Amicus Curiae Brief — Daniel Concepcion, et al., Petitioners v. Office of the Commissioner of Baseball, dba MLB, et al.

No. 25-199

In the Supreme Court of the United States

Daniel Concepcion, et al.,

Petitioners,

v.

Office of the Commissioner

of Baseball, dba MLB, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit

BRIEF AMICI CURIAE OF CANGREJEROS DE

SANTURCE BASEBALL CLUB LLC, SANTURCE

MERCHANDISING LLC, AND THOMAS J. AXON

SUPPORTING NEITHER PARTY

Michael B. Kimberly

Winston & Strawn LLP

1901 L Street NW

Washington, DC 20036

(202) 282-5096

Carlos A. Rodriguez-Vidal

Goldman Antonetti &

Cordova, LLC

P.O. Box 70364

San Juan, PR 00936

(787) 759-4117

Jeffrey L. Kessler

Counsel of Record

Jeffrey J. Amato

Lauren E. Duxstad

Robert S. Pannullo

Winston & Strawn LLP

200 Park Avenue

New York, NY 10166

(212) 294-4698

jkessler@winston.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Table of Authorities ..................................................... ii

Statement of Interest and Summary of Argument ......... 1

Argument ..................................................................... 4

A. The Court should overturn the baseball

exemption ...........................................................5

1. The exemption lacks legal justification..........5

2. Baseball is big business, and league

tactics are facially anticompetitive ................ 7

B. The lower courts are applying the

exemption in highly variable ways ..................... 8

C. The petition in Cangrejeros will be an ideal

vehicle for revisiting the exemption .................. 10

Conclusion .................................................................. 12

ii

TABLE OF AUTHORITIES

Cases

Butterworth v. National League of

Professional Baseball Clubs,

644 So. 2d 1021 (Fla. 1994) ....................................9

Cangrejeros de Santurce Baseball Club, LLC v.

Liga de Béisbol Profesional de Puerto Rico,

146 F.4th 1 (1st Cir. 2025)........................ 1, 8, 10, 11

Cangrejeros de Santurce Baseball Club, LLC v.

Liga de Béisbol Profesional de Puerto Rico,

680 F. Supp. 3d 107 (D.P.R. 2023) ........................ 10

City of San Jose v. Office of the Commissioner

of Baseball,

776 F.3d 686 (9th Cir. 2015) ...................................9

Federal Baseball Club of Baltimore v. National

League of Professional Baseball Clubs,

259 U.S. 200 (1922) ............................................ 2, 5

Flood v. Kuhn,

407 U.S. 258 (1972) ........................................ 2, 5, 6

Minnesota Twins Partnership v. State,

592 N.W.2d 847 (Minn. 1999) ................................9

MLB v. Butterworth,

181 F. Supp. 2d 1316 (N.D. Fla. 2001) ................. 7, 9

MLB v. Crist,

331 F.3d 1177 (11th Cir. 2003) .............................. 10

NCAA v. Alston,

594 U.S. 69 (2021) .......................................... 3, 6, 7

Piazza v. MLB,

831 F. Supp. 420 (E.D. Pa. 1993).............................9

iii

Radovich v. NFL,

352 U.S. 445 (1957) ................................................ 2

Right Field Rooftops, LLC v. Chicago Cubs

Baseball Club,

870 F.3d 682 (7th Cir. 2017) ...................................9

State Oil Co. v. Khan,

522 U.S. 3 (1997) .................................................... 3

Toolson v. New York Yankees,

346 U.S. 356 (1953) ............................................ 2, 5

Wickard v. Filburn,

317 U.S. 111 (1942) ............................................. 2, 5

Other authorities

15 U.S.C. § 26b(a) ......................................................... 3

28 U.S.C. § 636(b)(1)(C) ............................................... 3

Brief for the United States as Amicus Curiae,

Nostalgic Partners, LLC v. Office of the

Commissioner Baseball, No. 22-2859

(2d. Cir. Jan. 30, 2023), ECF 63.............................. 8

Hon. Samuel A. Alito, Jr., The Origin of the

Baseball Antitrust Exemption: Federal

Baseball Club of Baltimore, Inc. v. National

League of Professional Baseball Clubs, 34 J.

Supreme Court History 183 (2009) ...................6

Joseph J. McMahon, Jr. & John P. Rossi, A

History and Analysis of Baseball’s Three

Antitrust Exemptions, 2 Villanova Sports

& Entertainment L.J. 213 (1995) ....................... 8

iv

Justin Teitelbaum & Brett Knight, Baseball’s

Most Valuable Teams 2025, Forbes

(Mar. 26, 2025), perma.cc/YM5L-ZC9W ................ 7

Marc Edelman & John T. Holden, Baseball’s

Anticompetitive Antitrust Exemption, 65

Boston College L. Rev. 1695 (2024) .................. 8

Maury Brown, MLB Revenues Hit Record $12.1

Billion in 2024, Forbes (Jan. 27, 2025),

bit.ly/467O6Lt ........................................................ 7

Michael J. Haupert, The Economic History of

Major League Baseball, Economic History

Association, perma.cc/PJ4T-T9WT ..................... 7

Stephen M. Shapiro, et al., Supreme Court

Practice (10th ed. 2014) ........................................... 4

STATEMENT OF INTEREST

AND SUMMARY OF ARGUMENT ∗

Amici curiae—Cangrejeros de Santurce Baseball

Club LLC, Santurce Merchandising LLC, and Thomas J.

Axon—are the former investor-operators of a team in

Puerto Rico’s top professional baseball league, Liga de

Béisbol Profesional de Puerto Rico, which we refer to as

the Puerto Rico League. They also are the plaintiffs in

Cangrejeros de Santurce Baseball Club, LLC v. Liga de

Béisbol Profesional de Puerto Rico, 146 F.4th 1 (1st Cir.

2025), decided July 21, 2025.

Amici’s lawsuit presses federal antitrust claims

against the Puerto Rico League and its other teams. The

complaint alleges that the defendants engaged in an unlawful conspiracy to boycott and remove amici from

ownership of the Cangrejeros de Santurce baseball team,

which is based in Santurce, the largest barrio of San Juan.

In any other context, these claims easily would have

survived a motion to dismiss. But the First Circuit

affirmed the dismissal of the claims for a single reason:

They involve professional baseball and are, in the court’s

view, therefore barred by the so-called baseball antitrust

exemption. See Cangrejeros, 146 F.4th at 12, 19.

The baseball exemption is an anomaly of federal antitrust law, and it is long past time to overturn it. The Court

has never articulated a common-law justification for the

exemption, nor one grounded in the Sherman Act’s rule of

reason. The exemption assuredly has no basis in the text

∗ Counsel for amici affirm that they timely notified counsel of

record for all parties of their intent to file this brief. No counsel for

any party authored this brief in whole or in part. No party, counsel

for a party, or third party made a monetary contribution intended

to fund the preparation or submission of this brief.

2

of the Sherman Act, either. Rather, its genesis is Federal

Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922), decided at the

height of the Lochner era—a time when the Court routinely invalidated economic regulations in favor of its

own notion of appropriate public policy. Matching that

description to a tee, Federal Baseball held that baseball is

a wholly intrastate activity, and thus it may not be

federally regulated under the Commerce Clause at all.

That line of reasoning has long since been repudiated. See

Wickard v. Filburn, 317 U.S. 111 (1942).

When the baseball exemption next came before the

Court in Toolson v. New York Yankees, 346 U.S. 356

(1953) (per curiam), the Court reached the puzzling conclusion that it was Congress who wished the business of

baseball to escape the antitrust laws, despite that there is

no textual (or even contextual) hint of that fact in the

Sherman Act. The Court thus backtracked just four years

later in Radovich v. NFL, 352 U.S. 445 (1957), in which

the NFL asked the Court to extend the exemption to

professional football. There, the Court explained that if it

were “considering the question of baseball for the first

time upon a clean slate,” it “would have no doubts” that

the baseball exemption is unjustified on its own terms. Id.

at 452. For that reason, the Court declined to extend the

exemption from professional baseball to professional

football, even while upholding the exemption for baseball.

As the Court noted at the time, the result is “inconsistent” and “illogical,” amounting to an “unrealistic”

interpretation of congressional intent. Id.

Yet in Flood v. Kuhn, 407 U.S. 258 (1972), the Court

again reaffirmed the exemption on stare decisis grounds,

even while acknowledging that the reasoning underlying

Federal Baseball had been abandoned.

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Today, only stare decisis is left to explain the baseball

exemption. That is not enough. “[S]tare decisis is not an

inexorable command,” and in “the area of antitrust law”

especially, the Court must be open to “recognizing and

adapting to changed circumstances and the lessons of

accumulated experience.” State Oil Co. v. Khan, 522 U.S.

3, 20 (1997) (cleaned up). Appreciating that “Congress

expected the courts to give shape to the [Sherman Act’s]

broad mandate by drawing on common-law tradition,”

the Court often has “reconsidered its decisions construing the Sherman Act when the theoretical underpinnings

of those decisions are called into serious question.” Id. at

20-21 (cleaned up).

If the baseball exemption’s theoretical underpinnings

were dubious from the start, they are entirely nonexistent

today. Unlike in 1922, baseball is now a major-league

moneymaker, generating billions in annual revenues for

massive corporations. For that reason among others,

Congress in 1998 overturned the exemption’s application

to the only conduct at issue in Toolson and Flood: conduct

relating to or affecting “employment of major league

baseball players.” See 15 U.S.C. § 26b(a). More recently,

this Court questioned the exemption’s continuing viability in NCAA v. Alston, 594 U.S. 69 (2021), a unanimous decision that called the antitrust “exemption for

professional baseball” “aberrational.” Id. at 95. Against

that background, the time has come for the Court to

overrule the baseball exemption once and for all.

As explained in the petition, the exemption lacks any

rational footing in the law, and the traditional reasons for

adhering to precedent are absent. Yet while amici agree

that the first question presented thus warrants the

Court’s attention, they are skeptical that this case is a

suitable vehicle for answering it. Petitioners concede that

they failed to object to the magistrate judge’s report and

recommendation under 28 U.S.C. § 636(b)(1)(C). See Pet.

4

8. The court of appeals accordingly dismissed their appeal

summarily, without taking plenary merits briefing. See

Pet. App. 4a. The first two questions posed in the petition

are therefore presented only “abstractly,” given that they

are “irrelevant to the ultimate outcome” of the appeal—

likely rendering the case an unsuitable vehicle for review.

See Stephen M. Shapiro, et al., Supreme Court Practice

249 (10th ed. 2013).

Amici’s forthcoming certiorari petition—which we

intend to file in fewer than three weeks—also will present

the question whether the baseball exemption should be

overruled. But unlike in this case, the First Circuit in

Cangrejeros addressed the merits of the issue, not only

reaffirming the exemption in a published opinion but also

extending it to a new context not involving Major League

Baseball. And amici’s case does not implicate any waiver

questions or any other practical impediments to further

review. It is therefore a clean opportunity for the Court to

reconsider the baseball exemption.

Ultimately, amici take no position on whether the

Court should grant review in this case. If the Court denies

the petition here, it should do so knowing that the first

question posed here will be presented again in a matter of

weeks. Or if it grants the petition, it should grant review

in Cangrejeros at the same time, to ensure that there are

no practical obstacles to the Court’s resolution of all

aspects of the first question. Regardless of which path the

Court takes, the point remains the same: The Court

should grant review of the first question presented in an

appropriate case.

ARGUMENT

Amici submit this brief to emphasize two brief points:

First, the Court should revisit and overturn the judiciallycreated baseball antitrust exemption in an appropriate

case. Second, and regardless of whether it grants or denies

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the petition here, the Court should be aware of the forthcoming petition in Cangrejeros, which presents a clean

vehicle for doing so.

A. The Court should overturn the baseball

exemption

1. The exemption lacks legal justification

Unlike every other professional sport and virtually

every other business, professional baseball enjoys an

“aberrational” immunity from the antitrust laws—one

that is entirely judicially created. Flood, 407 U.S. at 282.

Under this exemption, MLB and—following the First

Circuit’s Cangrejeros decision—all other professional

baseball leagues are free to engage in openly anticompetitive conduct, demonstrably harming consumers

and the public at large without fear of criminal liability or

the treble-damages civil liability that all other sports

leagues and industries would face.

Not surprisingly, the exemption’s origins were questionable from the start. The Court held that federal antitrust laws do not apply to “the business * * * of base ball”

(Federal Baseball, 259 U.S. at 208) based on a narrow

view of interstate commerce that, although comfortably

at home in the Lochner era, was discarded two decades

later (Wickard, 317 U.S. at 127-129).

Although the legal foundation for Federal Baseball

already had been abrogated by the 1950s, the Court

nonetheless upheld the decision in Toolson, “without

[even a] re-examination of the underlying issues.” 346

U.S. at 357. The Court held simply that “the business of

baseball” is not “within the scope of federal antitrust

laws” under Federal Baseball, period. Id.

Another 23 years later, the Court revisited the exemption in Flood. While recognizing that the exemption was

an “anomaly” and “aberration,” the Court declared that,

in the absence of congressional action, the exemption was

6

“entitled to the benefit of stare decisis.” Flood, 407 U.S.

at 282 (citation omitted). It gave no other justification for

continuing the exemption.

Although the Court has declined to reexamine the

baseball exemption in the years since, commentators

(including Members of the Court) have not practiced the

same restraint. As Justice Alito explained in the Journal

of Supreme Court History:

Federal Baseball has been pilloried pretty consistently in the legal literature since at least the

1940s. Commentators have called it: baseball’s

most infamous opinion; a clearly wrong decision

based on a curious and narrow misreading of the

antitrust laws and/or an utter misunderstanding

of the nature of the business of baseball; a

remarkably myopic decision, almost willfully

ignorant of the nature of baseball; and a simple

and simplistic decision that forms a source of

embarrassment for scholars of Holmes.

Hon. Samuel A. Alito, Jr., The Origin of the Baseball Antitrust Exemption: Federal Baseball Club of Baltimore, Inc.

v. National League of Professional Baseball Clubs, 34 J.

Supreme Court History 183, 185 (2009) (cleaned

up). More recently in Alston, the Court indicated its continuing discomfort with the baseball exemption, repeating

“criticisms of the decision as unrealistic and inconsistent

and aberrational.” 594 U.S. at 95 (cleaned up).

The exemption is indeed all of those things: Neither

the Court nor any commentator has been able to offer any

explanation for the exemption grounded in the Sherman

Act’s common-law backdrop or its rule of reason. “One

commentator speculated that the Court simply exempted

baseball from the antitrust laws because it was the

national pastime.” Alito, supra, at 185. Whatever the

case, “[t]he orderly way to temper [the Sherman] Act’s

7

policy of competition is by legislation and not by court

decision.” Alston, 594 U.S. at 96 (cleaned up). That alone

is reason finally to reevaluate the exemption.

2. Baseball is big business, and league tactics

are facially anticompetitive

Changed factual circumstances since the Court’s last

word on the subject confirm yet further that it is past time

to overrule the baseball exemption. When the Court

issued its decision in Flood, the going price for an MLB

baseball club was around $12.6 million. Michael J.

Haupert, The Economic History of Major League Baseball,

Economic History Association, Table 3, perma.cc/PJ4T-T9WT. Adjusted for inflation, that would be about

$75 million today. But the value today of an average MLB

club is more than 35 times greater: over $2.6 billion. See

Justin Teitelbaum & Brett Knight, Baseball’s Most Valuable Teams 2025, Forbes (Mar. 26, 2025), perma.cc/YM5L-ZC9W. There has been commensurate growth in

MLB’s league-wide revenues. In 2024, they were over

$12 billion—a 33% increase from 2014 alone. Maury

Brown, MLB Revenues Hit Record $12.1 Billion in 2024,

Forbes (Jan. 27, 2025), bit.ly/467O6Lt. Simply put,

baseball is not just America’s national pastime—first and

foremost, it is “big business.” MLB v. Butterworth, 181 F.

Supp. 2d 1316, 1319 (N.D. Fla. 2001).

With an anomalous antitrust exemption in the hands

of such “big business,” both MLB and the Puerto Rico

League unsurprisingly have put it to use, employing

flagrantly anticompetitive tactics to protect their market

positions in ways that no one else could. They have used,

for example:

• restraints on franchise relocation;

• unilateral reductions to the number of major and

minor league teams;

8

• restrictions on non-player employees; and

• mergers and acquisitions of competing leagues.

See Marc Edelman & John T. Holden, Baseball’s Anticompetitive Antitrust Exemption, 65 Boston College

L. Rev. 1695 (2024).

And in Cangrejeros, the exemption permitted the

Puerto Rico League and its franchises to conspire (successfully) to oust an investor-operator of a competing

team, without any federal antitrust scrutiny. See 146

F.4th at 15-16. In no other context would these tactics

remotely be permissible. And the results have been predictable: higher prices and lower-quality services, harming players and fans alike.

B. The lower courts are applying the exemption in

highly variable ways

Reevaluation of the baseball exemption is especially

warranted because its scope and application has divided

the federal circuits and state high courts. While some

courts have interpreted the exemption narrowly, others

have applied it broadly so that it insulates any anticompetitive conduct related to any professional baseball

league. Without guidance from this Court, courts will

continue to apply the exemption inconsistently to cases

presenting similar facts. The exemption regrettably has

“become whatever the reviewing court says it is.” Joseph

J. McMahon, Jr. & John P. Rossi, A History and Analysis

of Baseball’s Three Antitrust Exemptions, 2 Villanova

Sports & Entertainment L.J. 213, 243 (1995). The

Department of Justice’s Antitrust Division recently

identified the continued “disagreement on the scope of

the exemption” among lower courts. See Brief for the

United States as Amicus Curiae at 7, Nostalgic Partners,

LLC v. Office of the Commissioner Baseball, No. 22-2859

(2d. Cir. Jan. 30, 2023), ECF 63.

9

For example, some courts have articulated a narrow

reading of the exemption, interpreting it to insulate from

antitrust scrutiny only the specific tactic that was at issue

in Toolson and Flood: MLB’s “reserve system,” which at

that time permitted each team to retain its players at the

team’s sole option, in perpetuity. See Butterworth v.

National League of Professional Baseball Clubs, 644 So.

2d 1021, 1024 (Fla. 1994); Piazza v. MLB, 831 F. Supp.

420, 440-441 (E.D. Pa. 1993) (similar). Because the

reserve clause is no longer in use, the baseball exemption

is essentially a dead letter in Florida state courts. On that

reasoning, the Florida Supreme Court in Butterworth

declined to apply the exemption to a dispute concerning

the sale and relocation of a franchise.

Other courts have reached the opposite conclusion

concerning relocation decisions. In Minnesota Twins

Partnership v. State, 592 N.W.2d 847 (Minn. 1999), for

example, the Minnesota Supreme Court read Toolson and

Flood more broadly, “conclud[ing] that the sale and

relocation of a baseball franchise * * * falls within the

exemption.” Id. at 852-856. The Ninth Circuit reached

the same result in City of San Jose v. Office of the

Commissioner of Baseball, 776 F.3d 686 (9th Cir. 2015),

where it held that any conduct that is “central to” the

business of baseball is covered by the exemption. Applying that test, it rejected the plaintiffs’ franchise relocation

challenge because relocation decisions are “central to”

the business of baseball. Id. at 690.

Other circuits have interpreted the exemption more

broadly still, as covering nearly any conduct touching professional baseball in any way. For example, the Seventh

Circuit exempted the Chicago Cubs’ attempt to fix the

prices for seating on rooftops adjacent to Wrigley Field on

the grounds that adjacent rooftop pricing was “part and

parcel of * * * providing public baseball games for profit.”

Right Field Rooftops, LLC v. Chicago Cubs Baseball Club,

10

870 F.3d 682, 689 (7th Cir. 2017) (citation omitted). But

that decision conflicts with the Eleventh Circuit’s decision in MLB v. Crist, 331 F.3d 1177 (11th Cir. 2003),

where the court applied the “central to” test to hold that

the exemption does not “immunize the dealings between

professional baseball clubs and third parties.” Id. at 1183.

It likely also conflicts with the First Circuit’s decision in

amici’s case, where the court held that the exemption

does not extend to conduct lacking a “direct on-the-field

impact.” Cangrejeros, 146 F.4th at 16.

The lower courts’ various interpretations of the exemption have produced a mishmash of conflicting substantive tests that are generating variable results on

analytically similar facts. Even if the question whether

the exemption should be discarded were not independently worthy of review (it surely is), the widespread

disagreements over its implementation would warrant the

Court’s attention in their own right.

C. The petition in Cangrejeros will be an ideal

vehicle for revisiting the exemption

Amici’s petition in Cangrejeros, which we anticipate

filing the first week of October, will be a clean vehicle for

revisiting Federal Baseball, Toolson, and Flood. If not for

the First Circuit’s reaffirmation (and expansion) of the

exemption, amici’s federal antitrust claims would have

survived the defendants’ motion to dismiss. See Cangrejeros de Santurce Baseball Club, LLC v. Liga de Béisbol

Profesional de Puerto Rico, 680 F. Supp. 3d 107, 111

(D.P.R. 2023) (“Following the direction of the Supreme

Court’s baseball exemption, this Court allows the Defendants’ motions to dismiss.”). Indeed, the federal antitrust

claims were the only claims the dismissals of which the

First Circuit affirmed, and the basis for its decision was

the baseball exemption alone. See Cangrejeros, 146 F.4th

at 19. Thus, the exemption’s scope and validity are the

11

only issues that will be presented in amici’s forthcoming

petition, which will be presented free of any complications related to waiver or alternative holdings.

The Cangrejeros case also exemplifies the division

among the lower courts. The First Circuit in Cangrejeros

was the first court in more than 100 years since Federal

Baseball to apply the exemption to a league other than

MLB or its affiliates or predecessors. The First Circuit

openly acknowledged that “[n]o other case has ever

broadly interpreted the exemption to apply to entities not

part of MLB.” Cangrejeros, 146 F.4th at 12.

Amici’s case also raises important issues concerning

the conduct covered by the exemption. The First Circuit

held that the exemption insulated the Puerto Rico League

from scrutiny for ousting amici from the League because

they were attempting to increase competition among

teams for players and fans. See id. at 15-16. For example,

amici attempted to improve their standing with fans and

players by commissioning a documentary film about the

team, offering higher salaries to players, and proposing a

preseason exhibition tournament. Id. at 7. They also attempted to repair the team’s dilapidated stadium at an

estimated cost of $2 million. Id. But the League and other

team owners were threatened by these efforts and thus

engaged in a scheme to seize amici’s franchise and boot

them from the League. Id. at 8. The First Circuit held that

the exemption applies to this game-adjacent conduct.

The League and the other teams’ antitrust conspiracy

targeting amici is a classic restraint of trade in violation

of the Sherman Act. But because the district court and

court of appeals held that the arbitrary, judge-made

baseball exemption applies here, the conduct was

insulated from federal antitrust scrutiny. That decision

warrants plenary review by this Court, either in parallel

with the current case or on its own.

12

CONCLUSION

If the Court grants review here, it should grant review

in Cangrejeros as well and consider the cases together. Or

if it denies review here, it should revisit and overturn the

baseball exemption in Cangrejeros alone.

Respectfully submitted.

Michael B. Kimberly

Winston & Strawn LLP

1901 L Street NW

Washington, DC 20036

(202) 282-5096

Carlos A. Rodriguez-Vidal

Goldman Antonetti &

Cordova, LLC

P.O. Box 70364

San Juan, PR 00936

(787) 759-4117

September 2025

Jeffrey L. Kessler

Counsel of Record

Jeffrey J. Amato

Lauren E. Duxstad

Robert S. Pannullo

Winston & Strawn LLP

200 Park Avenue

New York, NY 10166

(212) 294-4698

jkessler@winston.com