Major League Baseball Is Exempt from the Antitrust Laws - Like it or Not: the "unrealistic," "inconsistent," and "illogical" Antitrust Exemption for Baseball That Just Won't Go Away.
| Publication year | 2015 |
| Author | By John L. Cooper and Racheal Turner |
By John L. Cooper and Racheal Turner1
The Athletics baseball team has been located in Oakland, California for many years. Several years ago, the A's decided they would like to move their franchise to San Jose, which they anticipate would be a more profitable location. San Jose responded that it would also like to have the A's relocate to their city. In 2009, the A's asked Major League Baseball (MLB) for permission to move its franchise from Oakland to San Jose, but the league essentially shelved the request by sending it to a committee. San Jose then sued MLB, claiming that the refusal of its relocation request was an agreement among MLB team owners to preserve the San Francisco Giants' monopoly in violation of the federal and state antitrust laws.
On October 11, 2013, Judge Ronald Whyte of the Northern District of California ruled that under longstanding United States Supreme Court precedent, "MLB's alleged interference with the A's relocation to San Jose is exempt from antitrust regulation."2 San Jose appealed to the Ninth Circuit Court of Appeals, arguing that the Court should overrule MLB's historic exemption from the antitrust laws, which the Supreme Court itself has acknowledged may be described as "unrealistic, inconsistent, [and] illogical."3 On January 15, 2015 Judge Alex Kozinski issued the opinion of the Court affirming the District Court's decision and refusing to limit or overturn baseball's antitrust exemption.4
Baseball is the only national sport that is exempt from the antitrust laws. That anomalous exemption has existed for 92 years and withstood numerous court and Congressional challenges. So how did the judicially-created baseball antitrust exemption—which is widely acknowledged to be bad law—become the law-of-the-land? This exemption is a study in how judicial and legislative events transpire to freeze into the law a rule that is not only "illogical" but if considered afresh on a clean slate would never exist. As will be discussed in more detail below, the exemption was created in 1922 when the Supreme Court first held that baseball was not subject to the federal antitrust laws because it was not involved in interstate commerce. Over the years, the federal courts and the public adopted the view, without supporting legal analysis, that baseball was generally exempt from the antitrust laws, regardless of whether it was engaged in interstate commerce. Since 1953, the Supreme Court has considered this issue several
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times and explicitly refused to overturn baseball's exemption from federal antitrust laws on the grounds that Congress has not seen fit to do so, stating repeatedly that baseball's exemption can only be altered through legislation. Then, in 1998, Congress set baseball's antitrust exemption in stone by passing the Curt Flood Act, which revoked baseball's antitrust exemption with respect to employment issues, but explicitly maintained it for all other issues. Stated differently, Congress affirmatively carved out employment issues from baseball's antitrust exemption, but otherwise left "the business of baseball" exempt from federal antitrust laws.
Because of the Supreme Court's insistence that any change to baseball's antitrust exemption had to come from Congress, and because Congress expressly declined to make any change except with respect to employment issues, the federal courts, including the Supreme Court, must now defer to Congress's determination that baseball should continue to be exempt from antitrust laws. Regardless of how criticized it may be, if this exemption is to be changed, Congress will have to do the changing.
Baseball's exemption from federal antitrust laws was created by the Supreme Court in 1922 in Federal Baseball Club of Baltimore, Inc. v. National League of Professional Base Ball Clubs.5 In Federal Baseball Club, the issue was whether the league structure and the "reserve system," which restricted players' freedom to change teams,6 violated federal antitrust laws.7 Justice Holmes, writing for the Court, concluded that the antitrust laws did not apply to the business of baseball because the baseball teams were not involved in interstate commerce, even though they traveled from state to state to play the game.8He wrote:
The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. . . . That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place.9
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Thus, the Court held that "the restrictions by contract that prevented the plaintiff from getting players to break their bargains and the other conduct charged against the defendants were not an interference with commerce among the States."10
Federal Baseball Club's ruling was the origin of baseball's antitrust exemption, but—importantly—that exemption was rooted in the Supreme Court's conclusion that the business of baseball was a "purely state affair[]" that did not constitute interstate commerce. But baseball's exemption would not stay tethered to those roots.
The Supreme Court did not consider Federal Baseball Club again until thirty years later in Toolson v. New York Yankees, Inc.11 There, the only issue before the Court was the reserve clause, but in an opinion that totaled only the following one-paragraph, the Court went beyond the narrow issue before it to hold that baseball was generally exempt from the antitrust laws:
In [Federal Baseball Club], this Court held that the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws. Congress has had the ruling under consideration but has not seen fit to bring such business under these laws by legislation having prospective effect. The business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation. Without re-examination of the underlying issues, the judgments below are affirmed on the authority of [Federal Baseball Club], 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.12
The Court's truncated opinion thus seemed to apply two rationales for maintaining the baseball exemption: (1) the baseball industry's reliance on the exemption since 1922, and (2) Congress's failure to enact legislation to overturn Federal Baseball Club. And while Federal Baseball Club narrowly held that baseball was not engaged in interstate commerce, the Toolson court interpreted the case far more broadly as "determin[ing] that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws."13
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In his dissent in Toolson, Justice Burton pointed out the per curium majority opinion's dramatic overstatement of the Federal Baseball Club decision, arguing that that decision only held that professional baseball was not engaged in interstate commerce in 1922:
Whatever may have been the situation when the Federal Baseball Club case was decided in 1922, I am not able to join today's decision which, in effect, announces that organized baseball, in 1953, still is not engaged in interstate trade or commerce.
. . . .
In the Federal Baseball Club case the Court did not state that even if the activities of organized baseball amounted to interstate trade or commerce those activities were exempt from the Sherman Act. The Court acted on its determination that the activities before it did not amount to interstate commerce.14
The Toolson dissent also correctly stated that Congress had not enacted an express exemption of professional baseball from federal antitrust laws.15
Notwithstanding the Court's narrow holding in Federal Baseball Club (as pointed out by the Toolson dissent), the judiciary as well as the public embraced the view that baseball was generally exempt from the antitrust laws.
Following Toolson, in considering whether other types of sport or leisure were also exempt from federal antitrust laws under the same reasoning as baseball, the Supreme Court repeatedly refused to extend baseball's antitrust exemption to other sports or productions and limited the exemption to the "business of baseball."
In United States v. Shubert,16 the Court held that baseball's antitrust exemption would not extend to theatre productions and commented on its prior ruling in Toolson as follows:
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In Toolson, where the issue was the same as in Federal Baseball, the Court was confronted with a unique combination of circumstances. For over 30 years there had stood a decision of this Court specifically...
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