Pro sports gets a Clinton knuckle ball BASEBALL TALKS

THE BALTIMORE SUN

WASHINGTON -- Congress seems to have power under the Constitution to enact the new baseball legislation President Clinton is recommending, but a potential court fight could make it harder to carry out in full, specialists in labor and constitutional law said yesterday.

Any court challenge, by either the owners or the players, to a binding arbitration law emerging from Congress would be shaped by how the lawmakers write the bill and how they seek to justify it, one labor lawyer here said. Its potential impact on other pro leagues may have to be weighed, too.

That lawyer, who refused to be identified, said the lawmakers would have to be able to explain why the baseball industry has been singled out, and why a process forced on the parties had to be substituted for normal collective bargaining.

"If Congress did this for any other industry, there would be no responsibility left for the [existing] labor laws," the lawyer argued.

One of the dangers of legislating especially for baseball, that attorney added, is that it could set the stage for other pro sports to try to move beyond normal collective bargaining over their labor disagreements.

Professor Paul Weiler, a labor law specialist at Harvard University, said that Congress has often used its power to force labor settlements, but it has done so usually in an emergency situation that affected the nation's economy.

It is clear that baseball's economic size and influence have a wide impact, and so there is clear constitutional authority for Congress to pass laws to regulate it. But Mr. Weiler said it is not clear how far a U.S. law can go to force working conditions on an industry that crosses U.S. borders into Canada. "That is a complicating factor," he said.

Two teams -- the Toronto Blue Jays and the Montreal Expos -- are Canadian clubs, and ordinarily would be beyond the reach of U.S. labor laws unless they agreed to abide by them, the professor noted.

Although Mr. Clinton seemed to be justifying his proposal for a new law last night at least partly on baseball's sentimental role as a national institution, it appears that Congress would have to legislate on the basis of economic factors, as it has done in emergency situations for nearly 70 years.

The Harvard scholar said it is "perfectly constitutional, and acceptable" for Congress to use its sweeping powers over commerce to justify labor control laws for reasons of economic need.

Mr. Weiler noted that Mr. Clinton actually had no choice but to go to Congress for legislation, once it was clear he could not get the two sides in the baseball dispute to agree voluntarily.

Mr. Clinton, the professor said, has no authority on his own, as president, to impose any kind of settlement or any kind of binding arbitration. The Supreme Court, he noted, made clear in 1952 that the president must act in labor matters only when given specific authority by Congress to act.

If Mr. Clinton can persuade Congress to enact some version of a binding arbitration law, it might be subject to a variety of challenges in court, according to Alan B. Morrison, a public interest group lawyer and frequent advocate before the Supreme Court.

One argument, he said, could be that Congress did not go far enough to demonstrate that a federal solution, aimed at baseball alone, was necessary. The lawmakers, he said, could be tested on "what is the national interest involved here?"

Both the owners and the players, he said, have some clear-cut right to engage in collective bargaining, and Congress could be second-guessed in court on why it interrupted that right.

"It certainly would not be a frivolous lawsuit" if one side or both went to court to challenge any binding obligation laid on them by Congress, he suggested.

He speculated that lawyers, for one side or the other, might even be able to make constitutional challenges to a binding arbitration law as an excessive interference with private property.

It would be some time before any challenges were decided finally by the courts, if lawsuits did ensue. Even if a new federal law did send the players and owners into a new season, the legal uncertainties apparently would continue.

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