In long-running litigation over alleged wage violations, a federal district court ruled on a summary judgment motion that a class of Arizona-based minor league baseball players are year-round, joint employees of Major League Baseball and its clubs. The case dates to 2014, when the players sued alleging violations of the Fair Labor Standards Act and state labor laws, claiming they were paid as little as $1,100 per month during a five-month season and little or nothing for essentially mandatory offseason activity. The sprawling dispute incorporates both an FLSA minimum wage collective action and four classes of players whose baseball activity occurred in Florida, California, or Arizona. In the recent ruling, Magistrate Judge Joseph C. Spero found that MLB violated Arizona minimum wage laws as well as California wage statement laws. The players’ claims under the FLSA, meanwhile, were pared to conduct occurring before March 23, 2018, when the Save America’s Pastime Act took effect and amended the FLSA to exempt baseball players from the law’s minimum wage and overtime requirements.
In a news conference with U.S. Representatives Hank Johnson (D-GA) and Hakeem Jeffries (D-NY) held by the American Association for Justice, former National Football League head coach, Brian Flores, who is suing the NFL and various teams for racial discrimination in hiring, spoke out in support of the Forced Arbitration Injustice Repeal Act, a proposed bill that would make pre-dispute arbitration agreements unenforceable in employment, consumer, antitrust, and civil rights disputes. About two weeks ago, Flores urged the NFL to reject a request made by the Miami Dolphins for the league to compel arbitration of Flores’ racial discrimination claims. During the conference, Flores defended the legislation, saying, “Forced arbitration really is the crux of why all forms of discrimination are so prevalent in this country.” Forced arbitration, he said, “allows an employer to hide behind secret and confidential proceedings. The employer avoids scrutiny and avoids public accountability.” The FAIR Act was reintroduced after passing in the House but failing in the Senate during the last congress.
Meanwhile, the Rooney Rule, the diversity initiative inevitably tied up with the Flores litigation, is coming under increasing scrutiny. The NFL introduced the Rooney Rule in 2003 in order to promote more inclusive hiring—the rule now requires teams to interview at least two minority candidates from outside their organizations or from a league-approved list for any head coach opening. After its introduction in the NFL, the rule found adherents across corporate industry, with similar iterations having now been adopted by over 100 public companies. In the NFL, the Rooney Rule has been criticized for merely incentivizing token interviews and for generally failing to increase the number of Black head coaches. In the corporate world, workplace diversity data suggests that the copycat hiring methods have not succeeded. A 2020 analysis from the Stanford Graduate School of Business of the Fortune 100 companies found that only 16% of the C-suite positions were held by racially diverse individuals. The criticism of Rooney Rule analogues in corporate America is similar to that in football America. As Alina Polonskaia, Global Leader of the DE&I Consulting Practice at executive recruiter Korn Ferry puts it, “It’s kind of really like checking the box to say ‘We have the Rooney Rule, look how progressive we are.’” For a diversity slate initiative to actually be successful in boosting racial diversity in hiring, Polonskaia argues that at least 30% of the candidates should be racial minorities. The recommendation is based on evidence that suggests that changing the status quo (i.e., the demographic makeup of the hiring slate) actually changes the perception of the hiring manager and combats unconscious bias.
In an innovative spin on the fight to win compensation for college athletes, the National College Players Association has filed a civil rights complaint with the U.S. Department of Educations’ Office for Civil Rights, asserting that Division I colleges are violating Black students’ civil rights by collusively prohibiting compensation to student-athletes. The NCPA is a “nonprofit advocacy organization made up of current and former college athletes and has been leading the college athletes’ rights movement since 2001.” The theory advanced by the complaint is that the limit on student-athlete compensation has a disparate impact on Black college students because Black students disproportionately comprise the athletes in the sports that generate the most revenue, i.e., football and men’s and women’s basketball. In a statement, NCPA executive director Ramogi Huma explained, “This multibillion college sports enterprise imposes discriminatory practices that disproportionately harms Black athletes, while predominantly white coaches and administrators make millions of dollars…All college athletes should have the opportunity to receive fair market pay. This can happen without cutting any sports. Colleges would just have to spend a bit less on coaches’ salaries and luxury facilities.” The NCPA argues that its position is supported by NCAA v. Alston, in which Justice Brett Kavanaugh suggested that the NCAA and member schools suppress the pay of student-athletes while those athletes who generate the revenues, “many of whom are African American and from lower-income backgrounds, end up with little or nothing.”