Amicus Curiae Brief — Tri-City ValleyCats, Inc., et al., Petitioners v. The Office of the Commissioner of Baseball
Supreme Court briefOct 17, 2023
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No. 23-283
IN THE
Supreme Court of the United States
___________
TRI-CITY VALLEYCATS, INC., AND ONEONTA ATHLETIC
CORPORATION,
Petitioners,
v.
THE OFFICE OF THE COMMISSIONER OF BASEBALL,
Respondent.
___________
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Second Circuit
___________
BRIEF OF AMICUS CURIAE MAJOR LEAGUE
BASEBALL PLAYERS ASSOCIATION IN SUPPORT OF PETITIONERS
___________
BRUCE S. MEYER
IAN M. PENNY
MATTHEW R. NUSSBAUM
JEFFREY D. PERCONTE
MAJOR LEAGUE BASEBALL
PLAYERS ASSOCIATION
12 East 49th St.
New York, NY 10017
(212) 826-0808
VIRGINIA A. SEITZ*
SIDLEY AUSTIN LLP
1501 K STREET, NW
Washington, D.C. 20005
(202) 736-8000
vseitz@sidley.com
Counsel for Amicus Curiae
October 17, 2023
*Counsel of Record
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................
ii
STATEMENT OF INTEREST OF AMICUS CURIAE MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION ........................................
1
SUMMARY OF ARGUMENT .............................
3
ARGUMENT ........................................................
4
I. THE BASEBALL EXEMPTION SHOULD
BE ELIMINATED BECAUSE IT IS
WRONG AND HAS SIGNIFICANT ANTICOMPETITIVE CONSEQUENCES ............
4
A. The Genesis of the Curt Flood Act and Its
Significance In this Case .........................
6
B. Eliminating the Baseball Exemption
Would have Pro-Competitive Benefits in
the Baseball Industry ..............................
13
CONCLUSION ....................................................
16
CASES
ii
TABLE OF AUTHORITIES
Page
Brown v. Pro Football, Inc., 518 U.S. 231
(1996) ......................................... ...... 2, 4, 14, 15
Butterworth v. Nat’l League of Pro. Baseball
Clubs, 644 So. 2d 1021 (Fla. 1994) ...........
7
Cont’l T.V., Inc. v. GTE Sylvania Inc., 433
U.S. 36 (1977) ............................................
5
Copperweld Corp. v. Indep. Tube Corp., 467
U.S. 752 (1984) ..........................................
5
Fed. Baseball Club of Balt. v. Nat’l League of
Pro. Baseball Clubs, 259 U.S. 200
(1922) .........................................................
1
Flood v. Kuhn, 407 U.S. 258 (1972) ........ 1, 4, 6, 11
Haywood v. Nat’l Basketball Ass’n, 401 U.S.
1204 (1971) ................................................
5
Kimble v. Marvel Ent., LLC, 576 U.S. 446
(2015) ......................................................... 5, 12
Leegin Creative Leather Prods., Inc. v.
PSKS, Inc., 551 U.S. 877 (2007) ...............
5
Major League Baseball v. Crist, 331 F.3d
1177 (11th Cir. 2003) ................................
11
Minn. Twins P’ship v. State ex rel. Hatch,
592 N.W.2d 847 (Minn. 1999) ...................
7
NCAA v. Alston, 141 S. Ct. 2141 (2021) ......
4
NLRB v. Katz, 369 U.S. 736 (1962) .............
14
Piazza v. Major League Baseball, 831 F.
Supp. 420 (E.D. Pa. 1993) .........................
7
Radovich v. Nat’l Football League, 352 U.S.
445 (1957) ..................................................
5
State Oil Co. v. Kahn, 522 U.S. 3 (1997) .....
5
Toolson v. N.Y. Yankees, Inc., 346 U.S. 356
(1953) .........................................................
1
United States v. Int’l Boxing Club of N.Y.,
348 U.S. 236 (1955) ...................................
5
iii
TABLE OF AUTHORITIES – continued
STATUTES
15 U.S.C. § 26b(a) .........................................
15 U.S.C. § 26b(b) .........................................
Page
2, 9
9
LEGISLATIVE HISTORY
144 Cong. Rec. S9496 (July 30, 1998)..........
10
144 Cong. Rec. S9621 (July 31, 1998).......... 10, 11
S. Rep. No. 104-231 (1996) ...........................
11
SCHOLARLY AUTHORITIES
Ed Edmunds, Over Forty Years in the OnDeck Circle: Congress and the Baseball
Antitrust Exemption, 19 T. Marshall L.
Rev. 627 (1994) ..........................................
William N. Eskridge, Overruling Statutory
Precedent, 76 Geo. L. J. 1361 (1987-88) ...
S. Fehr, The Curt Flood Act and Its Effect on
the Future of the Baseball Antitrust Exemption, 14 Antitrust 25 (Spring 2000) ...
N. Grow, Reevaluating the Curt Flood Act of
1998, 87 Neb. L. Rev. 747 (2009) ..............
M.R. McCarthy, Revenue Sharing in Major
League Baseball: Are Cuba’s Political
Managers on Their Way Over Too? 7
Vand. J. Ent. & Tech. L. 555 (2020) .........
Stephen F. Ross, Reconsidering Flood v.
Kuhn, 12 U. Miami Ent. & Sports L. Rev.
169 (1995) ..................................................
5
5
8
7
7
5
OTHER AUTHORITIES
34 Weekly Comp. of Pres. Docs. (Oct. 27,
1998) ..........................................................
11
iv
TABLE OF AUTHORITIES – continued
In re Nat’l League & Am. League Clubs &
MLBPA, 66 Lab. Arb. 101 (1975), aff’d
Kan. City Royals v. MLBPA, 532 F.2d 615
(8th Cir. 1976) ...........................................
Nat’l League of Pro. Baseball Clubs, 1997
Basic Agreement (Mar. 1997) ....................
Nat’l League of Pro. Baseball Clubs, 20222026 Basic Agreement, https://bit.ly/3Lpo
Uqs (last accessed Sept. 28, 2023) ............
Page
6
8
14
1
STATEMENT OF INTEREST OF AMICUS CURIAE MAJOR LEAGUE BASEBALL PLAYERS
ASSOCIATION1
Since 1966, the Major League Baseball Players Association (“MLBPA”) has represented professional
baseball players signed to a Major League Uniform
Players’ Contract for collective bargaining with Major
League Baseball and its 30 Clubs. In August 2022,
MLBPA also became the exclusive collective bargaining representative for the approximately 5,500 Minor
League players employed by the Major League Clubs.
On March 31, 2023, Minor League players ratified an
historic first collective bargaining agreement, achieving significant improvements in player salaries and
other terms and conditions of employment.
For decades, professional baseball players were subject to Major League Baseball’s unilaterally-imposed
“reserve system” and other restrictions on players’
freedom of contract, which were protected by this
Court’s judicially-created baseball exemption from the
federal antitrust laws. See Flood v. Kuhn, 407 U.S.
258, 282 (1972); Fed. Baseball Club of Balt. v. Nat’l
League of Prof. Baseball Clubs, 259 U.S. 200 (1922);
Toolson v. N.Y. Yankees, Inc., 346 U.S. 356 (1953) (per
curiam). From its inception, MLBPA has worked to
eliminate or limit the scope of Major League Baseball’s
antitrust exemption and supported the efforts of others aggrieved by the exemption. MLBPA’s consistent
position has been that Major League Baseball should
1 Pursuant to Supreme Court Rule 37.2, amicus curiae states
that no counsel for any party authored this brief in whole or in
part and no entity or person, aside from amicus curiae, its members, or its counsel, made any monetary contribution intended to
fund the preparation or submission of this brief. Both parties received notice of the filing of this brief as required in Rule 37.2.
2
not have an exemption and that the exemption harms
players, fans, cities, states, and other businesses.
On October 27, 1998, MLBPA’s efforts to eliminate
the exemption as applied to Major League players succeeded when Congress passed the Curt Flood Act of
1998. See 15 U.S.C. § 26b(a). The Act makes all matters “directly relating to or affecting employment of
major league baseball players” subject to the federal
antitrust laws. Id.
But MLBPA’s interests continue to be adversely affected by baseball’s special exemption from the antitrust laws. MLBPA now represents Minor League
players.2 Major League Baseball and its 30 Clubs’ ability to engage in anti-competitive conduct in their management of the Minor Leagues threatens Minor
League players’ interests. MLB and its Clubs can seek
to engage in further franchise contraction (eliminating
teams and jobs) without regard to anti-competitive intent and effect. Moreover, under this Court’s decision
in Brown v. Pro Football, Inc., 518 U.S. 231 (1996), but
for the baseball exemption, Minor League players
would, like other professional athletes, still have access to their antitrust rights for restraints in the labor
market in the event they choose at some point no
longer to be represented by a union in collective bargaining. Id. at 235-36.
In addition to its concrete interests, MLBPA offers a
unique perspective to this Court on the Curt Flood Act.
2 Specifically, MLBPA represents all players who are employed
by one of the 30 Major League Clubs and signed to a current Minor League Uniform Player Contract, excluding inter alia players
who are members of MLBPA’s existing bargaining unit of Major
League players (that is, players on a 40-man roster of a Major
League Club or one a Major League injured or inactive list), and
players assigned to Minor Leagues located entirely outside the
United States and Canada.
3
That legislation resulted from Major League Baseball
and MLBPA’s agreement, after the season-ending
work stoppage that cancelled the 1994 World Series,
to pursue removal of the exemption from Major League
Baseball’s labor market. The Act is frequently mischaracterized as proof that Congress acquiesced to the
baseball exemption as applied to other areas. MLBPA
will show that Congress’s intent—reflected in the Act’s
unambiguous text—was quite the opposite.
SUMMARY OF ARGUMENT
MLBPA supports the Petition’s request that this
Court reconsider its creation of the baseball exemption, which is acknowledged both to be wrong and effectively to license unlawful conduct. MLBPA’s brief
focuses on two points that support this Court’s review.
First, MLBPA can offer a distinctive perspective on
the origins, purposes, and implications of the Curt
Flood Act for the baseball exemption, because the legislation was the result of a collective bargaining agreement between MLBPA and Major League Baseball.
The history leading up to Congress’s enactment of the
Curt Flood Act and the text of the Act itself eviscerate
the rationale for citing the Act as support for statutory
stare decisis in this case. The Act expressly states that
it should not be interpreted to have any implications
beyond elimination of the antitrust exemption in the
market for Major League players’ services. This history of the Act calls out ongoing litigation about
whether the exemption is limited to the reserve system
and makes clear that Congress is not weighing in on
the courts’ assessment of that question and wishes its
action to have no effect on that judicial analysis.
Second, eliminating the baseball exemption would
result in significant pro-competitive benefits in the
baseball industry, including in the market for player
4
services, as this case illustrates. In 2020, Major
League Baseball took control over previously independent Minor Leagues; and, as a result, roughly 40
Minor League clubs lost their affiliation with Major
League Clubs. They and the communities supporting
them suffered significant harm as a result of this anticompetitive conduct. Numerous Minor League players
for these clubs lost their jobs.
In addition, if Minor League players were to choose
in the future to cease being represented by a union, or
if Major League Baseball were otherwise to take action
that affected players outside of the collective bargaining process, Major League Baseball would likely lose
its nonstatutory labor exemption under this Court’s
decision in Brown, 518 U.S. 231. In that situation, if
the judicially-created baseball exemption were eliminated, employees would be able to avail themselves of
the same antitrust rights as employees in any other
industry. Absent that change, Major League Baseball
can engage in anticompetitive conduct in the market
for players’ services with impunity.
ARGUMENT
I. THE BASEBALL EXEMPTION SHOULD BE
ELIMINATED BECAUSE IT IS WRONG AND
HAS SIGNIFICANT ANTI-COMPETITIVE
CONSEQUENCES
MLBPA endorses the Petition’s demonstration that
the baseball exemption from the federal antitrust laws
is undisputedly wrong as a matter of statutory interpretation. It is also bad for baseball, baseball fans and
affected communities, as well as for all economic sectors professional baseball affects. It is universally
acknowledged to be error, including by this Court. See
NCAA v. Alston, 141 S. Ct. 2141, 2159 (2021); (“aberrational” (cleaned up)); Flood, 407 U.S. at 282 (an
5
“anomaly”); Haywood v. Nat’l Basketball Ass’n, 401
U.S. 1204 (1971) (basketball enjoys no antitrust exemption); Radovich v. Nat’l Football League, 352 U.S.
445 (1957) (refusing to give professional football an antitrust exemption); United States v. Int’l Boxing Club
of N.Y., 348 U.S. 236 (1955) (applying antitrust laws
to boxing); Stephen F. Ross, Reconsidering Flood v.
Kuhn, 12 U. Miami Ent. & Sports L. Rev. 169 (1995);
Ed Edmunds, Over Forty Years in the On-Deck Circle:
Congress and the Baseball Antitrust Exemption, 19 T.
Marshall L. Rev. 627 (1994).
The statutory stare decisis rationale that has
propped up the baseball exemption for decades can no
longer bear its weight. This Court has increasingly
made clear that, with respect to federal statutes that
create common law frameworks for judicial lawmaking—i.e., statutes like the Sherman Act—statutory
stare decisis is a relatively weak presumption. The
Court now “view[s] stare decisis as having less-thanusual force in cases involving the Sherman Act.” Kimble v. Marvel Ent., LLC, 576 U.S. 446, 461 (2015). See,
e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc.,
551 U.S. 877 (2007) (overruling Sherman Act precedent); State Oil Co. v. Kahn, 522 U.S. 3, 20-22 (1997)
(same); Copperweld Corp. v. Indep. Tube Corp., 467
U.S. 752 (1984) (same); Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977) (same). See also Petition
at 4; William N. Eskridge, Overruling Statutory Precedent, 76 Geo. L. J. 1361, 1376-81 (1987-88).
Moreover, as MLBPA details below, any argument
that the Curt Flood Act reflects acquiescence by Congress in the continued existence of the exemption is fatally undermined by the text, purpose and legislative
history of the Act. In light of that reality, and the con-
6
tinuing anticompetitive harm that the baseball exemption inflicts on players, fans and communities, this
Court should correct this error in its caselaw now.
A. The Genesis of the Curt Flood Act and Its
Significance In this Case
In light of the Curt Flood Act and its history described below, this Court should reassess its decision
in Flood v. Kuhn to hold its nose and allow the baseball
exemption to survive based on Congressional acquiescence. In fact, Congress has made clear that courts are
free to proceed to determine the scope, if any, of baseball’s exemption.
From 1966 until the effective date of the Curt Flood
Act of 1998, MLBPA represented private sector employees who did not have the protection of federal or
state antitrust laws under Federal Baseball Club and
Toolson. As a result, starting in 1879, players were
subject to professional baseball’s reserve clause. The
reserve clause “centers in . . . the confinement of the
player to the club that has him under the contract; the
assignability of the player’s contract; and the ability of
the club annually to renew the contract unilaterally,
subject to a stated salary minimum.” Flood, 407 U.S.
at 259 n.1.
For decades, in the absence of antitrust protection,
MLBPA sought for players the basic right of freedom
to contract through collective bargaining and the
grievance arbitration process. In 1975, through grievance arbitration, MLBPA won a limited right of “free
agency” for players. See In re Nat’l League & Am.
League Clubs & MLBPA, 66 Lab. Arb. 101 (1975), aff’d
Kan. City Royals v. MLBPA, 532 F.2d 615 (8th Cir.
1976). This right has been codified and modified in various forms in every ensuing collective bargaining
agreement, and MLBPA has assiduously protected it.
7
See, e.g., In Matter of Arbitration Between the MLBPA
and the 26 Major League Baseball Clubs, 86-2, 87-3,
and 88-1 (challenging Major League Baseball owners’
conspiracy artificially to suppress player salaries by
colluding to eliminate bidding on free agents).
MLBPA maintained its opposition to the baseball exemption throughout this period. It supported the lawsuit that led to this Court’s decision in Flood v. Kuhn;
and after Flood was decided, it supported parties seeking to limit the scope of the baseball exemption to the
reserve system. The courts in Piazza v. Major League
Baseball, 831 F. Supp. 420 (E.D. Pa. 1993), and Butterworth v. Nat’l League of Pro. Baseball Clubs, 644 So.
2d 1021 (Fla. 1994), concluded that the exemption is
so limited, while the Minnesota Supreme Court held
that it was not. See Minn. Twins P’ship v. State ex rel.
Hatch, 592 N.W.2d 847 (Minn. 1999).
There can be no argument that the applicability of
the baseball exemption somehow promotes labor
peace. Throughout the years leading up to the passage
of the Curt Flood Act, Major League Baseball and
MLBPA had tumultuous labor relations. Against the
backdrop of the baseball exemption, eight times between 1972 and 1995, the parties’ collective bargaining
agreement—known as the Basic Agreement—expired,
and eight times, Major League Baseball experienced
either a strike or a lockout. See M.R. McCarthy, Revenue Sharing in Major League Baseball: Are Cuba’s Political Managers on Their Way Over Too? 7 Vand. J.
Ent. & Tech. L. 555, 558-60 (2020). This pattern was
broken after passage of the Curt Flood Act.3
3 See N. Grow, Reevaluating the Curt Flood Act of 1998, 87 Neb.
L. Rev. 747, 753 (2008) (“after averaging one work stoppage less
than every three years from 1972 to 1996, MLB has not experienced a single strike or lockout in the eleven years since CFA’s
passage”).
8
The August 1994 strike, which resulted in the cancellation of the rest of the 1994 season and its World
Series, proved a turning point for baseball. In the aftermath of that strike, Major League Baseball and
MLBPA agreed jointly to seek the elimination of baseball’s antitrust exemption in the market for Major
League players’ services. MLBPA, however, wanted to
ask Congress to eliminate the baseball exemption in
that labor market without creating any implication
that Congress had endorsed the continuing application
of the baseball exemption to other baseball-related
markets. See, e.g., S. Fehr, The Curt Flood Act and Its
Effect on the Future of the Baseball Antitrust Exemption, 14 Antitrust 25, 27-28 (Spring 2000).
The result of these twin goals was a provision in the
parties’ 1997 Basic Agreement. That provision required the league and union to work together “to pass
a law that will clarify that Major League Baseball
Players . . . have the same rights under the antitrust
laws as do other professional athletes, . . . along with
a provision that makes it clear that the passage of that
bill does not change the application of the antitrust
laws in any other context or with respect to any other
person or entity.” Nat’l League of Pro. Baseball Clubs,
1997 Basic Agreement, Article XXVIII (Mar. 1997).
This provision of the Basic Agreement came to fruition in the Curt Flood Act, where the language of the
Basic Agreement is repeated almost verbatim in the
Act’s purpose section:
Major league baseball subject to antitrust
laws.
Subject to subsections (b) through (d) [of this section], the conduct, acts, practices, or agreements
of persons in the business of organized professional major league baseball directly relating to or
9
affecting employment of major league baseball
players to play baseball at the major league level
are subject to the antitrust laws to the same extent such conduct, acts, practices, or agreements
would be subject to the antitrust laws if engaged
in by persons in any other professional sports
business affecting interstate commerce.
15 U.S.C. § 26b(a). In addition, the Act states:
No court shall rely on the enactment of this section as a basis for changing the application of the
antitrust laws to any conduct, acts, practices or
agreements other than those set forth in subsection (a).
Id. § 26b(b). Put differently, the Curt Flood Act—the
culmination of a process agreed to in bargaining between the League and MLBPA—was intended to have
no effect one way or the other on the question whether
and to what extent professional baseball’s antitrust exemption exists in areas not “directly relate[d] to or affect[ing]” the employment of Major League players.
Senator Hatch made this clear on the Senate floor:
This amendment, while providing major league
players with the antitrust protections of their colleagues in the other professional sports, such as
basketball and football, is absolutely neutral with
respect to the state of the antitrust laws between
all entities and in all circumstances other than in
the area of employment as between major league
owners and players. Whatever the law was the
day before this bill passes in those other areas it
will continue to be after the bill passes. Let me
emphasize that the bill affects no pending or decided cases except to the extent a court would consider exempting major league clubs from the antitrust laws in their dealings with major league
10
players.
144 Cong. Rec. S9496, S9496 (July 30, 1998). At the
time of Senator Hatch’s floor statement, both Piazza
and Butterworth had been decided and Minnesota
Twins Partnership was pending. The question whether
the baseball exemption was restricted to the reserve
system was in active litigation, and Senator Hatch
thus explained why a “bill that ought to be rather simple to write goes to such lengths to emphasize its neutrality.” Id. See also id. (“the parties and the Committee agree that Congress is taking no position on the
current state of the law one way or the other”); id. at
S9497 (“Nor can the courts use the enactment of this
Act to glean congressional intent as to the validity or
lack thereof of [actions described in subsection (b) of
the Act]”).
Senator Wellstone was equally clear in a colloquy
with the Act’s co-sponsors Senators Hatch and Leahy:
Several lower courts have recently found that
baseball currently enjoys only a narrow exemption from antitrust laws and that this exemption
applies only to the reserve system [citing, inter
alia, Piazza and Butterworth]. It is my understanding that [the Curt Flood Act] will have no effect on the courts’ ultimate resolution of the scope
of the antitrust exemption on matters beyond
those related to owner-player relations at the major league level.
144 Cong. Rec. S9621, S9621 (July 31, 1998). Senator
Leahy responded that “the bill has no impact on the
recent decisions in federal and state courts in Florida,
11
Pennsylvania and Minnesota concerning baseball’s
status under the antitrust laws.” Id. 4
Finally, in his presidential signing statement, President Clinton confirmed that the Act “in no way codifies or extends the baseball exemption.” 34 Weekly
Comp. of Pres. Docs. 2150 (Oct. 27, 1998).
In Flood, this Court relied on Congressional inaction
in declining to overrule a decision it clearly believed
was wrong. 407 U.S. at 268. The Curt Flood Act deeply
undermines any argument for such reliance. It terminates the baseball exemption for the market for Major
League players’ services. This was the subject of Flood.
Indeed, that decision opens with Justice Blackmun’s
(in)famous tribute to “The Game” which focuses the
stability of team rosters and traditions, resulting from
the unfair “reserve system” that held players captive
to specific teams. If that wholly unfair labor arrangement was, indeed, part of the tradition of baseball,
surely the Curt Flood Act banished that rationale for
good.
But the Curt Flood Act goes further. It was enacted
during the pendency of significant litigation about
whether the baseball exemption was limited to the reserve system5, and Congress went out of its way to
4 See also S. Rep. No. 104-231, at 15 (1996) (“The Committee
wishes to make clear that by supporting these particular modifications of baseball’s judicially created antitrust exemption in S.
627, it does not intend to imply that more comprehensive change
is not also justified – or to imply that the courts should not act
decisively themselves to limit further baseball’s exemption in appropriate cases. Indeed, a Federal court and the highest court of
a State have already taken such action [citing Piazza and Butterworth].”)
5 MLBPA acknowledges that courts have since disagreed with
Piazza, see, e.g., Major League Baseball v. Crist, 331 F.3d 1177
(11th Cir. 2003). But what is critical is that at the time the Curt
12
make clear that it did not want its action to have any
effect at all on that litigation. Instead, Congress left to
the courts the question of the scope of the baseball exemption and whether enactment of the Curt Flood Act
effectively eliminated it (as it would if it were confined
to the reserve system). Far from demonstrating acquiescence to the baseball exemption, the history of Congress’s enactment of the Curt Flood Act frees this
Court from concerns about Congressional acquiescence to its prior erroneous decision, and allows this
Court to consider the issue on its merits.
Applying statutory stare decisis to the decisions creating the baseball exemption does not achieve the
goals that doctrine serves. It does not “promote[] the
evenhanded, predictable, and consistent development
of legal principles . . . .” Kimble, 576 U.S. at 455. No
one would rely on the legal principles or lack thereof
that form the premises of the baseball exemption. It
does not “foster[] reliance on judicial decisions;” id. instead, practitioners, academics, and those affected by
the industry’s anticompetitive conduct wonder why
baseball among all industries remains above the law.
And it does not “contribute[] to the actual and perceived integrity of the judicial process,” id., when the
Court has acknowledged and refused to correct its error, and allowed one highly visible entity to get away
with otherwise unlawful conduct. As just shown, none
of the public benefits of stare decisis flow from allowing
the baseball exemption to continue, particularly in
light of this Court’s general willingness to overturn
longstanding precedent it views as wrong.
Flood Act passed, Congress was aware of the cases holding that
the baseball exemption was confined to the reserve system and
explicitly instructed that its enactment of the Curt Flood Act
should not be used to affect that judicial decision making.
13
B. Eliminating the Baseball Exemption
Would have Pro-Competitive Benefits in
the Baseball Industry
Although the Curt Flood Act eliminated the baseball exemption in the market for the services of Major
League players, the exemption, as long as it survives,
will continue to have a pernicious effect on baseball
players, fans, and communities, and actual and potential effects on Minor League players in at least two
ways.
First, Minor League baseball players—as well as
communities across the country—have suffered and
may continue to suffer from Major League Baseball
and its Clubs’ anticompetitive agreements artificially
to limit the number of Minor League affiliates.
Indeed, this case provides an excellent illustration of
anticompetitive actions by Major League Baseball and
its Clubs that affect Minor League Clubs and players
that are facilitated by the baseball exemption. In 2020,
Major League Baseball took control over previously independent Minor Leagues. The 30 Clubs agreed that
each Club would have exactly four Minor League affiliates, handpicked by Major League Baseball. See Pet.
13. Roughly 40 Minor League clubs lost their affiliation; they and the communities supporting them suffered significant harm. Id. The negative effects on
players are obvious: There are significantly fewer jobs
for Minor League players than existed before Major
League Baseball unilaterally contracted 40 clubs. If
the baseball exemption is allowed to continue, Major
League Baseball and its Clubs will undoubtedly seek
to rely on it in further efforts to contract the number
of Minor League affiliates, with corresponding negative effects on players, communities and baseball itself. In this regard, while the parties’ Minor League
14
collective bargaining agreement contains an agreement by Major League Baseball not to contract for the
duration of that agreement (until December 2027),
Major League Baseball refused to extend its commitment not to contract affiliates beyond that point.6
Second, although the Curt Flood Act eliminated the
baseball exemption in the market for Major League
player services, the baseball exemption will nonetheless continue to have a significant impact on Minor
League players in the labor market.
This Court has found in federal labor law a “nonstatutory” antitrust exemption that applies to restraints
in the labor market in the presence of a collective bargaining relationship. See generally Brown, 518 U.S. at
235-36. In Brown, this Court held that the nonstatutory labor exemption protected a multi-employer bargaining unit’s decision to impose a specific salary scale
on a group of employees represented by a union, even
after the parties’ collective bargaining agreement expired and the union and employers had negotiated to
impasse.
6 Major League Baseball and MLBPA disagree about whether
Major League Baseball would be required to bargain with
MLBPA about a decision to eliminate Clubs. In labor law parlance, the issue is whether contraction is a mandatory subject of
bargaining. See NLRB v. Katz, 369 U.S. 736 (1962) (identifying
certain issues as mandatory subjects of bargaining). MLBPA asserts that bargaining about contraction is mandatory, but Major
League Baseball says it is not. See Nat’l League of Pro. Baseball
Clubs,
2022-2026
Basic
Agreement,
Attachment
8,
https://bit.ly/3LpoUqs (last accessed Sept. 28, 2023). In the context of the Minor Leagues, Major League Baseball agreed not to
contract for the duration of its Minor League collective bargaining
agreement; the agreement states that neither party waives its
rights as to this issue.
15
This Court, however, did not define the “outer
boundaries” of the nonstatutory labor exemption. Id.
at 250. And it cautioned that its holding
is not intended to insulate from antitrust review
every joint imposition of terms by employers, for
an agreement among employers could be sufficiently distant in time and in circumstances from
the collective-bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process. See, e.g., 50
F.3d, at 1057 (suggesting that exemption lasts until collapse of the collective-bargaining relationship, as evidenced by the decertification of the union); El Cerrito Mill & Lumber Co., 316 N.L.R.B.
at 1006-1007 (suggesting that ‘extremely long’ impasse, accompanied by ‘instability’ or ‘defunctness’ of multiemployer unit, might justify union
withdrawal from group bargaining).
Id. As a result, if Minor League players were to choose
for whatever reason in the future to cease being represented by a union, or if Major League Baseball were to
otherwise take action that affected players outside of
the collective bargaining process, Major League Baseball would lose its nonstatutory labor exemption. In
that situation, if the judicially-created baseball exemption were eliminated, Minor League players would be
able to avail themselves of the same antitrust rights
as employees in any other industry.
16
CONCLUSION
This Court should grant the petition, overrule its
prior decisions, and eliminate the baseball exemption.
The decision of the Second Circuit should be reversed.
Respectfully submitted,
BRUCE S. MEYER
IAN M. PENNY
MATTHEW R. NUSSBAUM
JEFFREY D. PERCONTE
MAJOR LEAGUE BASEBALL
PLAYERS ASSOCIATION
12 East 49th St.
New York, NY 10017
(212) 826-0808
VIRGINIA A. SEITZ*
SIDLEY AUSTIN LLP
1501 K STREET, NW
Washington, D.C. 20005
(202) 736-8000
vseitz@sidley.com
Counsel for Amicus Curiae
October 17, 2023
*Counsel of Record
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.