THE LAW AND THE ANOMALY OF PERFORMANCE: BASEBALL AS CULTURAL POLICY

• Pages: 37-64
• Date: 11 June 2003
• DOI: https://doi.org/10.1016/S1059-4337(03)29002-5
• Published date: 11 June 2003
• Author: Lara D Nielsen

THE LAW AND THE ANOMALY OF

PERFORMANCE: BASEBALL AS

CULTURAL POLICY

Lara D. Nielsen

ABSTRACT

The 1922 Supreme Court anti-trust exemption awardedto organized baseball

was quick to grasp the prerogatives of the emerging U.S. popular culture

industries, and displays the anomalies of performance in the law. The trade

and commerce in cultural performances yield contradictory opinions about

the distinctions between the functions of work and play, as well as the

properties of work and the performing arts. The interconnecting functions of

a sport like organized baseball, as an industry,an art, and a popular cultural

entertainment makes baseball a rich object for analysis in the perplexing

historical puzzle of decentralized U.S. cultural policy.

INTRODUCTION

What is it? Is it mere entertainment or is it an art? CLR James1

The Constitution, Jazz music, and Baseball: these are the three most beautifully designed things

this culture has ever produced. Gerald Early2

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 29, 37–64

Copyright © 2003 by Elsevier Science Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/PII: S1059433703290025 37

38 LARA D. NIELSEN

We tend to think of playing baseball or going to a baseball game as cultural acts with no

significantlegal implications.We alsoassume thata lawsuitchanging baseball’sexemption from

antitrust laws is a legal act with few cultural implications. I think both of these assumptions are

profoundly wrong, and that our understandings of the game and the lawsuit are impoverished

when we fail to account for the ways in which the game is a product of culture – how the

meaning of each is bound up in the other, and in the complex entanglement of law and culture.

Naomi Mezey3

Sport is not considered related to culture in any way in the United States. Americans relate

sport to physical health and mental relaxation. Charles C. Mark4

Baseballisa culture industry:Ithas workers,consumers,promoters, not tomention

popular appeal in everyday life and in the marketplace of entertainments. But is

baseball an art? If it is, then what is the status of creativity in baseball? Because

making the art of the game is clearly a business, what is the status of work in

the professional baseball industry? In the U.S. we know professional baseball is a

major entertainment, a so-called national pastime. The interconnecting functions

of a sport like organized baseball, as an industry, an art, and a popular cultural

practice narrating national and transnational histories, makes baseball a rich object

foranalysisin the perplexinghistorical puzzle ofdecentralizedU.S. culturalpolicy.

Major League Baseball is more curious still on its historic legal front, for the

U.S. Supreme Court’s award, in 1922, of baseball’s anti-trust exemption. In short,

the 1922 case grants organized baseball exemption from regulations that bind

other commercial culture industries and their interstate interests in the country.

Organized baseball never was, and is not now, a non-profit organization. It is

a private, money-making entity that is frequently presumed to function in the

public interest, often winning state and city funding for the building of stadiums

as, incredibly, public works. Fundamentally, baseball is a culture business that

observes its own rules of production and distribution in recognizably interstate

(and increasingly international) cultural exchanges. Finally, baseball is a highly

managed system of competition that traffics in teams of talent performance for

profit.

As an association of clubs (not to be confused with an association of players),

organized baseball’s 1922 antitrust exemption status distinguishes it from all

other U.S. culture industries, including other professional sports organizations.

Although baseball “play for pay” was becoming standard practice by 1862, in

1922 organized baseball answered to no special federal regulatory agency or

cultural policy. Curiously, readings of the 1922 decision show that organized

baseball’s infamous legal status hinges on the question of its function as a

performance: as exhibition, display, and show. In short, the Supreme Court

ruled that baseball clubs could not be regulated for antitrust activities explicitly