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

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK
JORDAN WYCKOFF, Individually and on
Behalf of All Those Similarly Situated,
Plaintiff,
v.
OFFICE OF THE COMMISSIONER OF
BASEBALL, an unincorporated association
doing business as MAJOR LEAGUE
BASEBALL; ALLAN H. SELIG; ROBERT
D. MANFRED, JR.; KANSAS CITY
ROYALS BASEBALL CORP.; MIAMI
MARLINS, L.P.; SAN FRANCISCO
BASEBALL ASSOCIATES LLC; BOSTON
RED SOX BASEBALL CLUB L.P.;
ANGELS BASEBALL LP; CHICAGO
WHITE SOX LTD.; ST. LOUIS
CARDINALS, LLC; COLORADO ROCKIES
BASEBALL CLUB, LTD.; THE BASEBALL
CLUB OF SEATTLE, LLLP; THE
CINCINNATI REDS, LLC; HOUSTON
BASEBALL PARTNERS LLC; ATHLETICS
INVESTMENT GROUP, LLC; ROGERS
BLUE JAYS BASEBALL PARTNERSHIP;
CLEVELAND INDIANS BASEBALL CO.,
L.P.; CLEVELAND INDIANS BASEBALL
CO., INC.; PADRES L.P.; SAN DIEGO
PADRES BASEBALL CLUB, L.P.;
MINNESOTA TWINS, LLC;
WASHINGTON NATIONALS BASEBALL
CLUB, LLC; DETROIT TIGERS, INC.; LOS
ANGELES DODGERS LLC; LOS ANGELES
DODGERS HOLDING COMPANY LLC;
STERLING METS L.P.; ATLANTA
NATIONAL LEAGUE BASEBALL CLUB,
INC.; AZPB L.P.; BALTIMORE ORIOLES,
INC.; BALTIMORE ORIOLES, L.P.; THE
PHILLIES; PITTSBURGH ASSOCIATES,
L.P.; NEW YORK YANKEES PSHIP;
TAMPA BAY RAYS BASEBALL LTD.;
RANGERS BASEBALL EXPRESS, LLC;
RANGERS BASEBALL, LLC; CHICAGO
CUBS BASEBALL CLUB, LLC;
MILWAUKEE BREWERS BASEBALL
CLUB, INC.; MILWAUKEE BREWERS
BASEBALL CLUB, L.P.,
Defendants.

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

Hon. Paul G. Gardephe
CLASS ACTION
DEFENDANTS REPLY MEMORANDUM
IN SUPPORT OF MOTION TO DISMISS
UNDER FEDERAL RULES OF CIVIL
PROCEDURE 12(b)(1) AND 12(b)(6)

Case 1:15-cv-05186-PGG Document 119 Filed 12/23/15 Page 2 of 15

TABLE OF CONTENTS
Page
I.

INTRODUCTION ...............................................................................................................1

II.

ARGUMENT .......................................................................................................................1
A.

III.

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 fall
within the scope of the exemption. ..........................................................................8

C.

Wyckoffs FLSA claims against all Defendant Clubs except the Kansas
City Royals should be dismissed with prejudice. ..................................................10

CONCLUSION ..................................................................................................................10

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TABLE OF AUTHORITIES
Page(s)
Federal Cases
City of San Jos v. Office of the Commr 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 Commr. of Baseball
(No. 12-cv-3704 (SAS)), decided sub nom. Laumann v. Natl Hockey League,
56 F. Supp. 3d 280 (S.D.N.Y. 2014) ...........................................................................................8
Henderson Broadcasting Corp. v. Houston Sports Assn
541 F. Supp. 263 (S.D. Tex. 1982) ..........................................................................................7, 8
L.A. Meml Coliseum Commn v. Natl 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
Natl Basketball Assn v. SDC Basketball Club, Inc.
815 F.2d 562 (9th Cir. 1987) .......................................................................................................6
New Orleans Pelicans Baseball, Inc. v. Natl Assn of Profl 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), affd in part and revd in part, 505 U.S. 833 (1992) ................1, 4
Portland Baseball Club, Inc. v. Kuhn
368 F. Supp. 1004 (D. Or. 1971), affd 491 F.2d 1101 (9th Cir. 1974).......................................5
Postema v. Natl League of Profl Baseball Clubs
799 F. Supp. 1475 (S.D.N.Y. 1992), revd on other grounds, 998 F.2d 60 (2d Cir.
1993) ....................................................................................................................................6, 7, 8
Profl 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. Natl Basketball Assn
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

iii

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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 exemptions 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
Courts 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 Courts 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), affd in part and revd 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 in
this Court. It is an aberration that has been with us now for half a century, one
heretofore deemed fully entitled to the benefit of stare decisis, and one that has
survived the Court's expanding concept of interstate commerce. It rests on a
recognition and an acceptance of baseball's unique characteristics and needs.
4. Other professional sports operating interstatefootball, boxing, basketball, and
presumably, hockey and golfare not so exempt.
Flood v. Kuhn, 407 U.S. 258, 28283 (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 Jos v. Office of
the Commr 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:
baseballs unique characteristics and needs as distinguished from other sports. The Flood
Court recognized the exemptions unique historybaseballs 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 baseballs 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 Courts 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 decision

determines that Congress had no intention of including the business of baseball
within 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 Courts 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 Courts express reliance on stare
decisis and congressional acquiescence. San Jos, 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
baseballs reliance interests. Toolson, 346 U.S. at 357; Flood, 407 U.S. at 275, 282, 283, 284;
see also Shubert, 348 U.S. at 22930. 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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relatedin any way whatsoeverto 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 Jos, 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 areawhile leaving the exemption otherwise undisturbedthis
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 Courts decisions are binding, it is impossible for courts to have consistently
narrowed the scope of baseballs 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 Jos, 776 F.3d at 690; Profl Baseball Schs. & Clubs, Inc. v. Kuhn, 693 F.2d 1085,
108586 (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 heldthree timesthat 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 MLBs 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.

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, because
those 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
Profl Baseball Schs., 693 F.2d at 1085.
4
Portland Baseball Club, Inc. v. Kuhn, 368 F. Supp. 1004, 100608 (D. Or. 1971), affd 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. Natl Assn of Profl Baseball Leagues, Inc., Civ. A.
No. 93-253, 1994 WL 631144, at *12 (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 88485.
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 Pattersons 1992 decision in Postema

offers no guidance here. See Defendants Br. at 1416. The Postema court focused
inappropriatelyon Floods phrase concerning baseballs 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 baseballs 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 baseballs 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,
1213. But relocation rules arent a unique characteristic of baseball. For many years, the
NBA and NFL had very similar rules. 9 Plaintiffs also admit that courts have repeatedly

Postema v. Natl League of Profl Baseball Clubs, 799 F. Supp. 1475, 148889 (S.D.N.Y.
1992), revd on other grounds, 998 F.2d 60 (2d Cir. 1993).
9
See, e.g., Natl Basketball Assn v. SDC Basketball Club, Inc., 815 F.2d 562, 564 (9th Cir.
1987); L.A. Meml Coliseum Commn v. Natl Football League, 726 F.2d 1381, 138485 (9th
Cir. 1984).

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exempted baseballs reserve system from antitrust regulation (Opp. at 89), but for many years,
the other major sports leagues used very similar reserve systems. 10 Thus the reserve system
was never unique to baseballs 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 baseballs 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 scoutscritical 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 couldnt 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 Assn, 541 F. Supp. 263, 269 (S.D. Tex.
1982)). Moreover, the Henderson courts 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. Natl Basketball Assn, 389 F. Supp. 867, 87375 (S.D.N.Y. 1975).

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at 270. Under that test, the Plaintiffs claims should be dismissed. This dispute is between Clubemployers 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 baseballs 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 playersgreat importance, obviouslyso 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
employers Major League ballpark. Opp. at 1617. 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
scouts job becomes no less critical because the scout sometimes travels for work. No matter
what test is appliedthe business of baseball test or the central enough testscouts 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 Commr. of Baseball, decided sub nom.
Laumann v. Natl Hockey League, 56 F. Supp. 3d 280, 29597 (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 sports 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 Clubs 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 guaranteed
contract, (2) were terminated, and (3) were then hired by another Club during the term of their
original 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 Baseballs 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.

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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.

Wyckoffs 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 MLBthe 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 did
not intend a fact-sensitive inquiry whenever the antitrust exemption is challenged. San Jos,
776 F.3d at 690. A fact-sensitive inquiry would actually contradict the Courts stated purpose: to
honor the industrys reliance interests and protect baseball from a flood of litigation and
harassment. Flood, 407 U.S. at 278.

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

Dated: December 23, 2015

Respectfully submitted,
KEKER & VAN NEST LLP

PROSKAUER ROSE LLP

By: /s/ Elliot R. Peters

JOHN W. KEKER (pro hac vice)
ELLIOT R. PETERS
R. ADAM LAURIDSEN (pro hac vice)
THOMAS E. GORMAN (pro hac vice)
633 Battery Street
San Francisco, CA 94111-1809
Telephone: 415-391-5400
Facsimile: 415-397-7188

By: /s/ Elise M. Bloom

ELISE M. BLOOM
ADAM M. LUPION
Eleven Times Square
New York, NY 10036-8299
Telephone: 212-969-3000
Facsimile: 212-969-2900
Attorneys for Defendants 16

Attorneys for Defendants

16

Proskauer Rose LLP is not serving as counsel for the Baltimore Orioles Limited Partnership or
Baltimore Orioles, Inc.

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