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Thursday, November 01, 2007
Baseball's Next Antitrust/Gender Discrimination Nightmare?

Ria Cortesio, pro baseball's only female umpire, was fired earlier this week. Cortesio -- the first woman to umpire a game involving major league teams in twenty years (an exhibition game this year between the Cubs and Diamondbacks) -- was the top-rated double-A umpire at the beginning of this year. Apparently, there were no vacancies in triple A, and after 9 years at the double-A level Cortesio's time was up (her ranking also apparently dropped this year). Her dream of being the first woman to call a regular season major league game appears dead. Mike blogged about Cortesio earlier this year.

Cortesio has not yet decided whether to file a lawsuit, but seems to be considering it.

Pam Postema, a triple A umpire fired in 1989, did sue baseball a few years back after she was fired. Postema's claims included gender discrimination and an antitrust claim (under New York common law). No doubt to the chagrin of MLB, the court did not dismiss the antitrust claims on the basis of baseball's supposed antitrust exemption. See 799 F.Supp. 1475 (SDNY 1992). Instead, the court reasoned that the Supreme Court's last opinion on baseball's antitrust exemption, Flood v. Kuhn, limited the exemption to league structure and the reserve system.

The case settled out of court, and Postema agreed not to disclose the terms of the settlement. It would be safe to infer that she got paid big time. But what motivated the league to settle? Was it the strength of her underlying gender discrimination claim? (Although Postema was the victim of considerable abuse during her time as an umpire, attributing that abuse to the major leagues, which were not her employer, might have been tough). My view is that baseball was far more worried about the antitrust claim. Although Postema might not have won, her case could have generated an appellate decision on the scope of baseball's antitrust exemption and might even have found its way up to the Supreme Court. The fate of the exemption at that level would likely be in doubt. Baseball probably felt it wasn't worth the risk.

Should Cortesio choose to sue, she would be well advised to hire Postema's lawyer and include an antitrust claim in her suit.

Thanks to the some of the students in my University of Utah sports law class for bringing this to my attention in our discussion of Pam Postema's case today.


Geoff: Great post. Two items of further note.
First, Pam Postema's antitrust lawsuit was filed in 1992 before passing of the Curt Flood Act -- a really weird piece of litigation that leaves uncertainty about the right for those other than MLB players to sue MLB under antitrust law. If Ria Cortesio decides to bring an antitrust suit and decides to hire Pam Postema's lawyers, those lawyers will face this new wrinkle.

Second, MLB's decision to settle the Postema lawsuit seems to fall into a small pattern of cases involving MLB trying to prevent judges from deciding the scope of MLB's antitrust exemption in matters where the alleged anticompetitive conduct may touch upon ethncity or gender. Another case in this mini-pattern is MLB's decision to settle with plaintiffs Piazza & Tirendi in their antitrust suit, where Piazza & Tirendi alleged they were boycotted from baseball ownership based on their Italian-American heritage.

Blogger Marc Edelman -- 11/01/2007 7:56 PM  

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