Opinion — Flood v. Kuhn

Supreme Court brief1972

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Text

a Ses, -octomer TERM, 197.

, Teague draft of potential: new players; and the forma-

in 1966.7

: ‘ Henry, Chadwick, Eddie Colli

| Cleveland Alexandér, Rogers ney, Harry ‘Hooper,

~ Goose Goslin, Jackie Robinson, Hons Wagner, Joe Mc-

_. .Big Dan Brouthers, Wahoo Sam Crawford, Wee

» Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man

_ ° McGinnity, Three-Finger Brown, Harry and Stan*

~ >, Coveleski, Connie Mack, AI Bridwell, Red Ruffing, Amos.

_* » Rusie, Cy Young, Smokey Joe Wood, Chief Meyers,

~~ Joe Tinker, Roy. Campanella, Miller Huggins, Rube.

* Opinion of the Cour | a 407 U.S.

Series } in 1903, 5 dieription ' in 1904, and the Soedea? resump-

tion ‘in “1905; the short-lived Federal » League on’ .

the majors’ scene during World War I years; the trouble--.

some and discouraging episode of the 1919. Series ; the

“home run ball; the shifting of franchises ; the expansion.

of the leagues; the installation in 1965 of the major.

tion of the: Major League Baseball Players Amoenton

Then there are the many names, Gatehathad for one

reason or another, that have sparked the diamond and ©

its environs and that ve provided tinder for recaptured

thrills, for reminiscence\and cémparisons, and for con-. -.

versation and anticipatidn in-season and off-season:

‘Ty Cobb, Babe Ruth, Tris\Speaker, Walter Johnson,

ala Gehrig, Grover |

Carthy, John McGraw, Deacon Phillippe,

quard, Christy Mathewson, Tommy

Delahanty, Davy Jones, ‘Germany Schack, I

Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass” :

Chief Bender, Bili Klem, Hans ‘Lobert, Johnny Evers,

Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss,

Clark Griffith, Branch a, Frank Chanee, Cap Anson,

® See generally ‘The Baseball Encyclopedia (1969) ; L. River, The a #

Glory: of Their Times (1966); 1 & 2 H. Seymour, ‘Baseball (1960,

1971); .1 & 2 Dz Voigt, American Baseball (1966, 1970):

FLOOD v. KUHN 268

Ne ap ‘Lajoie. Sad Sam Jones, Bob O'Farrell, Letty O’Doul,

Bebby Veach, Willie Kamm, Heinie Groh, Lloyd and

Paul Waner, Stuffy McInnis, Charles Comiskey, Roger

Bresnahan, Bill Dickey, Zack ‘Wheat, George Sisler,

Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred

Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube

' 258 - — Opinion of the Court, | @

Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne,

_ Moe Berg, Rabbit Maranville, Ji immie Foxx, Lefty Grove.°

The list seems endless.:

And one recalls the appropriate reference to the ow orld

_ Serious,” attributed to Ring Lardnér, Sr.; Ernest L. -

Thiyer's “Casey at the Bat”; * the ring of “Tinker to

These are names only from earlier years By mentioning some,

one risks unintended omission of others equally celebrated.

* Millions have known and enjoyed baseball. One writer knowl-.

“I knew'a cove who’d never heard. of Washington’ and Lee,

Of Caesar and Napoleon from the ancient jamboree, -

. But, bli’me, there are queerer things than anything-like that,

For mare's a cove who never. heard of hase at the Bat’!

“Ten million never rielind of Kisste, or Shelley, Burns or ie:

But they know ‘the air-was shattered by the foreé-of Casey’

blow’;

Pir never heard of-Shakespeare, nor of Dickens, like as not,

a en er old. Mudville’s haunted

a Ri Say ipuek: Se Case “Am Y dreaming? Is it true?

Is fame but windblown ashes when the summer day is |

- through?

: Does _ greatness fade so quickly oat is winder anced to ‘die

That bigomed in early morning, ere the dusk rides down the

cr sky?” \ nies en

“He Never Heard of Casey” Grantland Rice, ‘The Sprig a

York Herald _—— June 1, 1926, p. 23.

‘_ edgeable in the field of sports almost assumed that everyone did ©

until, one day, he discovered otherwise: .

264. OCTOBER TERM, 1971

Opinion of the ‘Court 407 U:S.

| "Evers to Chance”; * and all the other happenings, habits,

and superstitions about and around baseball that made

it the “national pastime” or, depending upon the pon

: of, view, “the great, Americar. tragedy. ag

I :

-The Petitioner

The. silliest: Curtis Charles Flood, born in 1938,

7 began his major. league career in 1956 when he signed

a contract with the.Cincinnati Reds for a salary of $4,000 ~

for the season. He had no attorney or agent to advise

him on that occasion. He was traded to the St. Louis

Cardinals before the 1958 season. Flood rose to fame

as a center fielder with the Cardinals during the years.

1958-1969. In those 12 seasons he compiled a batting

average of .293. His best. offensive season was: 1967 -

. when he achieved .335. He was- .301 or better in six

of the 12 St. Louis years. He participated i in the 1964,

1967, and 1968 World Series. He played errorless ball

in the field in 1966, and once enjoyed 223 corisecutive

errorless games.. Flood has received seven Golden Glove

Awards. He: was ¢o-captain of his team from .1965- :

- 1969.. He ranks among the. 10 major league outfielders

possessing the highest lifetime fielding averages.

5 “These are the saddest of possible words,

- “Tinker to Evers to Chance.”

‘Trio of bear cubs, and fleetgg, tha than birds,

‘Tinker to Evers to Chance.

- Ruthlessly pricking our gonfalon bubble, a =

‘Making a Giant hit into a double— ,

Words that are. weighty with nothing but touble:

re to Evers to Chance.’” - “a

. Pigrce Adams, Baseball’s Sad Ladies.

. ead rnard Shaw, The Sporting News, May 27; 1943, p. 15,

‘col. 4.

_ FLOOD v. KUHN , +265

. >? > 7

" 258 - Opinion of the Court. °s

- Flood’s St. Louis compensation for the years shown

_ was:,

1961. . $13,500: Cneluding* a bonus for signing)

1962 $16, 000 ° . | .

1964 $23,000 aren

1965 $35,000

“1966 . $45,000 7 7

1967 $50,000 ~

1968 - $72,500 = |

1969 $90,000.

_ These figures do not include any ‘so-called fringe ben-

efits or World Series shares. ©

But at the age of’ 31, in October 1969, Flood was:

_traded to the Philadelphia Phillies of the National

. League in.a multi-player-transaction. He was not con-

_ sulted about the trade. -He was informed by telephone

and received formal notice only after the deal had been

‘consummated.’ In December he complained to the

Commissioner of Baseball and asked that he be made ~

a free agent and be placed at liberty to strike his own

‘ bargain — with ‘any other major league- team. ‘His re- °

quest. was denied.

Flood then instituted this antitrust suit ’ in eJeauas

1970 in federat court for the Southern. District of New

. York. The defendants (although not all were named:

in each cause of action) were the Commissioner of Base-

ball, the presidents of the two major leagues, and the

24 major league clubs. In general, the complaint charged |

violations of the federal antitrust laws’ and civil rights _

‘ statutes, violation of state statutes and the common law,

"and the imposition of a form of peonage and involuntary —

“"f Concededly wesostted by the Major a Baseball Players

' Association, the players’ collective-bargaining representative. -Tr. -’

of Oral Arg. 12.

‘

pods Micaela)

De SR Re eee Tg

Us ,

OCTOBER TERM, 1971

Opinion of the Court _ : 407 U.S.

—

servitude castes to the. Thirteenth Amendment i

-~ 42 U.S. C. § 1994, 18 U.*S. C. § 1581, and 29 U.S. C.

§§ 102 and 103. Petitioner sought declaratory and in-

junctive relief and. treble damages. -

Flood declined to play for Philadelphia in 1970, despite

a $100,000 salary offer, and he sat out the year. After

the season was concluded, - Philadelphia "sold its rights

to Flood to the Washington Senators. Washington and

the petitioner were able to come to: terms for 1971 at

_@ salary of $110,000. Flood started the season but,

: apparently because he was dissatisfied with. his per-_

formance, he left: the Washington club on April 27, early’ -

-in the campaign. ‘He has not —— er since then.

a | 100

{.. The Present Litigation

Judge Cooper, in a detailed opinion, first denied a

preliminary injunction, 309 F. Supp. 793 maid 1970),

observing on the way:

“Baseball has been the national pastime for over

one -hundred years and enjoys a unique place

in our American heritage. Major league profes- .

sional baseball is avidly followed by millions of fans,

looked upon .with fervor. and pride and provides

@ special source of inspiration’and —_— team

spirit especially for the young.

“Baseball’s’status in the life of the nation is sO

@ pervasive that it would not strain credulity to say

the Court can take’ judicial notice. that baseball is -

-everybody’s business. To put it mildly and’ with

restraint, it-would be unfortunate indeed if a fine

_ sport. and profession, which brings surcease from

. daily travail and an escape from the. or to

® The parties agreed that Flood’s “sntthigttion in baseball in oid

would be without prejudice to’ his case. .

_ FLOOD v. KUHN 267

258 - ' Opinion of: the Court a , &

‘most inhabitants of ‘this ‘land: were » to suffer in

the least because of undue concentration by any

one or any group on commercial and profit con-.

_. ‘siderations. The game ‘is on higher ground; it

. behooves every. one to keep it there.” 309 F. - Cupp. .

at 797.

Flood’s. application, for an ‘early trial was , granted. The

court next deferred’ until: trial its decision | on the de-

fendants’ motions to dismiss the primary causes.of action,

but granted 7 aa motion for summary judgment on

- an additio

1970).

An extensive record was. developed. In an ensuing

-opinion, 316 F. Supp. 271 (SDNY 1970), Judge Cooper

_ first noted that:

“Plaintiff’s witnesses in the main pens that

some form of reserve on players is a necessary ele- -

ment of the organization of baseball as a league

sport, but contend that the present all-embracing .

‘system is needlessly: restrictive and offer various

alternatives which in their view might loosen the

bonds without ante to the on =.

| “Clearly the bopoederanes of credible ae dos

not favor elimination of the. reserve clause. With

the sole exception of plaintiff himself, it shows that

_even plaintiff’s witnesses do not*contend that ‘it is

wholly undesirable; in. fact they regard -substantial

portions meritorious. ....” 316 F.Supp., at: 275-276.

He then held that Federal Baseball Club v.. National .

League, 259 U. S. 200 ( 1922), and Toolson v. New York -

Yankees, Inc., 346 U.S. 356 (1953), were controlling; that .

it was not necessary to reach the issue whether exemption

‘from. _ antitrust Jaws would result; because aepects of

use of action. 312 F. Supp. 404 CDNe 7

Trial to the court took place i in: May and Fuiie 1970. |

REO SRM INGA SRN sp Come re! SRLS

268, 272.

268 “OCTOBER TERM, 1971 +

Opinion of the Court | 407 U.S.

. baseball now are a subject of collective bargaining; that

the plaintiff’s state law claims, those based on common law

- as well as on statute, were to be denied because baseball .

was not “a matter which admits of diversity of treat- .

ment,’ 316 F. Supp., at 280; that the involuntary servi-

_ tude elaim failed because of the absence of “the essential

element of this cause of action, a showing of compulsory

service,” 316 F. Supp., at 981-282; and that judgment

was to be entered for’ the defendants. Judge Cooper

included a statement of personal conviction to the effect

that “negotiations could. produce an. accommodation on

- the réserve system which would be eminently, fair and

~ equitable to all concerned” and that “the reserve clause

-can be fashioned so°as to. find ‘acceptance by player

_ and club.” 316 F. Supp., at 282 and 284.

- On appeal, the Second Circuit felt “compelled to af-

firm.’ 443 F. 2d 264, 265 (1971). It regarded. the

issue of state law as one of first impression, but con-—

cluded that the Commerce Clause precluded its applica-

tion. Judge Moore added a concurring opinion in which

eer srs with respect, to the suggestéd overruling

ederal Baseball and Toolson, that “there is no like-

lihood, that such an event will occur.

~—

“And semaine: so. Baseball’s’ welfare and future should “not

«. be for politically insulated interpreters of technical antitrust stat-

_ jutes but ’ rather should be for the voters through their elected »

“representatives. At baseball is to be damaged by statutory: regula-

‘tion, let the congressman face his constituents the next November

and also face the consequences of his baseball — record.” 443

F. 2d, at 272..

Cf. Judge Friendly’s comments in Salerno v. American loam, 429

. F..2d 1003, 1005 (CA2 1970), cert. denied,-sub nom. Salerno v. Kuhn,

400 U.S. 1001 (1971):

“We freely acknowledge our: “belief that Federal Baseball was

not one of Mr. Justice Holmes’ happiest days, that the rationale of

Toolson i is ae dubious and that, to use the mene: Court’s

"* 443.8. 2d, at

I oe

FLOOD v. KUHN *

258i. . Opinion of the Court

We granted certiorari in order to look once again at

this troublesome and — situation. 404 U. S. —_

(1971). f

_ The Legal Beck grounsi —_

A. Federal Baseball Club v. National League, 259

U.S. 200 (1922), was a suit for treble damages instituted .

by a member of the Federal League (Baltimore) against :

_ the National and American Leagues and others: The ©

-plaintiff obtained .a verdict i the trial court, but the

Court of Appeals reversed. “The main brief filed by,

the plaintiff with this Court discloses that it was strenu-

ously argued, among other things, that the business in |

which the defendants were engaged was interstate com-

‘ merce; that the interstate relationship among the sev- |

eral elute, located as they were indifferent States, was

predominant; that organized baseball represented an in-

vestment of colossal wealth; that it was an engageé-

* ment in moneymaking; that gate receipts: were divided

by agreement between the home-club and the visiting

club; and that the business of baseball was to be dis-

tinguished from the mere playing of the. game as a

sport for physical exercise and diversion. | - See. also 259

U. S.; at 201-206.

Mr. Justice Holmes, in speaking succinctly = a unani-

mous: ‘Court, said: ,

“The business is giving exhibitions’ of base ball,

which are purely state affairs... . But the fact ’

that in order to give the exhibitions the Leagues :

must: induce free persons to cross: state lines and

. own adjectives, the distinction metunes baseball and other pro-

fessional sports is ‘ufrealistic,’ ‘inconsisterft’ and ‘illogical.’... While

we should not’ fall out of our chairs with surprise at the 1 news that

Federal Basehall and Toolson had . been overruled, we are not at

- all certain the Court is cod to give them a happy aera Nederng

970 °° ~~~ OCTOBER TERM, 1971

Opinion of the Court _ — 407 U.S.

must arrange and pay for their doing. so is not

‘ enough to change the character of the business. . . .

[T]he transport is a mere incident, not the essen-

tial’ thing. That to which it is incident, the ex-

- hibition, although made for money would not be

_ called trade or commerce in the commonly accepted ©

use of those words. © As it is put by the defendants, |

. personal effort, not related to production, is not a

subject of commerce. ‘That which in its consum- 7

mation is not - commerce does not become commerce

among the States ‘because the tratisportation that

we have mentioned ‘takes place. To repeat the

illustrations given by’.the Court below, a firm of

lawyers sending out’ a member to argue a case,

or the Chautauqua lecture: bureau sending out lec- |

turers, does not engage in -such’ commerce because

_ the lawyer or lecturer goes to another State.

“If we are right the plaintiff's business is to be

described in the same way. and the restrictions. by

contract, that prevented the plaintiff from getting — .

-players to break their bargains and the other con-

duct charged agairist the ‘defendants were not an

interference with commerce among the States.” 259 |

U. S., at 208-209. : .

10 ‘What really .saved baseball, ‘legally at least, for the: next

half‘century was the protective canopy spread over it by the United..

_ States Supreme Court’s decision in the Baltimore Federal League

anti-trust suit against Organized Baseball in 1922. In it Justice

Holmes, speaking for a unanimous court, ruled that the business of.

giving baseball exhibitions for profit was not-‘trade or commerce ‘jn-

the cornmonly-accepted use of those words’ because ‘personal effort,

‘not related to production, is not a subject of commerce’; nor was

_ it ‘interstate, because the movement of ball clubs across state lines

was merely ‘incidental’ to the business. It should be noted that, .

contrary to what many believe, Holmes: did call baseball a business;

time and again those who haye not troubled to read the text. of the

decision have claimed incorrectly that the court said baseball was

4 sport and not a business.” 2 H. Seymour, Baseball 420 (1974).

FLOOD v. KUHN

¢ ;

258 Ot : © “Opinion of the Court .

‘The Court thus chies not to be persuaded by oppos- |

ing - examples proffered by the plaintiff, among them

_ (a) Judge Learned Hand’s decision on a demurrer to_

a Sherman Act complaint with respect. to vaudeville .

entertainers traveling a theater circuit covering several

States,. H. B. Marienelli; Ltd. v. United Booking Offices, |

(227 F. 165 (SDNY. 1914); (b) the first Mr. Justice

Harlan’s opinion in International Textbook Co. v. Pigg,.

217 U. S.-91 (1910); to the effect that correspondence

_. courses: pursued through the mail constituted commerce

‘among the States; and (c)} Mr. Justice Holmes’ own

opinion, for. another unanimous Court,. on demurrer in

_ a Sherman Act case, relating to cattle shipment, the -

interstate movement of which was intefrupted for the

finding of purchasérs at the stockyards, Swift & Co. v.

United: States, 196 U. S. 375 (1905). The only earlier

case the parties were able to locate where the ©

question was raised whether organized baseball was

within the Sherman Act was American League Base-

ball Club v. Chase; 86 Misc. 441, 149 N. Y. S. 6 (1914).

‘That court had answered the: question in the negative.

B. Federal Baseball was cited @ year ‘later, and with-

out disfavor, in another opinion by Mr. Justice Holmes

for a unanimous Court. ‘The complaint charged anti- .

trust violations with respect to vaudeville bookings. It

-was held, however, that the claim was not frivolous’ —

and that the bill should not have been ‘dismissed. Hart

v. B. F. Keith Vaudeville. Exchange, 262 U. S. 271.

(1923) .*

It has also been aed. not cational with respect

| “to the practice of law, United States v. South-Eastern’

--110n remand of the Hart case the trial court dismissed the com-

plaint at the close of the evidence. The Second Circuit affirmed

. on the’ ground that the plaintiff’s evidence failed to establish that

the interstate transportation was more than incidental.. 12 F.2d -

341 1 (7828). This Court denied certiorari, 273 U. S: 703 (1926).

meneTe

SEM GOEL PR TR PO TARY aD i i

m8 ~. OCTOBER TERM, 1971

‘Opinion of the Court . ., 07,8.

Underwriters Assn., 322 U. S. 533, 573 (1944) (Stone,

C.-J., dissenting); with. respect, to outsof-state con-

tractors, United States .v. Employing Plasterers Assn.,

__ 347 U.S. 186, 196-197 (1954) (Minton, J., dissenting) ;

and upon a general comparison reference, N orth Amer:

\ican: Co. v. SEC, 327 VU. S. 686, 694 (1946). : ‘

\In the years, that followed, baseball continued to be \.

- subject to intermittent antitrust attack. The courts, °

however, rejected these challenges on the authority of

Federal Baseball. ‘In‘some cases stress was laid, although ©

-unsuc sfully, on new factors such as the development

‘of radio and: television ‘with their substantial ‘additional

revenues to baseball’? For the most part, however, the

Holmes opinion: was generally and. necessarily accepted

as controlling adthority.* And. in the 1952. Report of ©

the Sybcommittee on Study of Monopoly Power of the

House Committee onthe Judiciary, H. R. Rep. No. 2002,

82d Cong., 2d Sess., 229, it was said, in conclusion:

“On the’ other hand the overwhelming prepon-

“derance.of the evidénve “established baseball’s need

for some “sort-of reserve clause. Baseball’s history

shows that chaotic conditions prevailed when there ~

was no reserve clause. Experience points to no

feasible substitute to protect ,the integrity of the

. game or to guarantee a comparatively even com- ,

a2 Toolson: ¥ v. New York Yankees, Inc., 101 P, Supp. 93 (sD Cal.

1951), aff'd, 200 F. 2d 198 (CA9 1952): Kowalski v. Chandler, 202 .

F. 2d 413 (CA6 1953). See Salerno v. Ametican League, 429 F.2d -

1003 {CA2 1970), cert. denied, sub nom. ‘Salerno v. Kuhn, 400 U: S.

1949) (this case, we are advised, was. subsequently settled) ; Martin

v. National League, Baseball Club, 174 F. 2d 917 (CA2 1949).

13 Corbett v. Chandler, 202 F. 2d 428 (CA6 1953); Portland Base- |

ball Club, Inc. v. Baltimore Baseball Club, Inc., 282 F. 2d 680 CAQ

1960); Niemiec v. Seattle Rainier ‘Baseball Club, Inc., 67 F. Supp.

‘705 (WD Wash.. 1946). ‘See State v. Milwaukee Braves, an ‘

31 Wis. 2d 699, 144 N. W. 2¢ 1, cert. scam Ss. 900 (1966)...

1001 (1971). But ef. Gardella v.. Chandler, 172 F.2d 402 (CA2 ~

FLOOD v. KUHN

- Opinion of the Court

petitive ‘struggle: The ‘evidence adduced at. the

hearings would clearly not justify the. enactment:

» of legislation flatly condemning the reserve clause, cst

ag The Gia granted certiorari, 345 U.S. 963 (1953),

in the Toolson, Kowalski; ‘and Corbett cases, cited in

_: ——tn. 12 dnd 13, supra, and, by a short per curiam (Warren,

C. J., and Black, Frankfurter, Dovatas, J n, Clark, °

and Minton, JJ.), affirmed the judgments of thé respective ;

_ courts of appeals in those three cases. Toolson v. New .. |

York Yankees, Inc., 346 U. S. 356 (1953). Federal ,

Baseball was cited as holding “that the business of. -pro- -

viding public baseball games for profit between clubs of © eee

-- professional baseball. players was not within tt 5 ove . oe

‘* ef the federal antitrust laws,” 346 U. S., at 357, ; 4

“Congress has had the ruling “under Kieihgit.

but has not seen fit to bring such business under- |.

these Iaws by legislation having prospective éffect. Se

The business has. thus been left for thirty years | 4

to develop, on the ‘understanding that it was not Ae

subject to existing antitrust legislation. The pres- ok

ent cases ask us to overrule the prior decision and, - S| ”

with retrospective effect, hold the legislation appli- « ~

_ cable’ We think that if. there are evils in thi

ig which now warrant application to it o

~ antitrust laws.it should be by legislation.

: re-examination of the underlying issues, ‘the judg-

ments below are affirmed on the uthority of Fed-. a

eral Baseball Club of Baltimore v. National’ League - +} --

of Professional Baseball Clubs, supra, so far as that oot

decision determines that Congress had no intention” - wee B

_. of including the business of baseball within the’, g

' . geope of the federal antitrust laws. Ibid.

This quotation reveals four reasons for the Court’s se

affirmance of Toolson anu its companion Cages: (a) Con- . — :

gressional awareness for three decades of the Court’s.

» *

. 5 : s ° : ° i ¥S Sz : : vs . .

: : 4 :

j “f et r ° : Bd eee

‘ RAEN oe ¢ “ ; 7 @ ; .. : 3 Eye

ithout;..- - aa

Opinion of the ian 4070.8.

ling . " coupled with ‘ ‘congressional

i tion. 3 ‘(b) The. fact: t iat- baseball was. left. alone to -

develop for that. period « pon’ the understanding that

"the reserve system was ‘pot subject: to existing federal

“(c) Afeluctance to.\overrule Federal .

quent retfoactive effect. ‘(d) A’ pro-

. fessed desire that any needed remedy. be provided. by ‘on

*\ Jegislation rather ithan B court decree. The emphasis —

Nn Toolsén. was ‘on the de ination, ‘attributed even

to Federal Baseball, that’ Congress had no intention to

a inélude baseball. within the. reach . of the.federal anti-

"trust laws. ‘Two: Justices; (Burton- and Reed, JJ.) dis-

sented, stressing the “factual aspects, revenue sources, and. _

oy -the absence of an express exemption of organized base-

Ce from: the Sherman Act. 346 U.'S., ‘at 357. The z

1952 nagreations andy. was mentioned. Id, at: 358, :

359, 361." -

' it is of intgatet to puke: hati in. Toolson thé petitions

\ chad argued flatly ‘that Federal Baseball “is wrong and.

must be overruled” Brief. 19, and that ‘Thomas Reed

‘powell, a constitutional scholar of no. small stature, urged,

“fees “Counsel for an ‘amicus, that “baseball is 4 unique / |

—— i Amicus Brief 2, and that “unbridled. com- Ke

tition as applied to’ baseball would not be i in the public sid

jae in terest. ie, ae : .

“United : States v.Shubert, 348° U.S. 222 (1955),

Ms oe Was ‘a civil. antitrust ‘action against ‘defendants eng

cin the, production ‘of legitimate theatrical — ——-

_ ‘throughout the United’ States and in operating th

- for) the: presentation of. such -Attraotions. The. District ee

ah Court. had dismissed the- complaint ‘on. th@ authority Oe ets

Federal Baseball and Toolson., 120 F. Supp. 15 (SDNY *.-

)..: This Court reyersed. Mr. Chief Justice Warren

ted the Court’s broad conception of “trade or com- —

i ~ mereo” in. the ‘arititrust stataites and the types of enter-

» prises already i siasi to, be within the reach of, that oe.

ee ae: - * gy oe ee re coe

288

PO EO TOR

Opinion of the Court

ie stated that Federal Baseball and Sorteen: afforded

~ no basis‘for a conclusion that businesses built. around

os the performance of local exhibitions are‘exempt from .

e antitrust laws. 348 U. S.,'at 227. He then went

n to elucidate the holding in: ‘Toolson by meticulously

S spelling out the factors mentioned above:

| oped. . . .. And Congress, although it had actively |

? conaidetse: the ruling, had not seen fit to-.reject

_ it ‘by amendatory legislation. Against this back-

' “Tn Federal Baseball, the Court, speaking deseniah

Court a, was ‘a mere incident, not the

tial ane.

Federal Baseball, the Court was confronted with a

unique combination ‘of circumstances.,°For over

"80 years: there had stood a decision of this Court

specifically fixing the’ status of the baseball business

” -under the ‘antitrust laws and. more particularly. the

he. validity of *the so-called ‘reserve clause.” During

-~°._ this period, in. reliance on the Federal Baseball preee-

é “In Posted where the issue was a the same as in

dent, the baseball business .had.. -grown and devel- -

ground, thé Court it Toolson was asked to overrule

- Federal Baseball on the ground that it was out of.

ie step with subsequent decisions reflecting present-day

| -coneepts of. interstate comme

* The Court, in

view of the circumstances. of. ie case, declined to °

far as that decision. determines that Congress had

no intention | of including the business. of baseball.

wens: the’ seope of the federal antitrust laws.’ 346 .

‘do so. But neither did the Court necessarily re-_

_ affirm ll that was said in Federal Baseball. In- |

» Stead, _Lwlithout re-examination of the underlying

. issués,’ the Court adhered -to Federal Baseball ‘so

Mr. Justice Holmes, was dealing with the business —-_—— .

of baseball and nothing else. .... The’ a =

ee — 5

ar = SPT GP Pe g8

. Bi eT TE CONICS pl ome oo

- 2h6 ‘- OCTOBER TERM, a971

“Opinion of the Court . 407 U.S.

.ULS., at £357. In has, Toolson was a narrow —

cation of the = of stare decisis.”

. . If the Poolson holding is to be pe

Or. contracted-r-the appropriate remedy lies wits

Congress.” 348 U."S., at 228-230.

E. United States v. International Boxing Club, 348

U.S. 236 (1955), was a companion to Shubert and was

decided the same day. This was a civil antitrust action

against defendants engaged in the business of promoting

professional championship boxing contests. Here again | )

the District Court had dismissed the coinplaint in reli-

ance upon ‘Federal ‘Baseball and Toolson. The Chief.

Justice observed that “if it were not for Federal Baseball

and Toolson, we think that it would: be too clear for.

dispute that the Government’s allegations bring the

- defendants within the scope of the Act.” 348 U. S.,.

at 240-241. He-pointed out that the defendants relied

on the two baseball cases but also would have been con-

- tent with a more restrictive interpretation of them than

the Shubert defendants, for the boxing defendants.argued ~

that the cases immunized‘ only businesses that involve’

_exhibitioris of an athletic nature. The*Court accepted

- neither argument. It again noted, 348 U. S., at 242,

that: “Toolson ne overruled Federal. Barbell nor

nN necessarily reaffirm all. that was said in Federal Base- — -

\ball:” It stated: ey

“The controlling . nbd in Pederd Base-

‘ball and Hart was, instead, a tery practical one—

the degree ‘of interstate activity involved in the

particular. business under review. It follows that

stare. decisis ‘cannot help the defendants here; for,

x” contrary ‘to their argument, Federd Baseball did -

not’ hold that all businesses ‘based on «professional

sports were outside the scope of the antitrust laws.

- The issue con ing us is, therefore, not whether

_@ previously Zranted conaaian should continue,

FLOOD ». KUEN | 277 «

258 Opinion of the Court

but whether an exemption should be Samia in the

first instance. And that issue is for. Congress to .

resolve, not this Court.” 348 ‘U. S., at 243.

-The Court noted the’ presence then in Congress. of

various bills forbidding the application of the antitrust —

laws to “organized professional sports enterprises”; the

holding of extensive hearings .on ‘some of these ; sub’

' , committee opposition; a postponement recommendation

as to baseball; and the fact that “Congress thus left

‘intact the then-existing covangy of the antitrust laws.”

348: ULS., at 243-244. .

"> Mr. Justice Frankfurter, joined by Mr. Justice Minton, ©

dissented. “It would baffle the subtlest ingenuity,” he

said, “to find a single differentiating factor between other

_ sporting - exhibitions’. . . and baseball insofar as the

conduct of, the sport is relevant to the criteria or con-

siderations by which the Sherman Law becomes. appli-

_‘eable to a ‘trade or commerce. 7” 348 U.S., at 248.. He

went on:

“The Court decided as i did in the Toolson case

as an application of the doctrine of stare decisis.

, That doctrine is not, to be’ sure, an imprisonment

of reason.. But neither is it a whimsy. It can

hardly be that this Court gave a preferred posi- °

tion to baseball because it is the great American

"sport. - If stare decisis be one .aspect-of-taw, — |

as it is, “to disregard ‘it. in identic situations i is mere

caprice.

“Congress, on ‘the other hand, may yield to senti-

> Ment and be capricious, subject amy to due

_ process.

“Between them, this case and ‘Shubert illustrate

that nice but rational distinctions are inevitable in

adjudication. I agree with the Court’s opinion. in .

Shubert for precisely the reason: that constrains me

to dissent in this case.” 348 U. S., at 249-250. |

geo VA Sr oa Ly ae ea

YI Peet

eS HANH a air 5 INGEN INN ag PRT TE a ale

Oar granrer

_ OCTOBER TERM, 1971

“Opinion of the Court oo "407 U.S.

Mr. Justice ‘Minton. also separately dissented on the

- ground that boxing is not trade or commerce. He addéd.

the comment that. “Congress has not attempted” to

‘eontrol baseball and boxing. - 348 U. S., at 251, 253.

_ .The two dissenting Justices, thus, did‘ not’ call for the

overruling of Federal Baseball and Toolgon; they merely

felt that boxing should be under the same unsbfella, of |

freedom as. was baseball. and, as Mr. Justice Frank-

-furter said, 348 U. S., at 250, they could hot exempt

‘baseball “to the exclusion of every other sport different

pot one legal ‘jot or tittle from it.” ™*

_. F. The parade marched on. Radovich v. National .

Football League, 352 U.S. 445 (1957), was a civil Clayton”:

Act case testing the application of the antitrust laws

to professional football. . ‘The District. Court dismissed.

The Ninth Circuit affirmed in part on the basis of Fed-

eral Baseball and Toolson. .The court did not hesitate

“ro «confess that’ the strength of the pull” of the baseball

cases and of International Boxing “is about equal,”

but then observed that “Tf Jootball is a ‘team sport” and —

boxing an individual one.’ . 231 F. 2d. 620, 622.

This Court reversed with an opinion by Mr. Justice

Clark. -He said that the Court made its ruling in Fool-

son “because it was concluded that more harm woul

be done in overruling Federal Baseball than in uphold-

ing a ruling which. at best was of dubious validity.’

352 -U. S, at 450. He noted that Congreas had net

‘acted. He then said: |

“All this, combined with’ ‘tite flood of litigation 3

‘that would follow its repudiation, the harassment:

that would” ensue, and the retroactive effect of such

* decision, led the Court to. the practical result that

14 The case’s final chapter is » dabermtionsl Bozing Club v, United

States, 358 U. S. 242. ees ;

258

FLOOD ».KUHN. | ..__.279

Opinfon of the Court a

it. should sustain the unequivocal line of authority

reaching over many years.

' - Gited as controlling: authority in antitrust actions *—

“TS]ince Toolson and Federal Baseball.. are still

' involving other fields of business, we now specifically

limit the rule there established to the facts there

involved, i. e., the business. of organized professional ©

baseball. As long as the Congress continues to

acquiesce we should adhere to—but not extend—.

-. the interpretation of the Act made in those cases. . . .

- “Tf this ruling is unrealistic, inconsistent; or il- -

logical; it is sufficjent. to answer, aside from the

distinctions between the businesses, that were we

considering the question of baseball for the first

time upon a clean slate we would have no. doubts.

But Federal Baseball held the business of baseball °

- outside the scope of the Act, No other business .

claiming the coverage of these cases has such an

adjudication. ‘We, therefore, conclude that. the or-

" derly way to eliminate error or discrimination, if

* any there be, is by legislation and not by- court

decision. Congressional processes are more aeeom-

modative, affording the whole industry hearings and

- an opportunity to assist. in the formulation of new

législation. . The resulting product is therefore more

‘likely to protect the industry and the public alike.

The whole scope of congressional action would be

known Jong in advance and effective dates for the

Mr. J ustice™ ‘Frankfurter dissented. dbeanitally 4 for the.

reasons stated in his dissent in Rites 2 Boxing,

legislation could be set. in the -future without the’

injustices of retroactivity and syrprise which might

follow court action.” 352 U. S., at mdien io

note omitted).

: 8 ‘ . .

ON PERRI Ores, POP ORATOR ATEN gE REESE ME TET STOTT 6 Mg ie

PRIN INN oI SELON ve aE KN

. .

~ °

% 280 - _ OCTOBER TERM, 1971

"Opinion of ‘the Court 407 U.S.

- 352 U. S.,-at 455. Mr. Justice Harlan, joined by Mr.

Justice: BRENNAN, also dissented: because he, too, was

“unable to distinguish football from baseball.” 352 U.S.,;

: at 456. Here again the dissenting Justices did not call

a: for the overruling of the baseball decisions. They merely —

4 could not distinguish the two sports and, out ‘of respect

"oe gem decteis,. weted to Mami Be

. G. Finally, in Haywood vy. National Basketball: Assn.,° -

..401 U. S. 1204 (1971), Mr. Justice.’ Dovetas, ‘in his

eapacity as Circuit Justice, reinstated a District Court’s~

injunction: pendente lite in favor of a professional basket-

_ ball player and said, “Basketball . . . does not enjoy

exemption from the antitrust laws.” 401 U.S., at 1205.”

H. This series of decisions understandably spawned ~

extensive commentary,” some of it mildly critical and

| 15 See also Denver Rockets v. All-Pro Management, Inc., 325 F.. -

_ Supp. 1049, 1060 (CD Cal. 1971); Washington Professional Basket- '-

* “ball Corp. v. National Basketball Assn., 147 F. Supp. 154: (SDNY.

+1956)! : hie me .

_. 18 Neville, Baseball and-the Antitrust Laws, 16 Fordham L. Rev.

: 208 (1947); Eckler, Baseball—Sport or Commerce?, 17 U: Chi. L. -

sie, Rev. 56 (1949); Comment, Monopsony in Manpower: Organized Base-

ball ‘Meets the Antitrust Laws, 62 Yale L. J. 576 (1953); P. Gregory,

The Baseball Player, An Economic Study, c. 19 (1956) ; Note, The

' Super Bowl and the Sherman Act: Professional ‘Team Sports and the

“Antitrust Laws, 81 Harv. L. Rev. 418 (1967); The Supreme Court,

1953 Term, 68 Harv. L. Rev. 105, 136-138 (1954); The Supreme

Court, 1956 Term, 71 Harv. L. Rev. 94, 170-173 (1957); Note, 32

Va. L. Rev. 1164 (1946); Note, 24 Notre Dame-Law. 372 (1949) ;

Note, 53 Col. L. Rev. 242 (1953) ; Note, 22 U: Kan. City L. Rev.

173 (1954); ‘Note, 25 Miss. L. J: 270 (1954) ; Note, 29.N. Y. U. L-

Rev. 213 (1954); Note, 105. U. Pa. L.’ Rev. 110 (1956); Note,

32 Texas L. Rev. 890 (1954); Note, 35 B. U. L. Rev. 447 (1955); -

Note, 57 Col. L. Rev. 725 (1957) ; Note, 23.Geo. Wash. L. Rev. 606

(1955); Note, 1 How. L. J. 281 (1955); Note, 26 Miss. L. Py <a

(1955); Note, 9 Sw. L: J. 369 (1955); Note, 29 Temple L. Q.

- 103° (1955); Note, 29 Tul. L. Rev. 793 (1955); Note, 62 Dick.

FLOOD v. KUHN | 281

258 : - - Opinion of the Court -

much of it not; ‘nearly alt of it looked to Congress for

any remedy. that might be deemed essential. 5

-I. Legislative proposals have been numerous and per-

sistent. Since Toolson more than 50 bills. have been

- introduced in Congress ‘relative to the applicability or

nonapplicability of the antitrust laws to baseball.”. A

" few of these. passed one house or the other. Those that

did would . have expanded,’ not ‘restricted, the reserve

_ system’s exemption to other professional league sports.’

_ And the Act of September 30, 1961, Pub. L. 87-331, 75

Stat. 732, and’ the merger addition thereto effected by

_the Act. of November 8, 1966, Pub. L. 89-800, § 6 (b),

.L.. Rev. 96° (1957); Note, 11.Sw. L. J. 516 (1957); Note, 36°

N. C.'L. Rev. 315 (1958); Note, 35 Fordham L. Rev. 350 (1966) ;

Note, 8 B. C. Ind. & Com. L. Rev. 341 (1967); Note, 13 Wayne .

L. Rev. 417 (1967); Note, 2 Rutgers-Camden L: J. 302. (1970); .

Note, 8 San Diego L. Rev. 92 (1970); Note, 12 B.C. Ind. & Com.

L. Rev. 737 (1971); Note, 12 Wm. & Mary L. Rev. 859 (1971).

17 Hearings on H. R. 5307 et al. before the Antitrust Subcommittee

of the House Committee on the Judiciary, 85th Cong., Ist Sess.

(1957),; Hearings on H. R. 10378 and S. 4070 before the Subcom-:

_mittee on Antitrust and Monopoly of the Senate Committee on the

Judiciary, 85th Cong., 2d Sess.- (1958); Hearings on H. R. 237

etal. before the Antitrust Subcommittee of the House Committee

on the Judiciary, 86th Cong., Ist. Sess. (1959) (not printed); Hear-

ings on S. 616. and S. 886 before the Subcommittee on Antitrust

and Monopoly of the Senate Committee on the Judiciary, 86th Cong.,

lst Sess. (1959); Hearings on.S. 3483 before the Subcommittee on

Antitrust and Monopoly of the Senate Committee on the Judiciary,

' 86th Cong.; 2d Séss. (1960); Hearings on S. 2391 before the Sub- -

committee on Antitrust and Monopoly of the Senate Committee on

the Judiciary, 88th Cong., 2d Sess. (1964) ; S. Rep. No. 1303, 88th

Cong., 2d Sess. (1964); Hearings on S. 950 before the Subcommittee —

on Antitrust and Monopoly of the Senate. Committee on the Ju-

diciary, 89th Cong., Ist Sess. (1965) ; s. Rep. No. 462, ‘89th Cong.,

[st Sess. (1965): Bills introduced in the 92d Cong., Ist Sess., and

bearing on the subject are S. 2599, S. 2616, H. R- ‘ams, H: R. 11033,

find HR. 10825.

Geer reo

282 - ‘OCTOBER TERM, 1971

: Opinion of the Court Ai 407 U.S.

‘ 80 Stat. 1515, 15 U. S. G. $§ 1291-1295, were also ex-

pansive rather wan restrictive as to antitrust exemption.”

ee view of all this, it seems appropiate now to say

* that.

. Professional baseball is a businesg” and it is engaged aint

‘in interstate commerce.

x. With its reserve: system rae a exemption from

the federal’ antitrust laws, baseball is, in a very distinct, ;

sense, an exception and an anomaly. - Federal Baseball

- and. Toolson have become an aberration confined to

~. baseball.

oe Even though me might oat this as “unrealistic, —_.

inconsistent, or illogical)” ° see Radovich, 352 U. S., at

- 452, the aberration -is an “estabtished - -one, and one that

has been recognized not only in Federal Baseball and — |

~ Toolson, but in Shubert, International Boxing; and .

-- Radovich, as well, a total of five consecutive cases in this

- Court. It is an aberration that has been with us now

for half a century, one heretofore deemed fully entitled

to the benefit of stare. decisis, and one that has survived.

the Court’s expanding concept of interstate commerce.

“ It rests 6n a recognition and .an acceptance. of baseball’s

unique characteristics and needs.

A. Other gnc = operating interstate—foot-

18 Title 15 U. S. C. 1294 lee:

“Nothing contained in this chapter shall be poe to change, —

_ , determine, or otherwise affect’ the applicability or nonapplicability

of the ahtitrust laws to any act, contract, agreement, rule, course

“= conduct, or other activity by, between, or among persons engaging

conducting, or participating in the organized professional team

pees of football, baseball, basketball, or hockey, except the agree-

ments to which section 1291 of this title shall apply.” —

: Z sagetede

_ eT

FLOOD ». KUEN . | . 283

« 258. . : * “Opinion of the Claas

- ball, boxing, basketball, and. presumably, hockey ~ and *

- golf *°—agre not so exempt. a 4 Fe oe |e

5. The advent of radio and television; with eee con- 4

sequent increased coverage and additional revenues, has |

not occasioned an —— of Federal Baseball and

Toolson.

_ 6. The Court has emphasized that since 1922 baseball,

with full and continuing congressional awareness, has

been allowed to develop and to expand unhindered’ by

federal legislative action. Remedial legislation has been -_

introduced repeatedly in Congress but none has ever been = f

enacted. The Court, accordingly, has concluded that

Congress as yet has had no intention to-subject baseball’s 3

reserve system to the reach of the antitrust statutes. 3

This, obviously, has been deemed to be something other.

- than mere congressional silence and passivity. -Cf. Boys

Markets, Ince. v. Retail Clerks Union, 398: U. Ss. 235, 241-

(242 (1970). .- ae 7

7. The Coart has expresed concern about the confu-

sion ‘and the retroactivity problems that inevitably ge

résult with a judicial overturning of Federal Baseball. -

has voiced a preference that if any change is to be af

- it come by legislative action that, by its nature, is only 7

| _ prospective in operation. :

_.. 8, The Court noted in ‘Radovich, 352 U. S., at 452,

that the slate with respect to baseball is not ‘lean. In-

- deed, it has not been clean for half a century.

This emphasis and this concern “are still with - “We

continue to be loath, 50 years after Federal Baseball |

- and’ almost two decades after Toolson, to overturn those

_ Cases judicially when es, by its positive inaction,

Dh a Sr

LO RORGAAM tnt atp aaeo nea

NO sy HARON My?

¥ Peto v. Medlees Square Garden Corp, 1958 Trade Case, :

{ 69,106. (SDNY 1958). ~ —

"2 Deesen v. Professional Golfers’ Assn., 358 F. 2d 165 (€A9), pus §

cert. denied, 385 U. 8. 846 (1966). abi oe _¢£

e' 4

‘sistency or illogic in all this, it :

logic of long standing that 4s to be remedied by the. .

94 ~~ *:«sOCTOBER TERM, 1971

- Opinion of the Court 407 U.S.

* has allowed fnose decisions to stand for sggjong and,; far

beyond mere infe ‘nce and implication, has clearly

evinced a desire not to disapprove them legislatively...

Accordingly, we adhere once again to Federal Baseball

and Toolson and to their application to professional base-

ball. We adhere also to International Boxing and Rado-

- vich and to their respective applications to professional

boxing‘and professional football. If there is any incon-

Congress and not: by this Court. If we were to act other-

is an inconsistency and -

wise, we would be withdrawing from the conclugion as :

to congressional intent made in Toolson and from the

s-as.to retrospectivity therein expressed. Under

>. these circumstances, there is merit in consistency even

o°

* - The petitioner's argument as to- the application of

state antitrust laws deserves a word. Judge Cooper re- ° Sc

“jected the state law claims, because state antitrust regu-

lation would conflict with federal policy and because

. national “uniformity [is required] ‘in any regulation of”

* baseball and its reserve system.” 316 F. Supp., at 280. _

* The Court of Appeals, in affirming, stated, “[A]s the

burden on interstate commerce outweighs the states _—

interests in regulating baseball’s reserve system, the Com-_ .-

merce -Clause precludes the: application here of state |

antitrust law.”. 443 F. 2d, at 268. As applied to orga-

nized baseball, and in the light of this Court’s observa- ~ 2

tions and holdings in Federal Baseball; in Toolson, in

- Shubert, in International Boxing, and in Radovich, and

'_° despite “baseball’s allegedly inconsistent position taken —

in the past’ with respect to the application of state law,”

"2 See Respondent’s. Brief 67 in Federal Baseball and Respondent’s

. Brief 30 in Toolson. See also State v. Milwaukee Braves, The, -:,

31 Wis. 2d 699, 144°N. W. 2d, cert. denied, 385 U. S. 900 (1966)

- though some might claim ‘that beneath that-consistency

__. is a layer of inconsistency. - ie ae eee

. ae

7” 258 ; "A Bunarn, ©. J, concurring ae

‘ Lar

nad

these statements adequately “dispose of the state law

~~ - claims.

aa.

And whai the Court ee in Fedéral Bosctall ' in 1922 a

The conclusion wé have tanitvet inaliiass it unnecessary,

for us to consider the respondents’ additional. argument —

that the reserve system is a mandatory subject of col-

lective bargaining and that federal labor policy there- —

fore exempts the reserve. —_ from. the operation of

federal antitrust laws.” .

We repeat for this case what ie said in Toolson:

“Without re-examination of the underlying issues,

‘7° the [judgment] below [is] affirmed on the authority

of Federal Baseball Club of Baltimore v. National :

League of Professional Baseball Clubs, supra, so far.

as that decision determines that Congress had no -

_ intention of including the business of baseball within

_ the scope of the federal antitrust laws.” 346 U. S.,

at 357.

what’ it said in Toolson i in 1953, we say again here in

_ 1972: the remedy, if any. is indicated, is for rr

and fot judicial, action.

. The iene . the Cour af Appeal is

. : . Se Affirmed.

‘Tae Cuier Justice and Mn. Justice WHITE join in

- the judgment of the Court, andi in all but Part I of. the

Court’s opinion.

‘

Mr Justice PowEt1 t ok no Part in the consideration

or decision of this case.

- Mr. CHIEF ‘Josrice Bimaen, mcurring.

| concur in all but Part. I of the Court’s opliton bal,”

like Mr. J USTICE Dovetas, have grave reservatio

‘22See Jacobs &, Winter, ‘Antitrost. Principles and Collective:

' ‘Bargaining by Athletes: Of Superstars in Peonage, 81 Yale_L. J. a

(1971), suggesting ‘present-day irtelevancy of the antitrust issue.

a ee FLOOD #. KUHN a aes

Ae ee,

. ’

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TRINA A aR ia er eet Per pa ony

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“Inc., 346 U. S. 356 (1

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a , we ee : 3 } z : % ‘

Pint 3 tg

“as sas hi Guccabaa’ Poolson v, tcueicka

sent, he jdined that holding ba :

"regret “it.” = e. error, if stich it. be, is one

the -affairs bf « & great | y people have. rested for

along time: “Cowts- fot the forum in which ‘this

‘tangled web ought to be unsnarled. I agree-with Mr.

JUSTICE Dovetas that congressional inaction is pot. 4 |

-” solid. base, but the least undesirable course now is to let

ep aeatten seit Sieh Oonertet So .Se he Coren

__-Seted to solve this problem. . aa ee os

Mr Justice Dovetas, with whom Mr. Justice BREN-

NAN. ‘concurs, dissenting:

This Court’s fst gi GOD aig ale es

“National League, 259 U.S, 200,‘ made in 922, is a

,derelict: in the stream. of the Jaw that we, its creator,

‘should. remove. a romnantic view* of a rather.

: dismal business. ‘Saal over the last, 50 years’ would —

.” “fg Gah Sleatot ke sakdabreda.” ‘°

Ap 1922 the Court had a narrow, peradhial view of *

cophmeree. With the.demise of the old landmarks of #1

era, particularly United States v. Knight Co., 156. U:

_ Hammer v. Dagenhart, 247 U. S. 251, and Paul v Vir.

_” ginia, S Well! 168, the whole concept of commerce has =

> Chianged.

_Under-the Sableek. decisions anes as “Maiievitle Island -

FaPms v. American Crystal Sugar Co., 334 U. Ss. 219;

United States y. Darby, 312 U.S. 100; Wickard v. Fi-

es burn, 317 U.:S..111: United States v. South-Eastern

- Underwriters ‘Assn., 322 U. S. 533, the power of Congress

"was recognized as broad enough to reach~all phases of ”

. the vast. operations of our national. Industrial aystem.

_ +S While I joined the Court's opinion, in Toolson +. New York

. Yankees, Inc., 346 U. S. 356, I have lived to regret it; and I would —

Bow convert what I believe to be ite fondamental error.

. a

-- equities. The.equities are with the victims of the reserve

- Clauise. I use the word “victiins”. in the Sherman Act -

of trade.* Gardella v.‘Ghandler, 172 F. 2d 402 (CA2). -

- . And see v. National Basketball Assn., 401 U.S.

_ * . upon -thé fact that Congress has refused to enacf bills

bers}; Radovich v. National Féotball League, 392 U.S. 445; United ~ *

ty in sustaining petitioner's claim,.

7 35 asd ‘Deomse, 1, Ueentiog. cee : .

pre ee dependest: on iatio and ‘@levision as in. s

‘baseball and | vast-interstate revenues (see H.R... -

Rep. No. 2002, 82d Cong., 2d Sess., 4, 5 (1952)) would be

_ hard put today to say with: the Co ‘in the Federal

Baseball Club case that baseball. » onthe loner: See

ficii cs ofthe Federal Baseball Club decision ste ~

t @ Babe Ruths, Ty Cobbs, and Lou Gehrigs. :

_. The owners, shbsie: sennehs aus: iat Ml acres

: clivity for predatory practices, do not come-to us with -

"sense, since .a contract which forbids anyone to practice _

~hid calling is commonly called an unreasonable restraint

" -1204.(DosGias, J, in chambers).” oe

| If congressional inaction is Sur guide, swe ‘should rely. |

oat broadly averting professional sports from .antitrust _

regulation.» H. R. Rep. No. 2002, 82d Cong., 2d Seas.

- ? Had this, sosen, gfomp, bapentscoeteied ik-ansthellldediy,

_ Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359, U: S. 207; United. -

. States v. Shubert, 348 U. S. 222; or even in another sport, Haywood

v. National Basketball Assn, 401 U, S. 1204 (Dovetas, J., in cham-

States v. International’ Boxing Club, 48 U. 8/236; ‘we would have”

3 ’s reliance upon congressional inaction disregards the:

_, Wisdoni of Helvering v. ‘Hallock, 309 U. S.. 106, yer, where

we said:-

“Nor does want of specific Congreesionsl repadiations-. . serve as-.

- ‘an implied instruction by Congress to us riot to reconsitler, in the ;

‘light of new experience . . those decisions . a It would require.

aes Ni persuasive circumstances enveloping’ Congressiong] silen¢e to —

+ pamcncene

rere deeating . : 4070.8.

(1952): The aiily atatutory. exesnption granted ly: Con- pa.

y _gfeas to professional sports: concerns broadeasting rights.

45 U. SeC.,$§ 1291-12985. « I would noteascribe a broader _

“exemption through inaction than Congresi has: seem fit

to grdnt explicitly: . 6 |

Meee cs bie aie “that -were considering; the ‘ ile

- juestion of baseball for the first time upo e-clean slate” * :

* we would hold it:to be subject. to federal titrust regu-

_< ‘+ Iation. Radovich v. National Football Leagu , 352 U,-S

«445, 452. ° "The unbroken silende of Congress should

a prevent’ us from correcting our own mistakes. — foo

| Min» Sosrsom. -Manasiaza, ‘with whom Mx. Jysrice

_ BrexNan: joins, dissenting. 7

Petitioner, was a major laListas\deneobell: plngien from

— when he signed a contract with the Cincinnati

; Reds, until 1969, when. his 12-year career with the

Si. Louis Cardinals, who had obtained him’ from the

“Reds, ended and he was traded-tq the Philadelphia .

Phillies. He’ had ino notice that the Cardinals were.

: templating a trade; no opportunity to indicate the Sy

teams with which he would prefer playing, and no de-"

ao to> ait Sualatbie, After receiving formal

notification of ‘the a petitioner wrote to the

Commissioner of | baal that he was tot

paca paar Later geo 7g aay non

“only be suificient to indieste that we walk én quicksand when we try =

ti Wi the aloreet ef, chereative gba»: SSE

principle.”

And_ see United States v. South-Eastern Underwriters haiZ 522

U...S. 533, 556-561.

aie isc gr he ine al rd sing he

reserve claiee in sctial operation. ; baie

yer

. e 4

os .

. ° Ad

- of my wishes,”* and

poe “phon KUEN ae a. A

a << ine Wasi a sca cansaamesition

rae bolas Cakeagiiae

consider offers from other: teams than the Phillies:, He _

= reipantie ithe Cialis ‘ntietys SEE OH? |

Teague teams that he was available for the 1970.

that he had no choice but to play for Philadelpt

:. nét to play at all. URN

oe To non-athletes it might ‘appear that petitioner was

- virtiially enslaved by, the owners of major league bsse- |

system. The essence of that.

ices. But, athletes kttow that it was not servitude that...

; ".. ball clubs who. bartered’ among themselves for his serv-~ :

‘is that a player

is-bound to the club with whi he first-signs a contract

S4 for the rest.of his playing days.?’ ‘ He cannot. escape .

from ‘the club except by retiring, and he cannot prevent

the elub ‘from: assigning his contract. to any other club.

. Petitioner. brought this action in the United States-

District Court for. the’ Southern District of New. York.

1 He alleged; among other things, that the reserve system ——

was: an: unreasonable, restraint of trade in violation of

: ‘Letter from Curt Flood to Bowie K. Kubo, December 24, 1909, :

App. 37.

2As Mn. Justice BuackMUn pajnts out, the reserve system ‘is

not novel. It has been employed since 1887.. See Metropolitan

Exhibition Co. v. Ewing, 42 F. 198, 204 (CC SDNY 1890).

The club, owners assert that it is necessary to preserve effective

competition and to retain fan interest. The: players do not agree

——-and-argue that the reserve system is overly restrictive. Before this ae

lawsuit was instituted, the players ‘yfused to agree that the reserve

"system should be a part of the collective-bargaining contract. In- ..

. stead, the owners and players agreed-that the reserve system would |

em ree 5 Hrs wie er Re eee wae

+ changes. Pie Sede nee Sea Bies.dne. nek are See

outcome of this suit.

s -

TEN bed : 5 . f my Y

‘ Ry . ; 5 . . 7.

° ‘ F 4 r o™

: * : ve P mest

~ ° . m o

Sah

eo .

a ig |

a a _ OCTOBER TERM, ea

el ae “Mansreatt, J, dissenting cae: ars. ~ fs

: feral antitrust laws The District Gourt thought eck,

self. boun® by prior decisions of this Court and found -

_’ . for the respondents after a full. i 309 F. Supp. 793 ae

"| 4970)... The United States urt: of Appeals.for ther

.. | Second Cirewtit affirmed. - 443 -F: 2d -264 (1971): "We |

4 granted certiorari on October 19, 1971, 404-U. S. 880, .

order to take a furth -Jook at the precedents relied

- ape the gs a pe

“This is a difficult: case because weare torn between eae

the principle of stare decisis\and. the wledge that the ¢ »

Ae nein utennecn, ational League, .>

as , 259 U. S. 200 (1922), and v. New York Yankees, -* -

| Inc., 346 U. 8..356-(1 ), are totally at vids rsh: more é

», a team in the Federal League 42

| | brought an antitrust actio mm against - the National and — .

| American Leagues and ers. In his’ opinion fi rai

- ,; Unanimous Court, Mr. Justice Holmes ‘wrote that the

"| business being ebnaidered. was: “giving exhibitions | .of

-. base ball, which are purely state affairs.” - 259 U. S.,. at :

.. 208. _ Hence, the Court held that baseball-was not within"

‘the purview of the antitrust laws. Thirty-one years ,

later, the Court reaffirmed this decision, without re-

me examining it in -Toolson, a one-paragraph per curiam

opinion. Like this case, Toolson involved an. attack .

on the reserve system. ‘The Court said:, Sa

“The business has... . beef left, for thirty: years Bs

to develop, on the understanding pe it was not ___

“ Pe of state xntitrust ida, eats

ie ~ “6 Gt Sigiiie Melk aia: ib’ Selina ie: and clainied that he was

forced into peonage and involuntary servitude in violation of the -

Thirteenth Amendment to the United States ‘Constitytion. Because

_ I believe that federal antitrust laws govern baseffall; I that |

" state law has been pre-empted in this area.. Like the lower courts;

oe i Ge Sas Galore tat theto hes been vintnthon: wie Yhliteenth

aspera unccis

- ”.* adhere to the reasoh of Toolson—i. é

. examine the uaderiying basis of Federal Baseball Club— .

vale: ERMA genes /

oe i a Stee? x ~

PS EOE ietice

Ay ent. cases ask us to r the ‘prior decision ‘and, : . Py.

| laws it should ‘be" by legislation.” Td., at 387.

A racer

_ gress has ‘not -We must. now: e~. whether to .

refuse to re

or-to proceed with a re-examination -and let the chips

fall where they may,

_ In his answer to petitionel’s oi complaint, the Commis:

- "sioner of Baseball “admits.that ‘under present concepts _

/ of interstate commerce defendants are engaged ‘therein.”.

_ State commerce,” if. we: re-exarnine baseball’s~ antitrust —

ee.

“decisions in. United States ee

~~~“ Shubert, 348 U. 8. 222 (1955), United States v, Inter-

_ national Bozing Club, 348. U: S. .236 (195 ), and Rado-

vich v. National Football League, 352 U. 8, 445 (1957),

=A ee App. 40. There’ can be no. doubt that the admission Oe

| ah Ge hee ee ve

- ° Tequire that we bring baseball within: the co coyprage of

’ the ‘antitrust laws. , See also, Haywood v. National |

3, 1204 (Dovauis, J, in“

it aay

° Basketball ° Assn.; 401. -U,

clisimbtts).

We on to comment that:

as Wee

- im particular, are the. Magna Carta of free ‘enter-

. Aes

‘Antitrust laws in general, andthe Sherman “Act. ae

prise. They are as important to the preservation . —

es of economic freedom an n free-enterprise system.

* * ‘as the Bill of. Rights 4s to the protection of our ~

_ fundamental pefsonal. freedoms. . « .- Implicit in

such freedom is the notion that it cannot’ be fote-

ys closed with eucnt to one sector of the eared

CEE * -OCTORIER TERM, 371 « 2 a.

ae | Ce if | oe “Mansnans, J, diwenting Re rts a9

eis ‘ies Sauce svat: citigess v= groupe: believe «

ie *. that such’ fore i “might promote greater com-. ‘

aS ey : pétition in a more important ‘seetor of the eeonaniy.”

: United States v. ‘eat men gsemwe. Sa 405° U; 8.

2 = om 596, 61061972). ° i

portance ‘of. the: aoliicwsk liws i oa citize

ae noe he cheek They are as“important'to se- |

_ ball ‘players as they ‘are to football players, lawyers, > .

‘oa lopecaniy SanAerpyanes kein Re

“anata bles Cid ‘other economic interests —

_, a8 being x iportant, elise Cinieear bt sc AES, ee

| _. Has Congress. acquiesced in our decisions in/Federal ~.

‘Court been consistent: and ‘treated all sports in the same ~

_ way baseball was treated, Congress might have become _

7 concerned enough \to take action. - But, the Court was -

"+ inconsistent, rohan gested gree So gee urge es

ae + from all other “In; Toolson the, Court refused to vee

act because Co d had (eae silent.” But the Court

y have read too much ‘i into this legislative inaction. oe:

'. Americans love baseball a ey love all sports. | Per-

haps we become so enamored of athletics that we assume: 3

: ‘that théy are foremost ‘int the minds of legislators as

_ well as-fans. -We must -not.-forget, however, that there.

Po are only some 600 major league baseball players. “‘What-

ever muscle they might. have been able to muster by ~

.. impaired by the manner “in which this Court has iso- - |

*: dated them. It: is this Court that has made them im- ze

‘potent, and this Court should correct its.étror- - ere

We do. not lightly overrule our prior constructions |

* of federal statutes, but when our errors. deny substanti@™,

federal rigitts, like the right to compete freely and effec.

Se so 2s the -

. . . - f .

as o - y : F% .

f . c LiSeen til

e. . » 5

; SoareN

efi We kaaiinns tare and we should do-s6 again

: here? See, e. g-., Blonder-Tongue_ babe ortiborpe , Inc. a

University of Minois Roundagioti 402-U. 8. $13 (1971);

Dou Martel: Ine. v.. Retéil Clerks: Union, 3 sisagctaoes

241 {19 Jo Hay Aas a4

Bee: 5 is Cent think ‘there fo coneern ‘over-any.relienee 3

: interests ‘that club owners may asset, they casi be satis /

' ~- fied by making our-decision prospective only. pal er

ye __ should be covered by the antitrust laws beginning Wi ee

“this case and henceforth, unless - Boog ceo pathos ce ie

- otherwise:* bs . Bre ese ae

ik Ws not’ inean that. | pe Goner would necessarily

<a prevail, however. Lurking i the background is a hurdle

sos of recent vintage that itioner. still ‘Must overcome.

we city stn the past ti" Cart has wot Kesitated to’ change ite view as to.

' what constitutes interstate commerce. Compare United States v. .

Knight Co., 156 U. 8: 1 £1895), with Mandeville Island Farms ¥."

‘Amerignn Crystal Sugar Co., 3340.8: 219 (2948), and United States . ee Gres

' vy. Darby, 312 U.S. 100-(1941). oe

"Pile facta (chmceped With ‘pallic Coubibes ta, sad icemlic: 5 fe

of the judicial system’ might well consider that, however admirable =

its resolute adherence to the law as it was, a decision contrary to the -

_°, public sense of justice’ as it is, operates, so’ far as it is known, to.

_ diminish respect. for the courts and for law itself.” Santon, Stare

Decisis ; A Dissenting View, 10 Hastings L. J. 394, 397 (1959).

‘* We said reécently that “[ifm rare ' decisions construing :

federal statutes might be denied full iveneGect,

‘where this Court overrules its own construction of a ta

United States v. Estate of Donnelly, 397 U. S. 286, 295 (1970). Ct.

Simpson v. Union Oil Co. of. California, 377 U. S. 13, 25 (1964).

‘ the antitrust a dear tac This should be

~~ considered on"remand. feu #6

+ MM CS: "cron Tem, jh .

BO Manswats, J, deco Be M708.

the Major. sins Ampbtiation|veed.

Tt is the colle irae preins. sieeeninalve

” for ‘all ‘major. ‘league- baseball “players.. Respondents.

argue that the reserve system is now part, and: parcel

of the.collectr agreement and that ‘because

it ig a mandatory subject of bargaining, ‘the federal labor 4

_- statuted. are applicable, not the. ‘federal ‘antitrust laws.’ .

. The lower courts did not rule on- this argument; having.

* decided: the | case: edlely on. the basis of the’ ant antitrust *

° exemption. ge

: “This Court, haw fared the interrelationship between

the antitrust laws and the labor laws before: The deci-

°. tO S

organized labor cannot be. utilized as a cat’s-paw to. ppl

States v. Women’s Sportswear Manufacturers Assn., 336.

-U. S&S 460, 464 .(1949). See also, Allen Bradley

«Co: v, , Local Union No. 3, 325 U.S. ‘797 (1945)... Second, .

the very nature of a collective-bargaining, agreement .

to a-greater degree than management could - do’ uni-

(1941); United Mine Workers v. Pennington, 381 U. S.

657. (1965) ; Amalgamated Meat Cutters v. Jewel Tea; |

381 U. S. 676 (1965); cf., Teamsters Union vy. Oliver,

358 U. S. 283 (1959). Finally, it i ‘clear that some -

cases can. be resolved only by _the - ‘purposes |

~ and: the competing interests af-the labor and: antitrust. -

ee ee ee rey :

“It is apparent that none of the prior cases is precisely

in point. They involve union-management. agreements

RAs PE ie sinh asset nal ie

- In this ‘ones, ‘petitioner “urges thet. the restrve ‘system

- ~sroro tp the detriment of labor.” |

a Ct. United States ¥. Huichnom, 312 U. S. 219 (294.

‘¢

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‘sions’ make several things clear. First, “benefifs to a

employer’s chestnuts out of the antitrust fires.” United _

Mandates that the parties be able to. “restrain” trade

_ laterally. United States v. Hutcheson, 312. U: 8.219 ' -

“AN Sint dati inini seca: %

é' _ lective-bargaining relationship of the parties, the issues ~ ue

": | #urrounding that ‘relationship ‘have’ not been’ fully ‘ex: |

plored. . As one.commentator has suggested, this case.

“has been litigated with the implications for the institu-

* labor law iues have een in the corter® of the case-—— “.

the courts below, for example, did not reach them— -

Se yipeie: hae dosnsy erp Prayer all

ae £58 OER, OS ne SNE GR as

; expel.” *. Y fhe¢ . .

pe Tt is true shat ir NRadovich v. National Football League ee

_ supra, the Court rejected a claim that federal Isbor st A

> utes’ governed: the relationship between a professional

Beds . athlete and the professional sport: But, an: examination” oe

. of ‘the. briefs and record in‘ that case indicates that the _ a

. . issue was not squarely: faced. The’ issue is once again +

before this Court without being clearly‘ focused, It

-.’ should, therefore, be the subject. of fu er inquiry in.

| the District Court. : bz ae

. Sen okie al

that petitioner's sole remedy died in filing a claim with —

the National Labor Relations Board, but- this argument

is premised on- the’ notipn that-management and labor

_ have-‘agreed to,actept the reserve clause. This notion

is contradicted, in part, y the record in this case. Peti- -

tioner suggests that the system: was thrust upon -

"the players by thé’ owners and that the recently formed

Players’ union -has not had time to modify or eradicate

* . jt. “If this is true, the question arises.as.to whether there -

-. would then’ be any. exemption from theantitrust laws in °

: +, this dase. Petitioner. sleo suggests thet there are: mite

‘

7 .

3°

oe “8 Jacobs & Winter, Antitiust Priddiples anit Colicetive :

‘by Athletes: Of Superstars in Peonage, 81 Yale L. J: 1, 22 rong

“to

296 cee \y OCTOBER TERN, 1971

2 . = : 1

EL Manastatas J, dissenting | aS anus:

the antitrust ak CR ont manage-"

ee "ment can agree. These limits shoulti, also} oS olored.

‘In light of these considerations, I ‘would retnand this"

_ ¢ase to the District Court for consideratior ef ‘whether |

|, Petitioner can state a.claim under the antitrust laws. |.

*.* for, g detérmination of .wheth or there has been an: anti.

’ trust violation i in this case... “4

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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.