’re usually there from 2:00 PM-ish to midnight-ish.
Peter Balonon-R…:That’s like a 10 hour Workday pretty much.
Anthony Shew:Then we play every single day, so it’s going to be seven days a week.
Peter Balonon-R…:No weekends. Historically, just one required off day each month and no overtime. No matter how many hours Anthony worked, his pay would be the same. A couple of weeks in, Anthony got back to the locker room and there was an envelope waiting for him.
Anthony Shew:It doesn’t say pay stub on it or anything, it just looks like an envelope. So you pick it up, open it up and net pay 425-ish. Then, somebody whose mom was an accountant or something, “Oh, my mom’s told me about that. Net pay is what shows up in your bank account.” “Okay, thanks dude.” Turn around and start to stare at it some more. So 425, that’s what I got. Let’s see. So this was for 14 games, and I was here from like 2:00 PM to midnight every day, and I got $425? Is this missing a zero maybe? More guys come into the clubhouse behind you, and everybody starts looking around and we’re like, “We know what we signed for, but this just got really, really real.”
Peter Balonon-R…:Anthony says, before taxes, his bi-weekly paycheck was around 500 bucks. He did the math, less than $4 an hour, but it was a contract every minor league player signed.
Anthony Shew:The amount that we do get paid is so small that it’s truly baffling.
Peter Balonon-R…:Consider this. The federal poverty line for an individual is a yearly income of about $13,000. There are a few different levels of the minors, but players at the lowest level made till recently about $3,500 a year, less than a third of what someone living at the poverty line would make. Now, the closer you get to the majors, the more money you get, but almost all players make poverty level wages. One big reason annual salaries are so low, players only get paid when games, happen during the season.
Mitch Horacek:However, you’re expected to do a lot more outside of those games, right?
Peter Balonon-R…:This is number 27 left-handed pitcher, Mitch Horacek. He was with the Minnesota Twins organization when we spoke. Today, he’s a free agent.
Mitch Horacek:Spring training is usually 45 days, and there are no off days in spring training for most organizations. I mean, there’s zero, and you don’t get paid for that.
Peter Balonon-R…:Teams put players up in a hotel, provide some food, but they don’t pay guys, just daily stipends for meals. Mitch says his first season, it was $10 a day.
Mitch Horacek:You can hardly get a Chipotle bowl. You can’t get one with guacamole, I can tell you that.
Peter Balonon-R…:So for minor league players, low pay in general, no overtime no matter how many hours you work, and you only get paid during the season, despite spring training, and fall instructional leagues, and other months. Which is how Anthony Shew, the Cardinals minor league pitcher, found himself driving Uber and Lyft.
Anthony Shew:There’s times in the off season where you’re like, “Oh man, I’m just trying to scratch and claw my way to get to next season, when I actually get a paycheck.”
Peter Balonon-R…:The MLB makes over $10 billion in revenue annually. But guys I spoke to said their experiences and the minors felt alien from that.
Anthony Shew:It’s a multi-billion dollar industry, there’s tons of money floating around everywhere except for the minor leagues. The level that you’re at as a baseball player starts to become how you’re treated as a person really.
Peter Balonon-R…:For Anthony and other guys, it was fast food on the road because you can’t afford anything else, bunking up with two, three, four, five other guys in two bedroom apartments just to make rent, and skimping on things that would keep their bodies in top condition, like an actual bed. It was almost a trope how many times people nonchalantly mentioned air mattresses.
Anthony Shew:Three full seasons I slept on an air bed.
Mitch Horacek:I had a mattress that was on the floor.
Garrett Broshui…:Four guys in I think a two bedroom apartment, just sleeping on air mattresses.
Eduardo Nunez:Airbags on the floor.
Peter Balonon-R…:This is Eduardo Nunez from Venezuela. He’s number 17, a minor league catcher for the New York Yankees organization. He says he’s living on even less than some other teammates.
Eduardo Nunez:When I get the paycheck, the half of the paycheck is going to my home.
Peter Balonon-R…:Half your paycheck?
Eduardo Nunez:Yeah.
Peter Balonon-R…:He sends half his paycheck to family in Venezuela. 30%, almost one in three professional baseball players, are born outside the US. MLB allows franchises to sign foreign players as early as age 16. Eduardo says, since he sends money home, he’ll bunk up with seven other guys to afford rent. When you’re living with these other guys, how many other guys from Latin America are sending money home?
Eduardo Nunez:Everyone. Everyone does.
Peter Balonon-R…:Eduardo says the wages and lifestyle aren’t what he imagined when he was drafted, but he’s just got to push through, and that’s something players from the US also told me. Like this one guy who worked as a janitor in the off season, he said minor league life was about paying your dues, hoping you get called up to the big leagues where players make a minimum of $570,000 a year.
Eduardo Nunez:It’s just life.
Peter Balonon-R…:Eduardo says that’s just life. Baseball is like any job, where you’ve got to work for a promotion.
Eduardo Nunez:Baseball is just being a job.
Peter Balonon-R…:Most jobs are paying the minimum wage here in the States.
Eduardo Nunez:Yeah, it’s true.
Peter Balonon-R…:Baseball doesn’t.
Eduardo Nunez:Yeah, it’s true.
Peter Balonon-R…:Do you ever wonder why it’s like this?
Eduardo Nunez:I never want to get to that point you’re asking to the team like, “Why are you paying us this much?”
Peter Balonon-R…:Does that feel like a dangerous thing to do?
Eduardo Nunez:Yeah. I don’t see nobody else asking that. I don’t want to be the first guy asking that.
Mitch Horacek:People are afraid. People are afraid of getting released for speaking out.
Peter Balonon-R…:Mitch Horacek, the pitcher, says a big part of this, no union. Major league players have one, but minor leaguers have never unionized. Mitch says, players can think the minors are just a stop on the way to the majors, so they don’t want to rock the boat. For those guys who are saying, “You know what? This is the minor leagues, you’re playing a game. You don’t deserve to be making the big bucks.” What do you say to them?
Anthony Shew:I say to them that, this is a job like any other. It’s a fun job, it is a job playing a game, but it is still a job, it is still work. So that work needs to be compensated.
Peter Balonon-R…:Plus, team owners and the MLB are certainly making money.
Al Letson:The life of a minor league player is long hours, hard work, and low pay, sometimes way below minimum wage. Which makes you wonder, why do we even have a minimum wage and why isn’t everybody covered by it?
Bill Sprigs:The compromise with them was, “Okay, you can’t say this only goes to white people.” So the compromise is, you can exclude certain occupations, that’s okay and we’ll live with that.
Al Letson:That’s next on Reveal, from the Center for Investigative Reporting and PRX.
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Al Letson:From the Center for Investigative Reporting and PRX, this is Reveal. I’m Al Letson. $7.25 an hour, that’s the federal minimum wage, just 58 bucks a day. And it looks it’s going to stay that way for a while. The senate voted against president Biden’s plan that would have doubled it. And those minor league baseball players we’ve been hearing about, their pay doesn’t add up to $7.25 an hour, and it doesn’t for some workers in other industries like construction, agriculture, healthcare, retail. At least 865,000 people earn below the federal minimum. That’s according to a conservative estimate from the US Bureau of Labor Statistics.

In some cases, workers earn less because a business is violating minimum wage laws. But in other cases, those businesses are using loopholes that are built into the laws. That’s what our colleagues from the Marketplace Podcast, the Uncertain Hour, have been looking into, how certain companies and whole industries maneuver basic worker protections. We’re going to get back to those minor league baseball players in a few minutes, but first Krissy Clark, the host of the Uncertain Hour, shows us how employers have been pushing back against these labor laws since they were first passed.
Krissy Clark:I want to take you back to the 1930s. The country’s already plunged deep into the Great Depression, jobs are really hard to find, and a lot of the jobs that do exist have wages that are really, really low.
President Roose…:Here is the challenge for our democracy.
Krissy Clark:Here’s President Franklin Roosevelt in his second inaugural address in 1937, talking about just how bad things are for so many people.
President Roose…:I see millions of families trying to live on income so meager, that the pull of family disaster hangs over them day by day.
Kate Griffith:People were willing to say yes to anything, even if there were pitiful wages, even if they didn’t give them enough to buy enough bread for their family.
Krissy Clark:This is Kate Griffith. She’s chair of the labor relations law and history department at Cornell. And she says, there was a sense among many people that part of why wages were so low, was because workers were so desperate and businesses were taking advantage of that.
Kate Griffith:This idea of inequality of bargaining power, and what they meant is these power imbalances between the company on the one hand and the low wage worker on the other. The word they used a lot is chiseling, that the companies were Chiselers, they were chiseling wages. In other words, even companies that could have paid a bit more and did have some profit margins, were taking advantage of the fact that you had very desperate and hungry people who were willing to work for basically nothing.
Krissy Clark:So Congress decided to pass this law, the Fair Labor Standards Act. It created the federal minimum wage and overtime rules. When lawmakers are writing this law, Kate says they are very careful about how they word it, because they know plenty of companies are not going to like this law.
Kate Griffith:It’s not convenient to be regulated and to have to pay these things.
Krissy Clark:In fact, before the federal minimum wage was passed, there’d been a handful of states that had passed a minimum wage laws, but each time one was passed, some business would challenge it in court, saying the law violated their freedom of contract, that is their right to freely negotiate with their workers. And for decades, the Supreme court agreed. It struck down state minimum wage laws as unconstitutional, until a woman named Elsie Parish came on the scene. She was raising six kids, she scrubbed toilets and changed dirty sheets for a living as a chambermaid for a hotel in Washington State. One day, she discovered that was getting paid below her state’s minimum wage for women. Yeah, there was a special minimum wage for women.

Elsie sued the hotel where she worked for breaking the law. The hotel took the same position that lots of other businesses had taken before it, told Elsie, “Actually, we don’t think we need to obey that minimum wage law because we think it’s unconstitutional.” But this time, when the case reached the Supreme court in 1937, the court disagreed. They ruled in Elsie’s favor. There was this shift in perspective that came to see minimum wage laws not as violating a company’s freedom of contract, but as vital to a worker’s freedom of contract. It created a baseline and gave workers some bargaining power, so they didn’t have to say yes to just anything.

Plus, the chief justice wrote in his opinion, if workers didn’t make at least a minimum wage, it would be taxpayers who had to pick up the burden for caring for people living in poverty. That basically-
Kate Griffith:There’s just a decency wage that our democracy requires.
Krissy Clark:Once the Supreme court gave the official green light to state minimum wage laws, FDR’s administration worked with lawmakers to pass a federal minimum wage, and they made one thing very clear.
Kate Griffith:We’re not going to let the companies find loopholes, because they will.
Krissy Clark:There was a long history of companies looking for loopholes in employee protection laws. A legal scholar named Richard Carlson at South Texas College of Law, Houston, told me about one famous case from 1914. A coal mining company tried to argue that it didn’t have to pay for the injuries that a coal miner got on the job.
Richard Carslon:Their argument was, these are not our employees. These people are just independent contractors. We simply grant them access to our coal and they are their own supervisors. So their injuries are their problem, not ours. We owe them nothing.
Krissy Clark:The coal mining company lost that argument, but Kate Griffith from Cornell says, it was cases like that one that lawmakers were thinking about when they wrote the minimum wage law. In fact, she went back and read all the congressional hearings, all the debates, all the committee reports that led up to the passage of the Minimum Wage Law. And what she found was lawmakers actually making lists of all the ways companies might try to avoid paying minimum wage to their workers. She talks about it in a paper she wrote.
Kate Griffith:I think it’s in a footnote on page 568, the very bottom.
Krissy Clark:Okay, wow. You read the footnotes?
Kate Griffith:Yeah. That’s where the good stuff is. Okay, footnote 44, yeah.
Krissy Clark:Lawmakers are talking about how to quote-
Kate Griffith:“Prevent the circumvention of the act.”
Krissy Clark:And then they actually give this list of the devices they anticipate companies will try to circumvent the act. Devices like the use of subcontractors, or employees who work in their homes, or by classifying workers as independent contractors.
Kate Griffith:Or by any other means or device. This list just shows an awareness of the common ways that they thought that companies were circumventing regulation at that point, and so they were suspicious.
Krissy Clark:So, they write the law in this incredibly expansive and weird way. They declare that every employer shall pay to each of his employees a minimum wage. And that word employ that’s at the heart of the law is defined like this-
Kate Griffith:To suffer or permit to work.
Krissy Clark:To suffer or permit to work. When you employ someone, you permit them to work, or at least you suffer them to work. Suffer as in tolerate, like in the phrase, “I don’t suffer fools.”
Kate Griffith:Which is just an awkward way of talking now. But what they meant is, if a company knows work’s happening, is in a position to know it’s happening and it’s benefiting them, they’re responsible as an employer. I can’t even think of a way for congress to put it more broadly than a company that permits someone to work for it on its behalf.
Krissy Clark:Kate says, when she went back and actually read what lawmakers were thinking, how worried they were about companies looking for ways to get around the definition of employ, she thinks the definition is kind of genius because, it is so broad. It acts like a blanket. It assumes a worker is an employee who deserves minimum wage, unless the people who hired the worker can prove otherwise. But even as the minimum wage law was being written in this super broad way, there were businesses and whole industries, that were trying to get around paying minimum wage to their workers. One of the most glaring examples was something written directly into the minimum wage law, the exclusion of-
Bill Sprigs:Agricultural workers and domestic workers.
Krissy Clark:Bill Sprigs is an economics professor at Howard University. He’s also the chief economist for the AFL-CIO. He says, the reason those two job categories, agricultural workers and domestic workers like housekeepers and nannies were originally excluded from the Minimum Wage Law, goes to something ugly. In order to get the law passed, there had to be buy-in from politicians across the country, including the Southern Democrats, and they had a very particular world order they were trying to enforce, one of white supremacy.
Bill Sprigs:The signs were obvious. Literally, they would have above their water fountain, colored only, white only. The South did not want that disturbed.
Krissy Clark:As a white lawmaker from Florida put it at the time, “Having a minimum wage that applied equally to white and black people,” quote, “Just will not work in the South.” He went on to say that you can’t put black and white on the same basis and get away with it. So Northern Democrats in Congress made what’s been called A Devil’s Bargain.
Bill Sprigs:The compromise with them was, “Okay, you can’t say this only goes to white people. So the compromise is, you can exclude certain occupations. That’s okay, and we’ll live with that. So we will exclude agricultural workers, we will exclude domestic workers.”
Krissy Clark:It just so happened that workers with those jobs were disproportionately Black or Latinex, disproportionately women and poor.
Bill Sprigs:That’s basically it. So we will say agricultural workers, but in the South that means we don’t want Black people to get this. That’s what they did.
Krissy Clark:So for the first few decades, after a federal minimum wage was passed, farm workers and domestic workers were not covered by it. In a documentary from 1960 called Harvest of Shame, a TV reporter asked a woman named Eileen King, what that meant for her. She was in the middle of a field picking beans.
Reporter:Eileen, what time did you come out to the field this morning?
Eileen King:Six o’clock.
Reporter:What time will you get home?
Eileen King:About 3:30, four o’clock.
Reporter:6:00 this morning to four o’clock this afternoon.
Eileen King:That’s right.
Reporter:How much did you earn?
Eileen King:$1.
Reporter:$1?
Eileen King:That’s right, $1.
Reporter:How much will your food cost you today?
Eileen King:About $2.
Krissy Clark:But decades of civil rights activists pushed back against these exemptions. In fact, one of the demands from the organizers of the March on Washington was to get minimum wage coverage for agricultural and domestic workers.
Activist:We demand that there be an increase in the national minimum wage, so that men they live in dignity.
Krissy Clark:Eventually, it worked.
President Roose…:We have included more than 9 million new workers under a higher minimum wage.
Krissy Clark:Though even now, some farm and domestic workers still aren’t covered, and the same is true for a few other kinds of workers too. In fact, if you read through the Fair Labor Standards Act, you’ll see 34 carve-outs from minimum wage and overtime requirements. Some are broad like people employed in a bonafide professional capacity, which is why salaried employees don’t get overtime, but then there are others so specific it makes you blink and think, “Wait, did I read that right?” Like how you don’t need to be paid minimum wage or overtime if you’re employed, propagating or harvesting shellfish, or if you’re a switchboard operator for a small public telephone company. And then written right into federal law, no overtime if you work processing maple sap into syrup or sugar. And this one, which I didn’t know, motion picture theaters aren’t required to pay employees overtime. All of these employees are carved out of the law.

But even if your industry doesn’t have its own carve out, there’s another loophole companies latch on to, and it goes back to the way the law was written. Remember how it requires that almost every employer shall pay a minimum wage to each of his employees? There are some businesses who say, “Our workers are not employees.” Maybe the workers are labeled independent contractors, like what Uber has called their drivers. Maybe the workers are labeled franchisees, like what some cleaning companies call their janitors, or maybe workers are labeled trainees, like what railroad companies one’s called unpaid break men who were learning on the job. What it means is that hundreds of thousands of workers, disproportionately Black and Latinex workers, are making less than what our country has said is the bare minimum most workers should earn.
Al Letson:That was the Uncertain Hours, Krissy Clark. The baseball industry has found legal ways to pay minor league baseball players less than minimum wage. So how do they get away with this?
Marc Normandin:It was their way of saying it’s not really a job, so they shouldn’t have to treat you like an employee.
Al Letson:Inside the baseball industry’s playbook, that’s next on Reveal, from the Center for Investigative Reporting and PRX.

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From the Center for Investigative Reporting and PRX, this is Reveal. I’m Al Letson. Today, we’ve been talking about the minimum wage. Now ever since we’ve had one, companies have been looking for ways to get around it, either by carving out industries from the law or by saying their workers aren’t technically employees. We’re bringing you today’s show with our friends from the Marketplace Podcast, The Uncertain Hour. Their new season is looking at how companies legally get around providing basic employment protections to workers from janitors to baseball players.
Garrett Broshui…:My eyes were starting to open that, the way players are treated, it’s not okay.
Al Letson:In 2009, Garrett Broshuis was in his sixth year as a minor league pitcher for the San Francisco Giants and pretty fed up. It had been six years of low pay, six years of sleeping on air mattresses in rundown apartments, and six years of long team bus rides with the same movies on repeat.
Garrett Broshui…:I’ve seen Bull Durham so many times.
Al Letson:About halfway through that season, Garrett did something seemingly unremarkable, that would have huge consequences for the minor leagues. He stopped by a local borders bookstore and picked up an LSAT study guide, reading material for the bus.
Garrett Broshui…:I took the LSAT three days after I got back from my last game then, and started applying to law schools.
Al Letson:Peter Balonon-Rosen, a producer for the Uncertain Hour Podcast, picks up Garrett’s story.
Peter Balonon-R…:In 2014, a few months after graduating law school, Garrett did something unprecedented. As a lawyer, he filed a class action lawsuit on behalf of former minor league players, thousands of guys like him who had passed through the minors, who said they weren’t paid for spring training and fall instructional leagues, and that they made no overtime during the regular season despite working 50-70 hours per week.
Garrett Broshui…:Just trying to apply your basic wage and hour laws, the same laws that Walmart and McDonald’s comply with, to minor league baseball players.
Peter Balonon-R…:The lawsuit, which still hasn’t gone to trial because of appeals, said that MLB and its teams violated the Fair Labor Standards Act, which guarantees minimum wage and overtime to employees. But in the years following the filing of the lawsuit, MLB said, “There’s a reason minor leaguers shouldn’t get that.” Just like so many businesses before them, they said minor league players aren’t actually employees.
Garrett Broshui…:They tried saying that they’re trainees instead of employees, and shouldn’t even be subject to your minimum wage laws.
Peter Balonon-R…:In public statements, MLB said, quote, “Minor league baseball is not a career, but a short term, seasonal apprenticeship.” Marc Normandin, a freelance journalist who writes a newsletter about sports and labor, he watched this all play out.
Marc Normandin:It was their way of saying that it’s not really a job, so they shouldn’t have to treat you like an employee.
Peter Balonon-R…:Whoa. So they’re not saying these guys aren’t my employees, they’re saying these guys are not even employees?
Marc Normandin:Yeah. So when anyone would use an argument of like, well, even someone in the service industry or fast food industry is paid better and treated better, they’d be like, “Ah yes, but that’s a job and could be a career, this is not.”
Peter Balonon-R…:Well, that’s so wild, right?
Marc Normandin:Yeah.
Peter Balonon-R…:If you want to get around workplace protections, what’s a better way to do that than just to say, “Wait a minute, this isn’t even a job. This isn’t even employment.”
Marc Normandin:There’s no workplace protections if you don’t have a workplace, essentially.
Peter Balonon-R…:Now, let’s think about some numbers. Professional baseball players spend on average four years in the minors. That’s a long time to not be an employee. And only about one in six will ever get called up to the majors. Now, the Supreme court has ruled that some trainees can be unpaid, but their training has to meet specific requirements like, that the trainee benefits more from the training than the business benefits from their work. It’s why we can have unpaid internships.

So when a preliminary hearing for Garrett’s class action lawsuit of former minor league players, a lawyer for MLB went to that playbook. The lawyer said, quote, “Our position is that none of them are employees. That they fall squarely within the ambit of a trainee.” The lawyer said, since Spanish speaking players can take English classes, and classes are done to teach players how to open a checking account, that this is training not just for baseball, but for life. And the lawyer said to the extent that, any employment relationship may exist, it’d have to be determined on a case by case basis, and that should prevent Garrett’s class action case for moving forward. The courts ultimately rejected that argument.

So Garrett Broshuis says, the baseball industry went looking for another reason to not pay minimum wage or overtime, one that’d be much more bulletproof. They set out to rewrite federal law.
Garrett Broshui…:Rather than doing the right thing and increasing salaries, they went to Congress and spent their money on lobbyists instead.
Peter Balonon-R…:The MLB, team owners and minor league baseball bigwigs launched this coordinated effort in direct response to Garrett’s class action lawsuit. If you go through MLB’s public lobbying disclosures, which I did, it shows. The first half of the 2010s, MLB spent an average $430,000 a year on lobbying, standard for an organization their size. But then in 2016, as this lawsuit’s going through the pipeline, that spending tripled to $1.3 million in a single year, the same amount in 2017 and 2018. Those three years alone, MLB paid lobbyists almost $4 million total, a $4 million bet they could change the law. In March 2018, Garrett’s class action lawsuit was limping along, bogged down by appeals. One Sunday evening, his phone rang.
Garrett Broshui…:I got a call from a Washington Post reporter asking me, “What can you tell me about the Save America’s Pastime Act?” I said, “Well, let me call you back.”
Peter Balonon-R…:Garrett knew about the Save America’s Pastime Act. It was this piece of legislation introduced two years earlier when MLB had started their lobbying effort. It had died in the house.
Garrett Broshui…:There was an exemption for minor league baseball players from the Fair Labor Standards Act, our country’s basic minimum wage law. I’d hope that it was dead. How it came back to life was, it was tucked onto page 1,967 of an omnibus spending bill that had to pass Congress four days later, in order to keep the government from shutting down.
Peter Balonon-R…:Buried almost 2000 pages into this huge spending bill, was a provision that specifically carved out baseball players from minimum wage and overtime laws. It said, “If players were paid the equivalent of 40 hours a week at the federal minimum wage during the season, they weren’t entitled to any other compensation. No overtime and no pay during spring training or the off season,” quote, “irrespective of the number of hours the employee devotes to baseball related activities.” So, as long as MLB paid minor league players $290 a week for five months, Garrett says the Save America’s Pastime Act said players had no right to overtime or any other pay during the year.
Garrett Broshui…:There’s nothing about America’s Pastime that was being saved by this.
Peter Balonon-R…:I wanted to know why. Why did anyone think America’s Pastime needed saving? I reached out to MLB and politicians involved with the spending legislation, none agreed to be in the story. So, I was shocked when this guy called me back.
Stan Brand:Our main argument to Congress was, you need to pass this because it goes to our survival.
Peter Balonon-R…:Stan Brand was one of the chief architects of the lobbying effort, and served as vice president of minor league baseball for 29 years. I’ve got to explain what that means. That’s the governing body that oversees the minor leagues and assists with team schedules, merch and ticket sales. It’s a separate organization from MLB, but still major and minor league baseball often have similar interests, like keeping minor league players cheap and heading off this class action lawsuit. Remember, MLB and its teams employ minor league players.
Stan Brand:There was a concern about, well what is time at work? Is extra batting practice work? Is sitting on the bus to and from the game work? Is being in the locker room, waiting for the game to start work? If that’s time and a half, well that could be a lot of money.
Peter Balonon-R…:Some might argue that any time you’re doing for the company, yeah, that’s time you should be getting paid for.
Stan Brand:That was what was the dispute in the lawsuit.
Peter Balonon-R…:Here’s what made Stan really nervous. If players were paid more, they’d be more expensive. So to keep costs down, MLB might not supply players to as many teams, which could mean towns all over the country would no longer have affiliated baseball. To Stan, minor league teams were special. They provided jobs for people selling cotton candy and tickets, and also pride, a home team to root for. But Stan had a solution to keep things business as usual.
Garrett Broshui…:The Save America’s Pastime Act.
Peter Balonon-R…:If this is a business model that relies on employees who aren’t subject to minimum wage and overtime laws, is this a good model?
Stan Brand:Well, it’s the model that existed for 120 years.
Peter Balonon-R…:But just because this has been around for 120 years, does that mean it’s good? Is this the right thing to-
Stan Brand:Well look, it was good from my perspective in that, it fostered survival of these teams and communities. It fostered the survival of the magic of the community-centered minor league teams. So to that degree, it was a positive to my way of thinking.
Peter Balonon-R…:So Stan along with the MLB, major and minor league team owners and lobbyists, appealed directly to members of Congress and gave lawmakers money.
Stan Brand:To really engage the legislature, you needed to be active in the campaign finance area.
Garrett Broshui…:A person’s ability to gain basic labor and employment protections shouldn’t be dependent on their industry’s ability to lobby Congress for special treatment.
Peter Balonon-R…:Garrett Broshuis, the player turned attorney again.
Garrett Broshui…:It’s somewhat despicable.
Peter Balonon-R…:On March 23rd 2018, the whole government spending bill, including the Save America’s Pastime Act was passed to keep the government open. Unlike standalone legislation, provisions included in big spending bills aren’t sponsored by specific politicians. So, it’s hard to tell who put it in. I did ask Mitch McConnell’s office, but they never got back to me. So MLB was given a federal law specifically saying, players are not entitled to overtime or any pay outside the regular season. Marc Normandin the journalist says, that makes them pretty untouchable.
Marc Normandin:They got Congress to carve out an exception for them, to be terrible employers.
Peter Balonon-R…:You can just do that? You can just write laws like that?
Marc Normandin:Yeah. I mean, if you’ve got a few million dollars and know who to give it to, then yeah.
Peter Balonon-R…:So carving minor league players out of minimum wage and overtime requirements was a victory for Stan Brand, the minor league baseball VP and lobbyist. Still, I wondered if he had anything to say to those players. I’ve spoken to a bunch of guys, guys talked about living on air mattresses, who can barely afford Chipotle during their spring training. What message do you have for them, for why they should get carved out of these protections that other businesses are held to?
Stan Brand:Look, I don’t wish these people sleep on air mattresses. They’re seeking to qualify themselves as the most elite baseball players in the world, any more than a violinist at Julliard hopes to get onto the New York Symphony someday. That’s the nature of the career they’re pursuing. It’s a tryout, it’s an apprenticeship.
Peter Balonon-R…:Well, just because you’re an apprentice or a trainee, should you not get minimum wage or overtime?
Stan Brand:Well, I don’t know they weren’t getting minimum wage. They weren’t getting paid for those extra functions that I mentioned.
Peter Balonon-R…:Well, it’s not just sitting on the bus, it’s also spring training, other sorts of trainings during the off season.
Stan Brand:Yes.
Peter Balonon-R…:Some might look at that and say, “Hey, this is unpaid work.”
Stan Brand:That was their claim.
Peter Balonon-R…:Do you see spring training as unpaid work?
Stan Brand:Yeah, mostly it was. Look, I was not an advocate for not paying the minor league players a living wage. I was simply explaining the reality of the current relationship and its impact on the industry.
Peter Balonon-R…:I was honestly shocked to hear him admit, “Yeah, this is unpaid work, but if we didn’t do that, our whole industry would fall apart.” Garrett Broshuis, the player turned attorney, he doesn’t buy that.
Garrett Broshui…:It’s a slap in the face to every minor league player out there. We aren’t asking for huge sums of money here. A full-time minimum wage worker in this country makes around $15,000 a year.
Peter Balonon-R…:A fraction of team profits. In 2019, if MLB teams had paid minor leaguers 15K a year, that would have cost teams about $2 million each. Not much for them, just 4% of the average $50 million a team made in operating profits that year, a figure that comes from Forbes, which tracks MLB profits. Players like Mitch Horacek, the pitcher, are still trying to wrap their heads around the Save America’s Pastime Act.
Mitch Horacek:It’s straight out of 1984. It is doublespeak. I think it’s gross. I think major league baseball, they’re just spending millions of dollars to craft the rules to suppress wages on employees that make the least.
Peter Balonon-R…:But there’s another wrinkle in all of this, an incentive for teams to keep costs down.
Marc Normandin:You have these owners, these primary owners, but they also sell tons of little, like minority stakes in the team. So any money you don’t spend on players is money that can go to these investors.
Peter Balonon-R…:Marc Normandin the journalist says, in the early aughts, the early 2000s, baseball started becoming this big investment opportunity. All these investors bought into teams, franchise values exploded, which then attracted more investors with everyone expecting a return on investment. So he says, professional baseball became even more motivated to keep costs down and preserve their business practices. Can we draw a direct line from this change that happened in the early aughts and this mindset, to something like the Save America’s Pastime Act?
Marc Normandin:Yeah, yeah. I think it’s from that same mindset that forces you to look for every possible efficiency and loophole to save money.
Peter Balonon-R…:Baseball’s a sport that’s all about tracking analytics, a guy’s batting average, pitch velocity, RBIs, than thinking about what could be better. It doesn’t seem too far off to take that same mindset to the industry’s whole business model. Stan Brand from minor league baseball says, “Yeah, that’s exactly what’s happening.”
Stan Brand:Old baseball men used to run the game and now, hedge fund investors and Yale economists run the player development side of the game, analytics. The entire focus of the game has changed, and the entire focus of the business has changed.
Peter Balonon-R…:Currently, there are drastic changes happening to the minors. The 2020 season was canceled due to the pandemic, and despite the Save America’s Pastime Act, which Stan lobbied for under the impression it would save teams, MLB declared they were going to reshape minor league baseball, draft fewer players, and cut 40 teams.
Stan Brand:To me, that’s a betrayal of our going to Capitol Hill and seeking this amendment.
Peter Balonon-R…:You feel betrayed?
Stan Brand:Absolutely. Lo and behold, the Save America’s Pastime Act passes, and the first thing out of the box is a contraction plan.
Peter Balonon-R…:MLB decided, rather than dealing with a governing body that represents all of the minors, that they’d signed contracts directly with minor league teams one by one, giving MLB full control over minor league licensing, ticket sales, streaming rights, all the things Stan’s office used to do. A few months after we first spoke, he resigned.
Stan Brand:There was really nothing left for me to do.
Peter Balonon-R…:When minor league baseball returns, there’ll be fewer teams and a shorter schedule for many. Remaining players will get a raise, but Marc Normandin, the writer, says it’s not that meaningful.
Marc Normandin:So it’s about a 50% raise, but it’s just a little bit more or nothing.
Peter Balonon-R…:All players now make the equivalent of minimum wage during the season. Still, no overtime, no pay during spring training, and many making annual wages below the poverty line. As far as Garrett and the class action lawsuit for former minor league players, Garrett hopes to argue MLB also violated state minimum wage and overtime laws, even if current players carved out from federal ones.
Garrett Broshui…:MLB has now decided to pay exorbitant amounts to lobbyists and to attorneys, rather than treating these players as employees, as they are called on the face of their contract.
Peter Balonon-R…:Baseball’s far from alone in crafting laws to legitimize their business practices. Recently, Uber, Lyft, and other gig companies launched the most expensive ballot measure in US history, to convince California voters app-based drivers shouldn’t be covered by state laws that would make them employees rather than independent contractors. Just like baseball, it worked and could send the message to big business, just do what you’ve always done. Don’t like the laws? Write your own.
Al Letson:That was Peter Balonon-Rosen of the Marketplace Podcast, the Uncertain Hour. Thanks to the whole team at the Uncertain Hour for bringing us today’s show. Their current season is all about how American jobs got temped, gigged, outsourced, freelanced and contracted out, and how that’s changing work in America. Be sure to check it out. That’s the Uncertain Hour from Marketplace. Our producers for this week’s show are Krissy Clark, Peter Balonon-Rosen, Caitlin Esch, and Chris Julin from the Uncertain Hour, Catherine Winter edited the show.

We want to thank the whole team at the Uncertain Hour, including Muna Danish, Daniel Martinez, Marque Green and Sam Anderson, media producer, Robin Edgar, and their digital team of Tony Wagner and Erica Phillips, and the executive director of on-demand at Marketplace Sitara Nieves. Special thanks to Reveal’s Catherine Makowski, Victoria Barenetsky is our general counsel, our production manager is Amy Mostafa, sound designed by the dynamic duo, Jay breezy, Mr. Jim Briggs and Fernando Arruda. They had help this week from Brett Simpson and Ameeta Ganatra. Our digital producer is Sarah Merck, our CEO is Christa Scharfenberg, Sumi Aggarwal is our interim editor in chief, and our executive producer is Kevin Sullivan. Our theme music is by Camerado, Lightning.

Support for Reveal is provided by The Reva and David Logan Foundation, The John D. and Catherine T. MacArthur Foundation, The Jonathan Logan Family Foundation, The Ford Foundation, The Heising-Simons Foundation, The Democracy Fund and The Inasmuch Foundation. Reveal is a co-production of the Center for Investigative Reporting and PRX. I’m Al Letson, and remember, there is always more to the story.
Advertiser:From PRX.

Katharine Mieszkowski

Katharine Mieszkowski is a senior reporter and producer for Reveal. She's also been a senior writer for Salon and Fast Company. Her work has appeared in The New York Times, Rolling Stone, Mother Jones, Slate and on NPR's "All Things Considered."

Her coverage has won national awards, including the Alfred I. duPont-Columbia University Award two years in a row, an Online News Association Award, a Webby Award and a Society of Environmental Journalists Award. Mieszkowski has a bachelor's degree from Yale University. She is based in Reveal's Emeryville, California, office.

Amy Mostafa is the production manager for Reveal. She is pursuing a master's degree in journalism with a focus on audio and data at the University of California, Berkeley, where she is a Dean’s Merit Fellow and an Islamic Scholarship Fund scholar. She has reported on science, health and the environment in Anchorage for Alaska Public Media and on city government in Berkeley and San Francisco for KQED. Her work also has appeared on KALW and KALX.  Mostafa holds a bachelor's degree in English literature and public policy. She is based in Reveal’s Emeryville, California, office. 

Jim Briggs III is the senior sound designer, engineer and composer for Reveal. He supervises post-production and composes original music for the public radio show and podcast. He also leads Reveal's efforts in composition for data sonification and live performances.

Prior to joining Reveal in 2014, Briggs mixed and recorded for clients such as WNYC Studios, NPR, the CBC and American Public Media. Credits include “Marketplace,” “Selected Shorts,” “Death, Sex & Money,” “The Longest Shortest Time,” NPR’s “Ask Me Another,” “Radiolab,” “Freakonomics Radio” and “Soundcheck.” He also was the sound re-recording mixer and sound editor for several PBS television documentaries, including “American Experience: Walt Whitman,” the 2012 Tea Party documentary "Town Hall" and “The Supreme Court” miniseries. His music credits include albums by R.E.M., Paul Simon and Kelly Clarkson.

Briggs' work with Reveal has been recognized with an Emmy Award (2016) and two Alfred I. duPont-Columbia University Awards (2018, 2019). Previously, he was part of the team that won the Dart Award for Excellence in Coverage of Trauma for its work on WNYC’s hourlong documentary special “Living 9/11.” He has taught sound, radio and music production at The New School and Eugene Lang College and has a master's degree in media studies from The New School. Briggs is based in Reveal's Emeryville, California, office.

Fernando Arruda

Fernando Arruda is the sound designer, engineer and composer for Reveal. A composer and multi-instrumentalist, he contributes to the scoring, recording, editing and mixing of the weekly public radio show and podcast. Prior to joining Reveal, Arruda toured as an international DJ and taught music technology at Dubspot and ESRA International Film School. He co-founded a film scoring boutique called Manhattan Composers Collective and worked at Antfood, a creative audio studio geared toward media and ad spots. Arruda worked with clients such as Marvel and Samsung and ad agencies such as Framestore, Trollbäck + Company, Buck and Vice. Arruda releases experimental music under the alias FJAZZ and has performed with many jazz, classical and pop ensembles such as Krychek, Dark Inc., the New York Arabic Orchestra and Art&Sax. His credits in the podcast and radio world include NPR’s “51 percent,” WNYC’s “Bad Feminist Happy Hour” and its live broadcast of Orson Welles’ “The Hitchhiker.” Arruda has scored extensively for theatrical, orchestral and chamber music formats, some of which have premiered worldwide. He holds a master’s degree in film scoring and composition from NYU Steinhardt. Arruda is based in Reveal's Emeryville, California, office.

Brett Simpson (she/her) is an assistant producer for Reveal. She is pursuing a master's degree at the UC Berkeley Graduate School of Journalism, where she focuses on audio, print and investigative reporting. She has received fellowships from the Council for the Advancement of Science Writing, the National Press Club, the White House Correspondents’ Association and the UC Berkeley Human Rights Center. She is also the graduate researcher at UC Berkeley's Investigative Reporting Program. Most recently, Simpson reported breaking news for the San Francisco Chronicle and covered the coronavirus outbreak in the San Francisco Bay Area for The New York Times. She received a bachelor's degree in English at Princeton University, where she twice won the Ferris Prize for Outstanding Undergraduate Projects in Journalism. Simpson is based in Reveal’s Emeryville, California, office.

Sarah Mirk (she/her) is a digital engagement producer for Reveal. Since 2017, she has worked as an editor at The Nib, an online daily comics publication focused on political cartoons, graphic journalism, essays and memoirs about current affairs. She works with artists to create nonfiction comics on a variety of complex topics, from personal narratives about queer identities to examinations of overlooked history. Before that, Mirk was the online editor of national feminist media outlet Bitch, a podcast host and a local news reporter. She is also the author of several books, including “Year of Zines,” a collection of 100 handmade zines, and “Guantanamo Voices,” a collection of illustrated oral histories of the world’s most infamous prison. Mirk is based in Portland, Oregon.

Kevin Sullivan is the executive producer of Reveal’s public radio show and podcast. He joined Reveal from the daily news magazine show “Here & Now,” where he was senior managing editor. There, he helped lead the expansion of the show as part of a unique partnership between NPR and WBUR. Prior to radio, Sullivan worked as a documentary film producer. That work took him around the world, with stories ranging from reconciliation in Northern Ireland to the refugee crisis during the war in Kosovo.

Following the 9/11 terrorist attacks, Sullivan launched an investigative unit for CBS in Baltimore, where he spearheaded investigations on bioterrorism and the U.S. government’s ability to respond to future threats. He also dug into local issues. His exposé of local judges found widespread lax sentencing of repeat-offender drunken drivers. Other investigations included sexual abuse by Roman Catholic priests, and doctors who sold OxyContin for cash. Sullivan has won multiple journalism awards, including several Edward R. Murrow awards, a Third Coast / Richard H. Driehaus Foundation Competition award and an Emmy. He has an MBA from Boston University.

Sullivan is based in Reveal's Emeryville, California, office.

Al Letson is a playwright, performer, screenwriter, journalist, and the host of Reveal. Soul-stirring, interdisciplinary work has garnered Letson national recognition and devoted fans.