It's Just a Business, After All


Nobody has asked me how the baseball strike could have been ended before it began, but I will tell you anyway. If Congress had acted to make baseball subject to federal antitrust laws, that would have put the fear of prosecution into the hearts of the baseball owners.

All that is required is for Congress to overrule a series of Supreme Court decisions dating back to 1922. That would do it. Baseball would be legally identified for what it is -- a big business plainly engaged in interstate commerce.

The chain of high-court precedents began when Baltimore had a team in the Federal League. Baltimore charged that the American and National Leagues had conspired to destroy the Federal League by buying up some of the member clubs and putting the league out of business.

Baltimore won a $240,000 judgment in the trial court, but this was reversed on appeal. In the U.S. Supreme Court, Justice Oliver Wendell Holmes wrote a really dumb opinion. Baseball, said Holmes, "would not be called trade or commerce in the commonly accepted use of those words."

Baseball depends upon personal effort, he said, not upon the production of a product. Whatever the National and American Leagues may have done to Baltimore, it was not "an interference with commerce among the states." The court was unanimous. Baseball was positively not in interstate commerce.

More than 30 years elapsed. Congress did nothing to change the situation. Then came a suit in 1953 brought by George Earl Toolson against the New York Yankees. He too wanted to invoke the antitrust laws.

The Supreme Court plainly had doubts about Holmes' 1922 opinion, but the court was unwilling to overrule a controlling precedent. If there are evils in baseball's reserve clause, said the court, it is up to Congress to correct them.

This time two justices dissented. Harold Burton and Stanley Reed noted that times had changed since the Baltimore decision. Revenues from radio were increasing; television was beginning to play a major role. Burton and Reed felt the teams should be subject to the Sherman Act of 1890.

The controversy took a sidestep in 1955, when the high court took a look at boxing. It was a short look. Whatever may be the immunity granted to baseball, said Chief Justice Earl Warren, nothing requires that such immunity be extended. Boxing is plainly a business in interstate commerce. Let the government get on with antitrust proceedings.

Justice Felix Frankfurter dissented: It would baffle the subtlest ingenuity, he said, to find a single factor that might distinguish boxing from baseball. To adhere to Holmes' outdated reasoning smacked of whimsy or caprice.

In 1957, William Radovich, an All-Pro guard formerly associated with the Detroit Lions, undertook to challenge professional football. He charged the National Football League with entering into a conspiracy to blacklist him. Was professional football beyond the reach of antitrust law? No, said the high court. Football is an industry in interstate commerce. Radovich could pursue his lawsuit.

The high court's unhappiness with its 1922 decision was growing. If the court were writing on a clean slate, said Justice Tom Clark, the court would overrule the Baltimore opinion.

But the slate was not clean. The court worships the god of Stare Decisis. Once a statutory case is decided, the decision tends to stay decided until Congress acts. And Congress had not acted on baseball.

In 1971 the Supreme Court once again backhandedly reaffirmed baseball's immunity. Adhering to the old Baltimore and Toolson decisions as to baseball, the court ruled in Hayward v. National Basketball Association that basketball, of course, is indeed in interstate commerce.

Then came Flood v. Kuhn in 1972, a suit brought by outfielder Curt Flood. Same story. By a vote of 5-3 the Supreme Court again refused to overrule the 50-year-old Baltimore precedent. Justice William O. Douglas, dissenting, termed the Holmes opinion "a derelict in the stream of the law." The unbroken silence of Congress, he said, "should not prevent us from correcting our own mistakes."

There the matter stands. If Congress seriously threatened to strip professional baseball of its undeserved immunity from antitrust proceedings, the owners would howl bloody murder. But there wouldn't be any more strikes.

James J. Kilpatrick is a syndicated columnist.

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