MLB fights class certification in overtime dispute

Major League Baseball claims a group of minor league players are now distancing themselves from a survey used to justify recertifying the plaintiff class in a lawsuit over unpaid overtime.

Retired baseball player Aaron Senne filed the lawsuit in 2014 on behalf of a group of minor league players who said they'd been underpaid for their time under the Fair Labor Standards Act. The class was initially decertified in 2016 after Northern District Judge Joseph C. Spero found that a survey conducted by an expert witness for the plaintiff had initially been found inadmissible.

Spero later recertified the class after finding that a new survey, which reportedly polled over 700 players, met the court's standards. But MLB claims in a reply filed Wednesday that the survey was a "classic bait-and-switch," used to "smooth over" the evidence weighing in favor of individual claims.

Class certification "rises and falls" on the survey, MLB claims, yet even the plaintiffs acknowledge the survey results varied wildly and did not measure team-related activities. Senne et al. v. Kansas City Royals Baseball, et al., 17-16245 (9th Cir., filed Apr. 5, 2018).

MLB claims the plaintiffs are putting forward thousands of team schedules as evidence necessary to show damages now that the survey "is not representative of what they need to prove."

MLB said approximating workday length based on these schedules would require juries to determine which team the class member played for and what time the team's games were scheduled, among other things.

"Every step of that analysis is individualized and can be done only on a player-by-player basis, which defeats predominance," Elise M. Bloom, a Proskauer Rose LLP attorney and counsel to MLB, wrote in the Wednesday filing.

Bloom and Daniel Warshaw, a Pearson Simon & Warshaw LLP attorney serving as counsel to the plaintiffs, did not respond to requests for comment Friday.

Glen A. Rothstein, a sports and entertainment attorney at Rothstein Law APC not involved in the matter, said there's "a substantial amount of intuitive and common sense appeal" to the MLB's argument that the players' work schedules varied too greatly for an average to be accurate.

"The players' 'continuous workday' survey theory of employment, presented to the lower court whereby workdays are measured simply by when they arrive and leave the field, is subject to attack because time spent at the ballpark is often divided between a number of activities -- some of which are compensable, some of which are not," Rothstein said.

He said the plaintiffs' submission of myriad team schedules to establish commonality of interest suitable for class action is undermined by not easily tracked variables, like the different positions of the players.

"One team might require all players to show up at 1 for a game at 7, whereas another team might not ask position players to report until 2, or might not require pitchers to report until 3 to allow extra rest," Rothstein said.