Major League Baseball’s Antitrust Exemption Once Again Faces Scrutiny On Capitol Hill

It was the oddest of odd couples on Capitol Hill in late 2001.

There was Bud Selig, then baseball’s commissioner, being sworn in next to Jesse Ventura, the former professional wrestler and Hollywood actor who was Minnesota’s governor at the time. Both men were in Washington to testify before the House Judiciary Committee on the issue of MLB’s longstanding antitrust exemption.

But while Selig cried poverty then, and said that baseball’s “financial losses and overall economic stability are even bleaker now than they were in the summer of 2000,” he found no pity among the committee members and instead was treated to a blistering verbal tirade.

“I am here today to tell you, Mr. Selig, that baseball’s antitrust exemption should be repealed,” the late Michigan Democrat, John Conyers Jr., said that day, according to a New York Daily News story. “The blame for this repeal will not lie with the players, the fans, or Congress. It will lie with Major League Baseball, which by its actions has tarnished our great national pastime and in effect, lost the right to its own exemption.”

But over 20 years after that hearing and all the buzz then that baseball would finally lose some or all of its powerful federal protection, MLB’s antitrust exemption is alive and well in 2022. MLB is the only one of the four North American professional sports leagues that enjoys such protection.

In the past six months, however, there have been signs that MLB may be in for another fight to keep its century-old federal shield.

The Senate Judiciary Committee sent a letter to an advocacy group for minor league players on June 28 asking the executive director for information on how MLB’s antitrust exemption impacts the minor league team operations and labor marketplace.

Earlier this month, Jonathan Kanter, the Assistant Attorney General for the Department of Justice’s Antitrust Division, signed a request which asked a federal court to limit baseball’s antitrust exemption, according to multiple reports. The request was made on behalf of three former minor league teams who sued MLB after they were casualties of a 2020 contraction.

And in March, Sen. Bernie Sanders of Vermont vowed to remove the exemption once and for all. “We must prevent the greed of baseball’s oligarchs from destroying the game,” Sanders said in a March 10 press release. “The best way to do that is to end MLB’s antitrust exemption and I will be introducing legislation to do just that.”

Tom Davis, the former chairman of the House Committee on Oversight and Government Reform, said if anyone decides to take on MLB — particularly going after its antitrust exemption — the better strategy might be through the court system.

“They’re not going to be able to resolve it legislatively,” Davis said, referring to the former minor league teams suing MLB. “They’re going to try to find a favorable forum for it. It’s a long haul. I can understand the frustration. Towns and cities lose a lot of character, and it’s a quality of life issue for a lot of these people. But I don’t think they are going to get any legislative changes, so you go to court.”

Davis presided over the 2005 congressional hearings on steroids and baseball, when Mark McGwire famously testified that he was not there “to talk about the past.” The hearings sparked MLB to strengthen its drug-testing policy after Congress threatened to intervene.

“Major League Baseball is an incredibly popular sport. Doesn’t mean there aren’t things that are wrong,” said Davis, now a partner at Holland & Knight. “But changing that legislatively, going up against MLB’s lobbyists — look, you need 60 votes in the Senate. That’s a high hurdle.”

Fay Vincent said that during his and the late Bart Giamatti’s tenures as baseball commissioner, both men constantly faced threats from Congress about the removal of the exemption. And every time, Vincent said, nothing ever happened.

“Congress has never understood where the pressure points of baseball are,” said Vincent. “The central reality of the antitrust immunity is the ability of (MLB) owners to come together and make arrangements at their business that would otherwise be a violation of price-fixing or acting as an oligarchy.

“Antitrust immunity lives on.”