With Cactus League Play Under Way, an Ex-Minor League Pitcher's Fair-Pay Lawsuit Is Scaring MLB
Andrew J. Nilsen
Bryan Henry was sitting in a business management class at Burlington County College when a number with an Arizona area code popped up on his phone. It was 2012, and Henry had just arrived home in New Jersey after his second season as a Diamondbacks farm hand. He darted for the door anxious to answer the call.
"This is either going to be really good news or really bad news," he thought.
The voice on the other end of the line was that of Mike Bell, director of player development for the D-backs organization.
"I just wanted to let you know we've decided to give you your release," Bell said. "We have to make room for the new draft picks."
Henry felt sick. Just like that, his dream of playing major-league baseball ended the same way it has for thousands of minor-league players -- with a phone call, an offer to help catch on with another team, and a dwindling bank account.
The plight of the minor leaguer has been well documented. Cramped and dilapidated living arrangements, poor diet, 14-hour bus rides, 11-hour days, and poverty-level wages. Until now, nothing has been done to improve minor-league pay, but a St. Louis-based attorney and former minor-league pitcher is trying to change that.
Garrett Broshuis remembers his own dream-crushing conversation. He was heading from the diamond to the locker room in April 2009 when his coach called him into the office. His knees seemed to register the significance of the invite as quickly as his brain, causing the 6-foot-2 pitcher to wobble awkwardly. In five years playing for the San Francisco Giants farm system, Broshuis knew it was never a good thing to be called into the coach's office, especially on the last day of spring training.
"I was basically told that I didn't have a future in the Giants organization," recalls the ex-athlete, who, as a pitcher for the University of Missouri, went 11-0 his senior year, tying a school record. But the Giants didn't completely sever ties with Broshuis that day. Instead the organization gave him the option to ride out the season as a "filler," a sparring partner of sorts for guys who -- unlike him -- might actually have a shot at the bigs.
Broshuis decided to play on. For one, he wasn't quite ready to give up the dream he'd held since his days as a Little League star back in the small, southeastern Missouri town of Advance. Also, he needed his minor-league paycheck, even if what he earned was a pittance.
When the Giants scooped up Broshuis in the fifth round of the 2004 draft, the club threw in a handsome $160,000 signing bonus -- an amount that would prove to be more than he'd ever earn in wages while toiling for the organization's minor-league affiliates. Throughout his six years within the Giants farm system, Broshuis figures his hourly pay was less than minimum wage.
In that final season playing for the Giants Double-A affiliate, the Connecticut Defenders, Broshuis spent long bus rides up and down the East Coast studying for the LSAT. Law school, he hoped, would offer him what baseball -- the minors, anyway -- could not: a career that could provide for him and his family. Moreover, law school might offer him a chance to right a wrong in minor-league paychecks.
Now, five years after he hung up his cleats, Broshuis has returned to baseball, albeit in a much different manner. Last March, the newly minted attorney -- just a year out of Saint Louis University School of Law -- filed a first-of-its-kind class-action lawsuit against Major League Baseball, alleging that it is in violation of the Fair Labor Standards Act for routinely paying minor-league players less than minimum wage and denying them overtime wages.
"Since minor leaguers do not belong to a union, nothing has prevented [MLB] from artificially and illegally depressing minor-league wages," states the suit, which includes at least one player from all 30 major-league teams.
In baseball parlance, the legal claim is the equivalent of a 95 mile-per-hour brushback pitch, and those in the commissioner's office aren't the only ones who've taken note. In the past eight months, scores of media outlets as diverse as the Wall Street Journal and Mother Jones have written about Broshuis and his David-versus-Goliath fight against MLB.
It's not exactly how the ex-ballplayer imagined he'd make a name for himself in the sport he loves, but it eventually may benefit the game more than any of his on-field accomplishments ever could have and, if successful, might lead Broshuis to his ultimate goal of unionizing minor-league baseball.
Former Arizona Diamondbacks farm hand Bryan Henry in South Bend, Indiana before a home game in 2012.
Courtesy of Bryan Henry
During his days with the Giants organization, the right-handed Broshuis was known as a control pitcher whose outs came via his pinpoint accuracy and varied pitch velocity. For a couple of years, he was rated as having the best control of all pitchers in the Giants farm system, and he was named the organization's co-pitcher of the year in 2005. Other prospects in the Giants farm system at the time included guys who've gone on to great success in the majors, including Tim Lincecum, Matt Cain, and last year's World Series MVP, Madison Bumgarner.
Yet despite earning a few accolades during his professional career, it wasn't long before Broshuis learned that the minor-league lifestyle was far different than the glamor of the majors. In his rookie '04 season with the Giants High-A affiliate in San Jose, Broshuis earned $850 a month (first-year players in the minors now earn $1,100 a month) and says he typically worked 10 hours a day when factoring in games, practice, and requisite training and instruction sessions. After taxes and mandatory clubhouse dues to pay for meals and laundry services, Broshuis took home $730 a month. Boil it all down -- the 60-hour workweeks and the $730 paycheck -- and Broshuis averaged about $3 an hour in take-home pay.
During that first year in San Jose, Broshuis paid a host family $100 a month for a bedroom, a futon, and access to the fridge. Such accommodations were a luxury compared to the air mattresses and moldy apartments he would become accustomed to in the higher levels of the minors.
"I have a lot of respect for the people [who] do that," he says of host families. "Given what they pay minor-league players, it's almost impossible to pay the full amount of rent for an apartment, especially in some cities where the cost of living is very high. If you don't have host families, you just couldn't make it."
Each year Broshuis' salary increased, but not by much. He doesn't remember exactly how much he made during the final year of his career in 2009, but he adds that without the six-figure signing bonus, it would have cost him money to play.
"If I wouldn't have had it, I don't know how I would have lived," Broshuis says of the bonus. "When you're only making $5,000 to $10,000 for your salary the entire year, you gotta cut into that, but I stretched it out and lived very frugally."
Frugally indeed, as Broshuis' wife, Alicia, can attest. She recalls going with her then-boyfriend and his roommates as they signed a lease for an apartment after spring training one year. When the apartment manager asked for a down payment and $1,000 for the first month's rent, Broshuis and his roommates looked at each other. None of them could cover it.
"Those first few years [in Double-A], I was the one who paid the down payment and first month's rent because they don't make any money during spring training," Alicia says. "They have absolutely no way that they can pay for it because usually they burn through any money that they earned in the off-season during spring training."
Minor leaguers contractually are required to attend spring training, but they are not paid a salary.
In his off time, Broshuis tried to find other opportunities to supplement his income. He gave pitching lessons to kids and wrote a regular column, "The Suitcase Chronicles," for Baseball America about life as a minor leaguer. He used the forum to muse on issues such as the relationship between veteran and rookie players, anxiety over the looming possibility of getting cut, making the transition from a starting pitcher to the bullpen, and autograph etiquette.
The bookish Broshuis also distinguished himself among his teammates by his choice in reading material. He recalls reading a Charles Dickens novel on a road trip when one of his coaches walked past him on the way to the toilet in the back of the bus.
"Dickens? Who the hell is Dickens?!" the coach wanted to know.
It was during his final season in the minors that Broshuis also read Don Wollett's Getting on Base: Unionism in Baseball. After finishing the book, Broshuis reached out to Wollett, the late labor law professor and attorney, and the two hatched a plan to try to organize a minor-league players' union. Broshuis set up a private Facebook page and met with teammates off the field to discuss unionizing, but no one wanted to put his neck on the line.
"Guys were, as you can imagine, very reluctant to do anything that would upset that status quo because they don't want to jeopardize their dream," he says. "Everybody would say, 'Yeah, something's gotta be done,' and then all of a sudden you say the word 'union,' and they're like, 'Well I don't know if I want to take that step.'"
Such a reaction doesn't surprise Lee Lowenfish, a baseball academic and author of The Imperfect Diamond: A History of Baseball's Labor Wars.
"Baseball has been an all-or-nothing situation for a long time," he says. "For a minor leaguer to ask for more money would be tantamount to ending his career before it started."
It was after he left the game that Broshuis found players -- particularly ex-players -- who were more than willing to express their distaste for the system.
It didn't take long for Vince Spilker to experience that sour flavor. The former Diamondbacks farm hand received a $50,000 signing bonus in 2012. Without it, he wouldn't have been able to pay for housing and food when his monthly salary fell short.
"I was fortunate enough to get a little bit of a signing bonus," Spilker says. "Most other players didn't have that money to fall back on. They had to live off of, like, $300 a week."
At the end of his first year playing rookie ball in Missoula, Montana, Spilker's velocity dipped from 96 miles per hour into the mid-80s. He requested an MRI of his shoulder, but coaches opted to give him rest and rehab instead. The problem persisted until the final game. Then he was invited to a post-season instructional league, affectionately referred to as "instructs," where prospects get extra coaching and an opportunity to rehab any injuries. Players aren't paid a salary during the month or two-long league, but still have to pay for a place to stay.
"They give you a per diem [during instructs], which is nothing," he says. "You have to hope you have some money saved up, otherwise you're not going to be able to live."
Jason Wood, Spilker's former agent, who represents major- and minor-league baseball players, confirms that many minor-leaguers lose money while playing in the farm system.
"If they don't get a significant signing bonus, minor-league baseball can cost money when you factor in equipment, food, transportation and rent," Wood says.
He adds that minor leaguers shouldn't be getting wealthy, but for a $9 billion industry like MLB he believes there is a compromise that would allow minor-leaguers to eat healthy, have adequate room and board, and not go into debt.
Bryan Henry can speak to that. Unlike Broshuis and Spilker, who could fall back on a signing bonus, the former catcher ended up losing money after each year of his career. His $1,000 bonus dried up soon into the second month of the first season, and he lived paycheck to paycheck and off his parents' debit card. In the off season, he was able to save a little money by living at home and giving baseball lessons, but it also quickly disappeared in spring training when he worked 60- or 70-hour weeks with no salary.
"I was always on my last dollar," he says. "I don't know if I can count how many times I had to call my parents and say 'I need money to survive.' You can't budget four or five dollars an hour. It's impossible to maintain at that amount of money."
Vince Spillker and the Missoula (Mont.) Osprey celebrate their Pioneer League championship over the Ogden (Utah) Raptors.
Courtesy of Vince Spillker
To understand the caste system in baseball, you need only to look at the St. Louis Cardinals and the iconic Branch Rickey, who worked in the team's front office from 1925 to 1942. It was Rickey who urged the Cardinals to purchase controlling interest in minor-league teams in the 1920s as a strategy to nab the best prospects without bidding against wealthier teams such as the New York Yankees. Before Rickey, minor-league teams operated independently of major-league organizations.
Soon, the Cardinals owned entire leagues and could buy, sell, promote, or trade hundreds of players as they wished. Financial and on-field success immediately followed for the Cards with their first World Series championship in 1926. By 1939, the organization owned 32 teams and controlled more than 650 players. Other teams soon followed Rickey's lead. Since 1962 MLB has required all franchises to maintain at least five classes of minor-league teams, though most have contracts with seven or eight minor-league clubs at various levels and employ upward of 200 minor-league players.
The control that Rickey and major-league owners exerted over minor-league players at that time also extended to the major leagues. It wasn't until the mid-1950s that the players formed a union -- and not until the 1970s, with the advent of free agency, did major-league players have control over where they played.
Under the current system, the MLB Players Association -- the union responsible for negotiating on behalf of major leaguers during collective-bargaining agreements -- only represents players on the 40-man major-league rosters. Collective-bargaining agreements are negotiations between the league's owners and players, where both sides come to an agreement on how the league will operate. Like all the CBAs that have come before it, the last one (which was forged in 2012 and expires at the end of the 2016 season) left minor-league players without a voice in contract talks. Instead, the negotiations between the union and the owners in 2012 addressed issues such as the expansion of instant replay, testing for human growth hormones and changes to the amateur draft.
Although exact salaries are not public, Broshuis' lawsuit states that Class A minor leaguers make $1,100 per month, AA players make $1,500 a month, and players in AAA, the highest level, earn $2,150 a month. Those values represent a 75 percent increase from minor-league salaries in 1976, according to the lawsuit. During the same time period, major-league salaries rose 2,000 percent, and inflation rose 400 percent.
Of the four major U.S. sports leagues, only the National Football League does not have an affiliated minor league. Players in the National Basketball Association's equivalent of a minor-league farm system, the NBA Development League, earn between $12,000 and $24,000 according to reports.
Professional hockey players are unique in that their farm system is unionized. Those in hockey's Triple-A league earn a minimum of $42,375, though the average player at that level makes about $90,000, says Larry Landon, executive director of the Professional Hockey Players' Association, hockey's minor-league union. The minimum salary for Double-A hockey players is about $9,000, but Landon adds that the league supplies those players with furnished, rent-free apartments.
"The union is in a place where we've built relationships, and it's a win for everybody involved," says Landon, who doesn't understand how minor-league baseball players remain without a voice at the bargaining table.
"Of all the sports that should have a union, minor-league baseball is the one," says Landon, noting that the past two decades have been a windfall for professional baseball. According to Forbes, MLB revenue has increased sixfold since 1995, rising from $1.4 billion to $9 billion last year.
MLB spokesman Michael Teevan declined to comment on Broshuis' lawsuit for this article, but MLB has filed a 78-page response to the suit that denies all allegations and lists 30 possible defenses. St. Louis sports attorney Dan Welsh sees a couple of these MLB pleadings as particularly problematic for Broshuis' lawsuit.
First, MLB claims that it qualifies for an exemption to the Fair Labor Standards Act for "seasonal, recreational, and entertainment establishments" that operate fewer than seven months a year.
"In the event that these baseball players are going to be deemed as seasonal, amusement, recreational and professional employees, then there goes the claim," says Welsh, who spent a significant portion of his career as in-house counsel for the owners' side of professional hockey.
A few cases in the 1990s challenged, with mixed results, the question of whether individual major- and minor-league teams qualify for the seasonal exemption. In 1995, a groundskeeper for the Sarasota White Sox lost a suit seeking overtime pay when the court ruled that he was subject to the seasonal employee exemption. More recently, though, an appeals court in 1998 ruled that the Cincinnati Reds was not a seasonal employer because the team maintained a year-round staff of 120 workers and therefore was subject to pay overtime to maintenance workers.
Yet Broshuis' suit is different from those because it's filed against MLB as a whole and not an individual team, which Saint Louis University law professor Marcia McCormick sees as an advantage.
"One of the really strong parts of this suit is that the contracts themselves are with Major League Baseball," she says. "That makes it much more likely that the exemptions that would apply to individual teams won't apply."
MLB also argues in court filings that "certain training, travel, and commuting" mentioned in Broshuis' suit don't qualify as hours worked under a player's contract.
"Some of the hours being claimed as hours for wages, Major League Baseball contends are not really work pursuant to the definition of the statute," notes Welsh. "We're talking about training, weight-lifting, and off-season work."
However, as Broshuis points out in the lawsuit, MLB's uniform player contract "obligates player[s] to perform professional services on a calendar year basis, regardless of the fact that salary payments are to be made only during the actual championship season."
Spillker prepares to enter a game from the bullpen.
Courtesy of Vince Spillker
At baseball's annual Winter Meetings last December, Stan Brand, Minor League Baseball's vice president, stood before team owners and delivered a passionate speech. Broshuis' lawsuit, warned Brand, was a threat to minor-league baseball, and the best way to stop it was to formally add the league's players to the few U.S. occupations (such as babysitters, home-based wreath makers, and newspaper delivery drivers) who are exempt from minimum wage and overtime pay under the Fair Labor Standards Act.
"I do not want to overstate the threat this suit presents," Brand told the baseball executives gathered in a San Diego ballroom. "But I think my honest assessment is that it is equally perilous for our future as the antitrust repeal was in the 1990s. So, once again, as I did then, I will you ask you to heed the clarion call, man the battle stations, and carry the message to Congress loudly and clearly: The value of grassroots baseball and our stewardship of the game needs to be protected against the onslaught of these suits."
Days later, Broshuis scoffs when discussing Brand's fiery comments.
"It seems absurd that a $9 billion industry should lobby Congress for an exemption to minimum-wage laws," says the attorney who, despite his notoriety from the baseball lawsuit, spends most of his days working on securities litigation.
Next to Broshuis' desk at the downtown St. Louis law firm of Korein Tillery hangs a plaque that recognizes his time as the editor-in-chief of the Saint Louis University Law Journal. Baseball memorabilia from his playing days -- his draft letter and a photo of him being awarded the co-pitcher of the year for the Giants' farm system in 2005 -- lend the office some additional character.
A trial date for Broshuis' lawsuit still is a long way off -- 2017 -- and may never make it in front of a jury.
"I can envision that Major League Baseball might be inclined to pay some dollars in exchange for avoiding the possibility of a ruling that might be unfavorable," suggests fellow attorney Dan Welsh.
Still, there's no denying that Broshuis' suit already has had an impact. Brand's speech is proof of that. So, too, are the e-mails and Facebook messages Broshuis continues to receive from former players asking if they can opt in to the suit and the notes from current players offering support, even though they're reluctant to participate.
"It's great any time I get one of those e-mails because it motivates me and reminds me why we're doing this," he says.
Since Broshuis first filed his suit last March, other legal challenges regarding the payment of athletes and team employees also have made waves. Last August, football players at Northwestern University won the right to unionize, which could ultimately lead to the payment of college athletes. In September, the Oakland Raiders' cheerleaders settled a class-action suit for $1.25 million in unpaid wages and won new contracts that will pay them an hourly rate of $9 an hour, up from the flat $125 per game. And just last December, attorneys in California filed another class-action suit against MLB challenging its antitrust exemption. The suit alleges that the reserve clause in minor-league baseball, which forces players to negotiate exclusively with the team that drafts them, illegally locks players into contracts and suppresses their wages.
That his former player has a leading role in the sea change currently washing over sports is of no surprise to Broshuis' high school coach, Chuck Powers.
"He's just one of those kids who's very intelligent on and off the field," says Powers, who compares Broshuis' demeanor on the mound to that of the Cardinals' high-intensity ace Adam Wainwright. "If he had his mind set to something, he was going to be successful. That's just his personality."
And while Broshuis prepares for the discovery phase of his wage lawsuit against Major League Baseball, he's ever mindful of what he originally set out to do when he was still a player -- create a minor-league union.
"I can only hope that this lawsuit is the first step toward progress in the ultimate goal," Broshuis says. "Hopefully this lawsuit emboldens guys to act collectively, that collectively they do have a larger voice than they do individually, and collectively they do have power."
He certainly has a supporter in former D-backs farm hand Bryan Henry, who recognizes that playing in the minors does not guarantee a trip to the bigs. But he adds that minor leaguers should have a voice.
"I'm not asking to be paid a million dollars in the minor leagues, but minimum wage would be nice," he says. "I can honestly say that when I left professional baseball, I was in more debt than when I went in."