Wyckoff v. Office of the Commissioner - Motion to Dismiss Reply

7/21/2019 Wyckoff v. Office of the Commissioner - Motion to Dismiss Reply

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

JORDAN WYCKOFF, Individually and onBehalf of All Those Similarly Situated,

Plaintiff,

v.

OFFICE OF THE COMMISSIONER OFBASEBALL, an unincorporated associationdoing business as MAJOR LEAGUEBASEBALL; ALLAN H. SELIG; ROBERTD. MANFRED, JR.; KANSAS CITYROYALS BASEBALL CORP.; MIAMIMARLINS, L.P.; SAN FRANCISCOBASEBALL ASSOCIATES LLC; BOSTON

RED SOX BASEBALL CLUB L.P.;ANGELS BASEBALL LP; CHICAGOWHITE SOX LTD.; ST. LOUISCARDINALS, LLC; COLORADO ROCKIESBASEBALL CLUB, LTD.; THE BASEBALLCLUB OF SEATTLE, LLLP; THECINCINNATI REDS, LLC; HOUSTONBASEBALL PARTNERS LLC; ATHLETICSINVESTMENT GROUP, LLC; ROGERSBLUE JAYS BASEBALL PARTNERSHIP;CLEVELAND INDIANS BASEBALL CO.,L.P.; CLEVELAND INDIANS BASEBALLCO., INC.; PADRES L.P.; SAN DIEGO

PADRES BASEBALL CLUB, L.P.;MINNESOTA TWINS, LLC;WASHINGTON NATIONALS BASEBALLCLUB, LLC; DETROIT TIGERS, INC.; LOSANGELES DODGERS LLC; LOS ANGELESDODGERS HOLDING COMPANY LLC;STERLING METS L.P.; ATLANTA NATIONAL LEAGUE BASEBALL CLUB,INC.; AZPB L.P.; BALTIMORE ORIOLES,INC.; BALTIMORE ORIOLES, L.P.; THEPHILLIES; PITTSBURGH ASSOCIATES,L.P.; NEW YORK YANKEES P’SHIP;TAMPA BAY RAYS BASEBALL LTD.;

RANGERS BASEBALL EXPRESS, LLC;RANGERS BASEBALL, LLC; CHICAGOCUBS BASEBALL CLUB, LLC;MILWAUKEE BREWERS BASEBALLCLUB, INC.; MILWAUKEE BREWERSBASEBALL CLUB, L.P.,

Defendants.

Case No. 1:15-cv-05186-PGG1:15-cv-05186-

PGG

Hon. Paul G. Gardephe

CLASS ACTION

DEFENDANTS’ REPLY MEMORANDUMIN SUPPORT OF MOTION TO DISMISSUNDER FEDERAL RULES OF CIVILPROCEDURE 12(b)(1) AND 12(b)(6)

Case 1:15-cv-05186-PGG Document 119 Filed 12/23/15 of 15



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TABLE OF CONTENTS

Page

I. INTRODUCTION ...............................................................................................................1

II.

ARGUMENT .......................................................................................................................1

A. Plaintiffs ask this Court to reject authoritative Supreme Court and Circuit

Court decisions and instead adopt an unworkable “central enough” test. ...............1

1. The Flood Court did not silently overrule decades of precedent. ................1

2. Congress legislated that it would not “create” or “imply” the same

cause of action that Plaintiffs bring here. .....................................................3

3. The “courts and observers” have not “consistently narrowed” the

scope of the exemption, nor could they under binding precedent. ..............4

4. Plaintiffs’ proposed “central enough” test is contrary to law and

unworkable. ..................................................................................................6

B. No matter what test is applied, scouts and the anti-tampering rule fallwithin the scope of the exemption. ..........................................................................8

C. Wyckoff’s FLSA claims against all Defendant Clubs except the KansasCity Royals should be dismissed with prejudice. ..................................................10

III. CONCLUSION ..................................................................................................................10




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TABLE OF AUTHORITIES

Page(s)

Federal Cases

City of San José v. Office of the Comm’r of Baseball 776 F.3d 686 (9th Cir.), cert. denied , 136 S. Ct. 36 (2015) ...........................................2, 3, 4, 10

Flood v. Kuhn 407 U.S. 258 (1972) ........................................................................................................... passim

Garber v. Office of the Comm’r. of Baseball (No. 12-cv-3704 (SAS)), decided sub nom. Laumann v. Nat’l Hockey League,

56 F. Supp. 3d 280 (S.D.N.Y. 2014) ...........................................................................................8

Henderson Broadcasting Corp. v. Houston Sports Ass’n

541 F. Supp. 263 (S.D. Tex. 1982) ..........................................................................................7, 8

L.A. Mem’l Coliseum Comm’n v. Nat’l Football League 726 F.2d 1381 (9th Cir. 1984) .....................................................................................................6

Major League Baseball v. Crist 331 F.3d 1177 (11th Cir. 2003) ...................................................................................................5

Miranda v. Selig

No. 14-cv-05349-HSG, 2015 WL 5357854 (N.D. Cal. Sept. 14, 2015) .....................................5

Morsani v. Major League Baseball

79 F. Supp. 2d 1331 (M.D. Fla. 1999) .........................................................................................4

Nat’l Basketball Ass’n v. SDC Basketball Club, Inc.

815 F.2d 562 (9th Cir. 1987) .......................................................................................................6

New Orleans Pelicans Baseball, Inc. v. Nat’l Ass’n of Prof’l Baseball Leagues, Inc. Civ. A. No. 93-253, 1994 WL 631144 (E.D. La. Mar. 1, 1994) ................................................ .5

Planned Parenthood v. Casey 947 F.2d 682 (3d Cir. 1991), aff’d in part and rev’d in part , 505 U.S. 833 (1992) ................1, 4

Portland Baseball Club, Inc. v. Kuhn 368 F. Supp. 1004 (D. Or. 1971), aff’d 491 F.2d 1101 (9th Cir. 1974).......................................5

Postema v. Nat’l League of Prof’l Baseball Clubs

799 F. Supp. 1475 (S.D.N.Y. 1992), rev’d on other grounds, 998 F.2d 60 (2d Cir.

1993) ....................................................................................................................................6, 7, 8

Prof’l Baseball Schs. & Clubs, Inc. v. Kuhn 693 F.2d 1085 (11th Cir. 1982) ...............................................................................................4, 5




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Right Field Rooftops, LLC v. Chi. Baseball Holdings, LLC

87 F. Supp. 3d 874 (N.D. Ill. 2015) .............................................................................................5

Robertson v. Nat’l Basketball Ass’n

389 F. Supp. 867 (S.D.N.Y. 1975) ..............................................................................................7

Square D Co. v. Niagara Frontier Tariff Bureau, Inc.

476 U.S. 409 (1986) .....................................................................................................................4

Toolson v. N.Y. Yankees 346 U.S. 356, 357 (1953) .....................................................................................................1, 2, 3

United States v. Shubert 348 U.S. 222 (1955) .................................................................................................................2, 3

State Cases

Partee v. San Diego Chargers Football Co. 34 Cal. 3d 378 (1983) ..................................................................................................................7

Federal Statutes

15 U.S.C. § 26b(b) ...........................................................................................................................4




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I. INTRODUCTION

Although Plaintiffs now concede that they never had legitimate FLSA claims against 29

of the 30 Club Defendants, they refuse to concede that their antitrust claims are barred by nearly

a century of binding precedent. Instead, Plaintiffs argue that when the Supreme Court reaffirmed

its prior holdings on the antitrust exemption in Flood , the Court actually eviscerated those

holdings by dramatically narrowing their scope. As the Ninth Circuit recently held, this

argument “make[s] little sense.” Plaintiffs’ opposition is doomed by its unjustifiably narrow

characterization of “the business of baseball.” But even under Plaintiffs’ incorrect definition of

the exemption’s scope, Plaintiffs’ claims still must be dismissed.

II.

ARGUMENT

A. Plaintiffs ask this Court to reject authoritative Supreme Court and Circuit

Court decisions and instead adopt an unworkable “central enough” test.

1. The Flood Court did not silently overrule decades of precedent.

Plaintiffs claim that “[a]ll the Supreme Court cases concerned two issues: league

structure and the reserve system for players.” Opp. at 8. Not true. In Federal Baseball and

Toolson, the Supreme Court applied the antitrust exemption to a wide array of activities. See

Defendants’ Br. at 8 (listing claims from Supreme Court cases). But even if Plaintiffs were

correct that Federal Baseball and Toolson involved only “two issues” (Opp. at 8), the Supreme

Court’s decisions broadly held that the “business of baseball” is outside “the scope of the federal

antitrust laws.” Toolson v. N.Y. Yankees, 346 U.S. 356, 357 (1953). The Supreme Court’s legal

rule is binding in future cases even if they do not involve the exact same facts. “Our system of

precedent or stare decisis is thus based on adherence to both the reasoning and result of a case,

and not simply to the result alone.” Planned Parenthood v. Casey, 947 F.2d 682, 692 (3d Cir.

1991), aff’d in part and rev’d in part , 505 U.S. 833 (1992).

Plaintiffs, tacitly recognizing that Federal Baseball and Toolson bar their claims here,

next argue that the Supreme Court eviscerated those decisions in Flood v. Kuhn. As Plaintiffs

put it, the Supreme Court in Flood “set[] limits” on the “application” of the exemption. Opp.




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at 7. Plaintiffs misrepresent the holding of that case and argue that the Supreme Court

announced strict new limits in a passage where the Court actually explained that it was bound by

stare decisis to reaffirm its prior decisions:

3. Even though others might regard [the antitrust exemption] as ‘unrealistic,inconsistent, or illogical,’ . . . the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert , International Boxing, and Radovich, as well, a total of five consecutive cases inthis Court. It is an aberration that has been with us now for half a century, oneheretofore deemed fully entitled to the benefit of stare decisis, and one that hassurvived the Court's expanding concept of interstate commerce. It rests on arecognition and an acceptance of baseball's unique characteristics and needs.

4. Other professional sports operating interstate—football, boxing, basketball, and presumably, hockey and golf—are not so exempt.

Flood v. Kuhn, 407 U.S. 258, 282–83 (1972) (emphasis added and citations omitted).

Based on that single sentence, Plaintiffs contend that the Supreme Court dramatically narrowed

the antitrust exemption so that it protects only the “unique characteristics and needs” of the

game. Plaintiffs’ argument makes “little sense” for three reasons. City of San José v. Office of

the Comm’r of Baseball, 776 F.3d 686, 690 (9th Cir.), cert. denied , 136 S. Ct. 36 (2015).

First, the Supreme Court did not hide a strict new “limit” on the exemption in this

passage. That sentence simply explained one of the reasons for preserving the exemption:

baseball’s “unique characteristics and needs” as distinguished from other sports. The Flood

Court recognized the exemption’s “unique” history—baseball’s exemption had persisted for

“half a century” despite intense debate at the highest levels of the Judiciary and Congress.

Flood , 407 U.S. at 282. That history and baseball’s reliance on the exemption made baseball

different from other sports and other industries, and convinced the Court to “accept[ ]” its prior

holdings. Id.; see also United States v. Shubert , 348 U.S. 222, 229 (1955). Plaintiffs insist that

Flood “set[] limits” on the Court’s prior decisions (Opp. at 7), but the Court actually ruled that

those decisions were “fully entitled to the benefit of stare decisis.” Flood , 407 U.S. at 282.

Second, the Flood Court could not have sharply limited its prior decisions because the

Court literally “repeat[ed]” what “was said in Toolson”:

“Without re-examination of the underlying issues, the (judgment) below (is)




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affirmed on the authority of Federal Baseball . . . so far as that decisiondetermines that Congress had no intention of including the business of baseballwithin the scope of the federal antitrust laws.”

Flood , 407 U.S. at 285 (quoting Toolson, 346 U.S. at 357) (alterations in original).

If the Supreme Court actually meant to sharply limit the scope of the exemption, the Court’s next

words make no sense: “And what the Court said in Federal Baseball in 1922 and what it said in

Toolson in 1953, we say again here in 1972: the remedy, if any is indicated, is for congressional,

and not judicial, action.” Flood , 407 U.S. at 285. Plaintiffs insist that Flood did provide a

“judicial . . . remedy” by dramatically narrowing the exemption, but the text of the Flood opinion

explicitly holds that the exemption may be narrowed only by Congress.

Third, Plaintiffs cannot reconcile (a) their claim that the Supreme Court somehow

narrowed the scope of the exemption, with (b) the Supreme Court’s express reliance on “stare

decisis and congressional acquiescence.” San José , 776 F.3d at 690. As Judge Kozinski recently

explained, it would “make little sense for Flood to have contracted (or expanded) the exemption

from the one established in the cases in which Congress acquiesced and which generated reliance

interests.” Id . The Supreme Court justified both Toolson and Flood on a need to protect

baseball’s reliance interests. Toolson, 346 U.S. at 357; Flood , 407 U.S. at 275, 282, 283, 284;

see also Shubert , 348 U.S. at 229–30. It would be contradictory for the Court to base Flood on

stare decisis while at the same time narrowing the exemption. That would expose baseball to the

dire consequences that the Court wanted to prevent: a “flood of litigation,” “harassment,” and the

“injustices of retroactivity and surprise.” Flood , 407 U.S. at 278, 279.

2. Congress legislated that it would not “create” or “imply” the same

cause of action that Plaintiffs bring here.

The Supreme Court has repeatedly held that only Congress can alter or repeal the

antitrust exemption. See Flood , 407 U.S. at 284; Toolson, 348 U.S. at 228. And Congress has

never enacted a federal statute that permits the claim that Plaintiffs bring here. To the contrary,

Congress considered, and rejected, narrowing the antitrust exemption to allow the type of

antitrust claim in this case. In the Flood Act, Congress identified potential causes of action




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related—in any way whatsoever—to “employment to play baseball at the minor league level,”

the “professional baseball amateur or first-year draft,” or “the relationship between persons in the

business of organized professional baseball and . . . other individuals who are employed in the

business of organized professional baseball by such persons.” 15 U.S.C. § 26b(b)(1), (b)(5). But

Congress decided not to authorize such claims. Instead, it enacted a law that does not “create,

permit, or imply” the antitrust challenges that Plaintiffs bring here. 15 U.S.C. § 26b(b). Several

courts have closely examined that legislation and identified an unmistakable legislative intent to

preserve the exemption for everything but the specific challenges that are allowed by that statute:

certain suits by Major League players. See San José , 776 F.3d at 691; Morsani v. Major League

Baseball, 79 F. Supp. 2d 1331, 1335 n.12 (M.D. Fla. 1999). When “legislative history reveals

clear congressional awareness” of a judicially-created antitrust exemption, and then “Congress

specifically addressed this area”—while leaving the exemption otherwise “undisturbed”—this

“lends powerful support to [the] continued viability” of the exemption. Square D Co. v. Niagara

Frontier Tariff Bureau, Inc., 476 U.S. 409, 419 (1986) (cited in Opp. at 14). Congress

considered antitrust claims like the one at issue here but decided not to permit them.

3. The “courts and observers” have not “consistently narrowed” the

scope of the exemption, nor could they under binding precedent.

Because the Flood Court explicitly reaffirmed the antitrust exemption, and because the

Supreme Court’s decisions are binding, it is impossible for “courts” to have “consistently

narrowed” the “scope of baseball’s antitrust exemption” in the years since Flood . Opp. at 11. In

fact, the Circuit Courts have held that the antitrust exemption covers “the business of baseball,”

and that it is not limited to “any particular facet of that business.” Finley, 569 F.2d at 541; see

also San José , 776 F.3d at 690; Prof’l Baseball Schs. & Clubs, Inc. v. Kuhn, 693 F.2d 1085,

1085–86 (11th Cir. 1982). Plaintiffs point out that many of those cases involved disputes over

Club location, relocation, and contraction, and thus infer that the antitrust exemption covers only

those issues. Again, that is not how precedent works. See Casey, 947 F.2d at 692. In addition,

Plaintiffs are wrong to assume that the scope of the antitrust exemption is limited to the specific




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facts of the few cases that litigants happen to have brought since 1972. Because the Supreme

Court has held—three times—that baseball is immune from antitrust regulation, most litigants

have wisely decided not to bring baseless lawsuits.

Nor can Plaintiffs squeeze every decision into two vague boxes (“league structure” and

“player contracts”) and then declare that all other facets of the “business of baseball” are outside

the exemption.1 Even if one accepts Plaintiffs’ artificial focus on post-Flood cases, the lower

courts have applied the exemption to an array of challenges, including: an alleged conspiracy to

“eliminate Oakland from baseball” by vetoing trades,2 a “player assignment” and “franchise

location” system,3 an alleged conspiracy to restrict compensation paid to Minor League Clubs,

4

restrictions on player “pay and mobility,”5

restrictions on Club ownership-transfers and

relocation,6 and MLB’s process for eliminating Clubs.

7 If all of that conduct can be described as

either “player contracts” or “league structure,” then those categories are anything but “narrow.”

A recent district-court decision definitively puts the lie to Plaintiffs’ claim that “courts

after Flood have consistently held that the exemption does not apply” to “conduct outside the

two narrow areas of league structure and player contracts.” Opp. at 9. In the Right Field

Rooftops case, plaintiffs sold tickets to watch Cubs games from the rooftops across the street

from Wrigley Field, and according to their allegations, the Cubs conspired to put them out of

business. Right Field Rooftops, LLC v. Chi. Baseball Holdings, LLC , 87 F. Supp. 3d 874 (N.D.

1 By that logic, Defendants could argue that the antitrust exemption covers everything under the

sun except “gender discrimination of umpires” and “restrictions on broadcasting rights,” becausethose are the specific allegations in the two opinions that Plaintiffs rely on. See Opp. at 9 n.9.2 Finley & Co., 569 F.2d at 531.

3 Prof’l Baseball Schs., 693 F.2d at 1085. 4 Portland Baseball Club, Inc. v. Kuhn, 368 F. Supp. 1004, 1006–08 (D. Or. 1971), aff’d 491

F.2d 1101 (9th Cir. 1974).5 Miranda v. Selig, No. 14-cv-05349-HSG, 2015 WL 5357854, at *1 (N.D. Cal. Sept. 14, 2015).

6 New Orleans Pelicans Baseball, Inc. v. Nat’l Ass’n of Prof’l Baseball Leagues, Inc., Civ. A.

No. 93-253, 1994 WL 631144, at *1–2 (E.D. La. Mar. 1, 1994).7 Major League Baseball v. Crist , 331 F.3d 1177, 1179 (11th Cir. 2003).




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Ill. 2015). The plaintiffs alleged that the Cubs had violated the antitrust laws by (1) buying up

rooftop establishments, (2) attempting to set a minimum price on rooftop tickets, and (3)

installing signage to block the view into Wrigley Field. Id. at 883. These allegations have no

connection to league structure or player contracts. But the district court nonetheless dismissed

the claims and specifically rejected the argument that the challenged conduct was outside the

exemption because it was “not necessary to produce the game on the field.” Id. at 884–85.

Again, the antitrust exemption covers more than “two narrow” facets of the business of baseball.

4. Plaintiffs’ proposed “central enough” test is contrary to law and

unworkable.

As explained in Defendants’ opening brief, Judge Patterson’s 1992 decision in Postema

offers no guidance here. See Defendants’ Br. at 14–16. The Postema court focused—

inappropriately—on Flood’s phrase concerning baseball’s “unique characteristics and needs.”8

Based on that single phrase, taken out of its context, the court held that the exemption protects

baseball when a plaintiff challenges a “unique characteristic or need of the game” that is

“essential,” “enhances” baseball’s “vitality or viability,” and is therefore “central enough to

baseball to be encompassed in the baseball exemption” Postema, 799 F. Supp. at 1489. As

explained above in Section II.A.1, that interpretation is inconsistent with the caselaw, and too

inscrutable to be of any value. Plaintiffs’ test for determining the scope of baseball’s antitrust

exemption cannot be correct, because it would yield results that are inconsistent with essentially

every baseball-antitrust decision in history. For example, Plaintiffs agree that courts have

consistently used the antitrust exemption to protect rules on Club relocation. Opp. at 9 & n.8,

12–13. But relocation rules aren’t a “unique characteristic” of baseball. For many years, the

NBA and NFL had very similar rules.

9

Plaintiffs also admit that courts have repeatedly

8 Postema v. Nat’l League of Prof’l Baseball Clubs, 799 F. Supp. 1475, 1488–89 (S.D.N.Y.

1992), rev’d on other grounds, 998 F.2d 60 (2d Cir. 1993).9 See, e.g., Nat’l Basketball Ass’n v. SDC Basketball Club, Inc. , 815 F.2d 562, 564 (9th Cir.

1987); L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 726 F.2d 1381, 1384–85 (9thCir. 1984).




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exempted baseball’s reserve system from antitrust regulation (Opp. at 8–9), but for many years,

the other major sports leagues used very similar reserve systems.10

Thus the “reserve system”

was never unique to baseball’s “characteristics and needs”; every major professional sport had

similar characteristics, similar needs, and a similar system. If Plaintiffs’ preferred test is the

correct one, then all of these core baseball-antitrust cases were wrongly decided.

The other major problem with Plaintiffs’ test is that it asks district courts to draw a

critical yet ineffable distinction between business practices that are “central enough to baseball to

be encompassed in the exemption,” and business practices that are not “central enough,” all

based on a vague intuition about what “enhances” baseball’s “vitality and viability.” For

example, Plaintiffs agree that anti-tampering rules are “central enough” when applied to players

and coaches, because such rules prevent them from being put in the compromising position of

working for one Club while negotiating compensation from another. And Plaintiffs suggest that

anti-tampering rules are also “central enough” when applied to “[h]igher-level front office

employees.” Opp. at 16. But when the same employment agreements and anti-tampering rules

are allegedly applied to scouts—critical employees who help build the team on the field—

Plaintiffs believe the business practice is no longer “central enough.”

Plaintiffs’ “central enough” test has been invoked by exactly two district courts in the 43

years since Flood , and those two courts couldn’t even agree on how to apply it. The Postema

court held that umpires were outside the scope of the exemption, but Henderson Broadcasting

actually stated that umpires were “central enough.” Postema, 799 F. Supp. at 1489 n.11 (citing

Henderson Broadcasting Corp. v. Houston Sports Ass’n, 541 F. Supp. 263, 269 (S.D. Tex.

1982)). Moreover, the Henderson court’s “central enough” test distinguished between disputes

that involve “non-exempt” third parties and dispute that are exempt because they are inside

baseball, like claims between “players and team owners or a league.” Henderson, 541 F. Supp.

10 See, e.g., Partee v. San Diego Chargers Football Co. , 34 Cal. 3d 378, 381 n.2 (1983);

Robertson v. Nat’l Basketball Ass’n, 389 F. Supp. 867, 873–75 (S.D.N.Y. 1975).




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at 270. Under that test, the Plaintiffs’ claims should be dismissed. This dispute is between Club-

employers and their scout-employees, it does not involve “non-exempt” third parties, so it is

entirely inside the business of baseball. And, once again, Plaintiffs point to Garber , but that

decision did not consider what “enhances” baseball’s “vitality and viability”, and instead issued

a sui generis interpretation of congressional intent in the Sports Broadcasting Act.11

B. No matter what test is applied, scouts and the anti-tampering rule fall within

the scope of the exemption.

Clubs need players to play games, and Clubs acquire players “through free agency, the

draft, and other player acquisition means.” SAC ¶ 95. Scouts “assess baseball players and

project the players’ abilities to perform at the major league level, and they present that

information to” Clubs. Id. ¶ 93. These projections “guide the [Clubs’] decisions on how to rank

players to be acquired.” Id. ¶ 95. As Plaintiffs admit, those scouting reports “allow[]” Clubs “to

decide which players to pursue.” Id . Clubs “place importance on the acquisition and

development of baseball players”—great importance, obviously—“so a scout who is good at

evaluating baseball players has great value.” Id. ¶ 127. Plaintiffs try to diminish the centrality of

scouts by pointlessly noting that scouts sometimes evaluate players many miles from their

employer’s Major League ballpark. Opp. at 16–17. Of course, Clubs must send scouts all over

the country and the world to evaluate players and then advise their Clubs on potential draftees

and acquisition targets. Evaluating players and building teams is critical to the game, and a

scout’s job becomes no less critical because the scout sometimes travels for work. No matter

what test is applied—the “business of baseball” test or the “central enough” test—scouts and

their employment relationship with the Clubs fall within the scope of the antitrust exemption.

To avoid this conclusion, Plaintiffs fixate on the purported anticompetitive effects of a

small part of their employment relationship: the anti-tampering policy.12

But focusing on one

11 See Defendants’ Br. at 17; Garber v. Office of the Comm’r. of Baseball, decided sub nom.

Laumann v. Nat’l Hockey League, 56 F. Supp. 3d 280, 295–97 (S.D.N.Y. 2014).12

Plaintiffs also seek to challenge the “offset policy,” even though neither Plaintiff alleges that




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policy in isolation, to the exclusion of all related rules and policies, distorts the analysis. In

context, the anti-tampering rule is important or “central enough” to baseball. Fair competition is

core to the product that Defendants sell. Over the years, the sport has developed many

prophylactic rules to protect fair competition, and to prevent fans from questioning the integrity

of the game. These rules include a ban on performance-enhancing drugs,13

a ban on gambling,14

and the anti-tampering rule (which is designed to “preserve discipline and competition, and to

prevent . . . enticement”). These prophylactic rules are applied not just to players, but also to

many Club employees and League officials. See, e.g., MLR 21(d), available at Dkt. 109-1 at 92.

If the anti-tampering rule is applied to scouts (as Plaintiffs claim), the rule would help

protect the sport’s integrity. Scouts possess highly confidential information about draft strategy,

scouting reports, player projections, injuries, training regimes, and prospects. Some scouts focus

on the Major Leagues, and therefore hold highly confidential information on Major League

player tendencies and in-game strategies. Opp. at 3 (citing SAC ¶ 93). Protecting this

information “enhances the vitality” of the sport, as does any rule that prevents scouts from being

put in a position where fans would question whether Clubs are improperly soliciting confidential

information. To be clear, Plaintiffs do not allege that scouts are barred from ever working for a

competitor. Nor do they allege that scouts are barred from speaking with competitors, or even

negotiating future employment with competitors. Instead, Plaintiffs merely allege that scouts

must have their Club’s permission before engaging in employment discussions with a competitor

the offset policy injured him, and thus neither Plaintiff has standing. According to the Plaintiffs’

own allegations, the offset policy affects only scouts who (1) worked under a guaranteedcontract, (2) were terminated, and (3) were then hired by another Club during the term of theiroriginal contract. See SAC ¶ 108. Neither Plaintiff meets these conditions. See Defendants’ Br.at 5 & n.4. And that is why neither Plaintiff alleges that he, personally, has been injured.Plaintiffs do not have standing to challenge a policy that could not possibly have injured them.13

Major League Baseball’s Joint Drug Prevention and Treatment Program at 35, available at http://mlb.mlb.com/pa/pdf/jda.pdf . 14

MLR 21(d), available at Dkt. 109-1 at 92.


http://mlb.mlb.com/pa/pdf/jda.pdf





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Club if they are currently under contract. The alleged anti-tampering rule is justified by the need

to protect fair competition, and the need to avoid any appearance of impropriety.

C. Wyckoff’s FLSA claims against all Defendant Clubs except the Kansas City

Royals should be dismissed with prejudice.

Although Plaintiffs now “concede” that they failed to assert cognizable wage-and-hour

claims against any Club other than the Kansas City Royals (Opp. at 23), Plaintiffs took no steps

to dismiss those claims or “obviate[] the need” for Defendants to seek dismissal. Id . Instead, at

4:06 p.m. on the day before Defendants’ Motion to Dismiss was due to be served, Plaintiffs sent

Defendants a letter stating that “Mr. Wyckoff brings his FLSA claims only against MLB and the

Kansas City Royals.” Lupion Decl., Ex. 1. Defendants immediately requested (1) that Plaintiffs

withdraw all claims that they intended to concede; and (2) a one-week extension on Defendants’

Motion to Dismiss to dismiss those claims and avoid any unnecessary briefing. Lupion Decl.,

Ex. 2. Plaintiffs never responded. The Court should now dismiss the baseless claims with

prejudice. Additionally, Plaintiffs’ so-called reservation of rights as to a future certification

motion is beyond the scope of this motion to dismiss. Defendants will respond to any motion for

judicial notice and conditional certification at the appropriate time. To the extent that Plaintiffs

seek to conditionally certify any collective in this case, it must be limited to scouts who were

allegedly jointly employed by the Kansas City Royals and MLB—the only individuals who

might conceivably be “similarly situated” to Plaintiff Wyckoff.

III. CONCLUSION

The Court should dismiss Plaintiffs’ antitrust claims, as well as the FLSA claims that

were brought against the 29 Clubs that did not employ Plaintiff Wyckoff.15

15 The Court does not need a “factual record” to determine that the Plaintiffs’ allegations fall

under the antitrust exemption. As the Ninth Circuit recently explained, the Supreme Court didnot intend “a fact-sensitive inquiry whenever the antitrust exemption is challenged.” San José ,776 F.3d at 690. A fact-sensitive inquiry would actually contradict the Court’s stated purpose: tohonor the industry’s reliance interests and protect baseball from a “flood of litigation” and“harassment.” Flood , 407 U.S. at 278.




11

Dated: December 23, 2015

Respectfully submitted,

KEKER & VAN NEST LLP PROSKAUER ROSE LLP

By: s/ Elliot R. Peters By: s/ Elise M. BloomJOHN W. KEKER ( pro hac vice)ELLIOT R. PETERSR. ADAM LAURIDSEN ( pro hac vice)THOMAS E. GORMAN ( pro hac vice)633 Battery Street

San Francisco, CA 94111-1809Telephone: 415-391-5400

Facsimile: 415-397-7188

Attorneys for Defendants

ELISE M. BLOOM

ADAM M. LUPIONEleven Times Square

New York, NY 10036-8299

Telephone: 212-969-3000

Facsimile: 212-969-2900

Attorneys for Defendants16

16 Proskauer Rose LLP is not serving as counsel for the Baltimore Orioles Limited Partnership or

Baltimore Orioles, Inc.


Wyckoff v. Office of the Commissioner - Motion to Dismiss Reply

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Transcript of Wyckoff v. Office of the Commissioner - Motion to Dismiss Reply