medical benefits and a pension that formally sought to make amends for the individual invidious discrimination it had practiced intel nineteen forty seven by excluding african american players so i will discuss today my colbran and the class he represents are here today because major league baseball refuses to acknowledge that it is now engaging in an equally invidious form of reverse discrimination by did nine similarly situated caucasian players equal medical benefits and pensions additionally today have also addressed that during their participation in major league baseball thanks it's received  cortisone and other drugs in dangerous amounts by intentionally withholding information but nevertheless encouraging these players to continue playing baseball team doctors and trainers vitiated any consent to treatment  committed a battery title seven prohibits an employer from discriminating with respect to an individual's terms conditions or privileges of employment on the basis of race or color disparate treat an employer intentionally discriminates against an individual or class on the basis of a protected characteristic violates title seven here defendants admit that major league baseball voluntarily they've given each person who was forced to play in the negro league instead of the made you leave a million dollars would that adversely affect the major league players who got pretty good salaries but not a million dollars run i think the situation is somewhat different and the reason why the league players the african americans and the major league players in the class we represent are similarly situated i because of the requirements that are set forth in order for them to african american players to receive their pensions and medical benefits part of the requirement was for example that the players either participated in negro league teams for one year and then participated in any part of three seasons in major league or negro league teams here we have a similar situation in major league baseball who were not discriminated against exactly the theory that is the theory so if they just give them a lump sum payment for the years of discrimination they would have to give every white player and the this situation has not yet arisen what i would have a problem is fairly unusual to give these kinds of benefits to people who've been discriminated against it's not a bad idea we don't do we don't dispute that your honor we just feel that you  a privilege of employment and that to confer that benefit upon the former negro league players they should have also done that for the caucasian players as the u s supreme court identifying another is not necessarily way that is indeed the case your honor as as we have set forth and supporting decorations in opposition to the motion for summary judgment defendants made at least one medical benefit and pension payments to an in the major league who never played in the negro leagues who are african american who are within the class period there are i believe that is the case there may be one or two i don't believe there are they wouldn't leave victims of rac this sense in the sense they are so we are suggest we are saying they wouldn't be victims of race discrimination because they have not been precluded from playing in major league baseball however we are saying that they are part of the class and that they are entitled to equal treatment not because of their race if they were never precluded from playing in major league baseball but we're arguing your honor here is that they are now similarly situated because there are because there are at least as one african american former legal negro league player who is now receiving pensions and medical benefits from the defendant who has now played on a major league roster i can't find any determine whether or not the  when african american players were then permitted to play in the major leagues we're saying that classic stands up to one nine hundred seventy nine when the laws regarding the persians for pensions and medical benefits changed my question to you i theory how do you know that the i mean we look just to the health benefits in the pension benefits to see whether the treatment was equal we're going to look at their entire package when you have to take into account the fact that the people of major league baseball who may not be getting is good health benefit through pension benefits much higher salaries that's a very complicated issue your honor because leagues they actually played substantially fewer games than did the players in major league baseball and the players in the negro leagues were allowed to participate in other games outside of sanctioned negro league play while by the by contrast the major league baseball players were not entitled to play for any other team but the team that they were the roster and for whom they played and so their compensation in the form of benefits merely brings them up to the same level or even leave the middle lesser level or exceeds would be difficult to calculate your honor yes but that is to the extent that that were an issue of concern for the court it could be resolved at trial this case was dismissed merely on summary judgment saying that the parties were not similarly situated whether whether the payment and whether the total compensation of for example the cortisone and the other steroids and had they been informed and had they known that their lives were being placed at risk then they would not have we have not alleged a conspiracy theory where whereby major league baseball goes into a into a back room with the trainers and the doctors but your honor i believe as a matter of major league baseball has is running a business in short and what they're trying to do is make sure that that business continues to run by having players play that is accomplished in some some measure by giving steroid injections cortisone injections to keep players out on the field by doing so players who are more susceptible to injuries and did provide the injections to have the players continue to play ball and to avoid the players taking time off from the game  also cited two evidence in the record your honor that the players were unaware of the the risks of obtaining numerous cortisone shots at the time the trainers and the doctors knew that were injecting the players with cortisone shots of three shots per week sometimes up to sixty shots per year and the maximum shot number of cortisone shots a player in any individual should ever obtain is perhaps ten over the course of a lifetime so if the trainers clearly were aware of the difficult excuse me of the over prescription of the steroids if they were providing  number of cortisone shots they had whether there is one affidavit specifically identifying that a player received sixty or more cortisone shots i don't recall i do know that it is set forth in the record but this is a situation also where as if the just to conclude that the team driving doctors and trainers knew that the risks were hand but chose to subject the players to the risk that there are t is a problem for you i don't believe it is your honor for the reasons that we've set forth in our brief richard first the players as set forth in the affidavits have testified that they were unaware that the players from the african american leagues or excuse me the negro leagues were receiving pensions and benefits and tell august of two thousand and three additionally your honor we do not we feel that did not receive medical or pension benefits under plans excuse me collectively bargain plans that affable to employ the ease of major league baseball clubs they do not receive those benefits not because they are quote caijing but because they did not qualify under the terms of those plans and collective bargaining agreements there's there's no dispute that during the period during which the pla and that was a service acquired requirement and during the period that that plaintiffs focused on nine hundred forty seven thousand one hundred seventy nine that applied to all employees player employees of major league baseball clubs caucasian or african american so yes judge fogel i certainly believe there are and i can't give you the number but my sports fan background suggests to me that there are a lot more than one or two african american players who never played in the negro leagues that is who joined the major league baseball in the fifty's or sixty's and lasted perhaps for something shy of four years and so did not receive not receive these benefits that are that are that are in the are simply not hide to employment in major league baseball they are payments that are made because these individuals played in the negro leagues period that is the of the eligibility requirement and in providing to those famous major league baseball i respectfully submit has not acted as an employer these individuals were not employed by major league baseball when they played in the negro leagues they have made these payments on a voluntary quite as i chair a double basis in order to provide least some modest redress for refusal to employ this this group  they both have to be employees well in order to state a claim i respectfully submit under title seven you have to have employment discrimination and there cannot be any discrimination and violation of title seven unless there and they're going to make twice as much as you do i would probably be discrimination i was there and violation of title i would agree the label the label is not important your honor i don't need to suggest that labeling an african american an employee and for press discrimination certainly certainly certainly and certainly in circumstances that under the cases that are not exactly analogous by the the affirmative action cases with these plans with fully meet all of that the standards the manifest imbalanced and was certainly there's certainly no unnecessarily traveling on the rights of the majority as your honor pointed out that who's here th leaders were certainly benefited the plate this year received also which they were entitled as a matter of their employment by major league baseball and the judge roll into this point similarly there can't be any claim that these groups are league players were denied the opportunity ever to qualify for a major league baseball slash employee eventually because they were think with some degree of of reasonable as they were advantaged by the exclusion of african americans they'd probably have played longer in the major leagues and they would have otherwise had there been greater competition but that's not even the central point the point is they had every opportunity to qualify to render the service that would make them eligible for pensions their failure to receive those pensions has nothing to do with their race only to do with their eithe similarly situated i would suggest that in this case it really is looking at the events of the one nine hundred forty seven or at least from the retrospective look and i say that because i think it also demonstrates  the absence of discrimination at the very same time in one thousand nine hundred seven that is when major league baseball adopted this supplemental income plan for the former negro league players it adopted a supplemental income plan for players who had been in baseball major league baseball prior to one nine hundred forty seven why why was that done both of those groups never had an opportunity to qualify to to render the service eligible for a major league pension ok in one scene in one instance the pre forty seven caucasians because there was no pension and the other the negro leaders because they were denied employment but i think i think that if there is any group that is close to similarly situated here it is the it is the three forty seven caucasian players who get these i think will benefit that is there was a decision made to provide supplemental income benefits to players who had been in the negro leagues prior to nine hundred forty eight that the find for all time the total parameters of the potential beneficiaries of this and not to provide similar benefits to people who were made very very no you didn't have to provide the benefits well actually the same time the benefits were provided to the court to a that that's when that's when this class knew they were not going to get the benefit or should i certainly should have known and i don't want to burden the court with the reasons why we believe they should have known i think that's pretty well set forth in our brief just very quickly on the battery i think california law may be unclear but i don't believe it's unclear that that we have there is consent to a touching that's not of that or if other than negligence to be had here has to be something on the order from yes yes and that's that you got to know that you're giving somebody something dangerous in the town and there is no showing of any affirmative misleading here indeed there are that's and i do know that and one thing that i couldn't get from the record here is what the state of knowledge about steroids was at the time that these events occurred but but putting that aside for a second if you will if you assume that a doctor knows that giving that might be on the california law but i think the cases are more restrictive than that judge at least the ones that have decided against us the only two circumstances that the courts just to keep a few quick points around or i just want to make clear that in terms of the similarly situated analysis we have at least one former negro league player who played in major league baseball for less than a vesting period and therefore have to be accorded equally as per title seven and as the california excuse me the united states supreme court case king has identified a benefit that is in part and parcel that it is part and parcel of an employment relationship may not be doled out in the discriminatory fashion i think there would be three under employment contract simply not to provide the benefit of all to all he major leagues major league baseball's decision to include that benefit for former negro league players hells that they do so here for our class how do you view your battery that that after extensive use of these steroids they suffered extensive injuries and that they were not notified as to the effects of the steroids nor were they notified why the physicians were giving the steroids to the individuals as a means of keeping them in the game other allegations of the doctors were aware of the harmful effects of the yes there are definitely