Aug
17

“Reverse” National Origin Discrimination In The MLB First-Year Player Draft

A good way of getting my attention in an email is by starting out by saying that you are an avid reader of Sports Agent Blog.  Dan Hauptman, you are a smart man.  But truthfully, the 3L at Loyola Law School deserves credit for being smart based on recently being published in the Loyola of Los Angeles Entertainment Law Review Comment after writing an article about the “reverse” national origin discrimination inherent in the annual Major League Baseball First-Year Player Draft.

The article is titled, The Need for a Worldwide Draft to Level the Playing Field and Strike Out the National Origin Discrimination in Major League Baseball, and here is the abstract:

Under current Major League Baseball rules, if an amateur player is a resident of the United States, Canada, Puerto Rico or other U.S. territory, he can sign with a major league team only after being selected by the team in the annual First-Year Player Draft (or sign with any team after not being selected in a draft in which the player is eligible). However, all international players who are residents of countries other than those listed above are not eligible for the draft and are free to negotiate and sign with any team when they reach the age of sixteen or seventeen years old, depending on the player’s date of birth.

When applying federal (Title VII) and state national origin discrimination laws to the baseball drafting system, it is evident that all draft-eligible U.S. baseball players (as well as residents of Canada and U.S. territories) could successfully state a claim of “reverse” national origin discrimination inherent in the draft. Furthermore, the national origin discrimination claim would not be preempted by national labor law that encourages collective bargaining in sports and other industries. There have been forty-five years of baseball entry drafts in which U.S. amateurs have been treated worse than foreign players, and there would be no need for discrimination litigation if Major League Baseball were to institute a worldwide draft with uniform drafting rules around the globe.

Reading Hauptman’s piece today makes quite a lot of sense, as yesterday was the last day that players drafted in the 2010 First-Year Player Draft had an opportunity to sign with the teams that selected them.  If they failed to sign, it was off to college or a return to college for at least one more year.  Players outside of the United States, Canada, and Puerto Rico don’t have to worry about that process, though.

There has already been a lot of discussion about a worldwide draft.  In 1985, the First-Year Player Draft experimented with including players from the Dominican Republic.  In 1986, MLB was back to excluding players from the D.R.  Interestingly, Puerto Ricans were not considered part of the draft until four years later.  Unlike their Dominican counterparts, Puerto Ricans have never been able to return to their one-time exclusion from the draft.  Many highly influential people in Puerto Rico continue to complain about the country’s status for draft purposes up to this day.

Meanwhile, teams continue to invest in their Dominican academies.  Hauptman’s article states that until November 2009, the only team without a Dominican academy was the Milwaukee Brewers.  Now, all teams have a presence, some stronger than others.

It has never gained much publicity, but back in 2002, MLB and the MLB Players Association agreed to the concept of a worldwide draft.  A memorandum stating as such is attached to the 2003-2006 Collective Bargaining Agreement.  So why the inactivity?  We are now in 2010.  Do the parties need more time?  In 2008, Bud Selig stated that management had become interested in rekindling discussions about a worldwide draft.  Rob Manfred, the Executive Vice President of Labor Relations, said that the discussion would likely have to wait until 2011.  Perhaps this change will come about in the near future.

But what if there is no change?  That is the main course of what Hauptman discusses in his article.  He focuses on Bryce Harper’s potential causes of action, but really it could be any American player selected in the First-Year Player Draft who could decide to challenge the structure of the draft.  At the most basic level, the player would have to prove that Major League Baseball unfairly discriminates against prospective employees (draft-eligible players) based on the national original of the class of players (American players).  Hauptman looks at various cases that involve “reverse” national origin discrimination to conclude that a drafted player would have a strong chance of prevailing in a case against the MLB.  The big question is would the battle be worth it to the player?

There could be a Title VII claim, since all employers with at least fifteen employees are regulated by that section of the Civil Rights Act of 1964.  A player might argue that his recruitment and privileges of employeement are affected by the MLB’s stance on the draft.  A player might also go the state law employment discrimination route, but that claim has a chance of being preempted by section 301 of the Labor Management Relations Act (LRMA) if the claim hinges on a court’s interpretation of the MLB Collective Bargaining Agreement.

Want to dig into the details?  The full article is below.