The rise of America's two national pastimes: baseball and the law.

• Author: Mitchell, Cleta Deatherage
• Position: 1999 Survey of Books Related to the Law

LEGAL BASES: BASEBALL AND THE LAW. By Roger I. Abrams. Philadelphia: Temple University Press. 1998. Pp. xi, 226. $27.95.

Mark McGwire's seventieth home run ball sold at auction in January of this year for $3,005,000.(1)

In late 1998, Baltimore Orioles owner Peter Angelos sued a former Orioles manager and his daughter in the Circuit Court of Cook County, Illinois. Angelos alleged that the original lineup card from the 1995 game when Cal Ripken, Jr., broke Lou Gehrig's consecutive game record belongs to the Orioles, not to the former manager and certainly not to his daughter.(2)

There may be no crying in baseball,(3) but there is money. And wherever earthly treasure gathers two or more, a legal system arises. From this confluence of forces is born Legal Bases: Baseball and the Law, a recent addition to that burgeoning genre of nonfiction works about the business and law of baseball.

Legal Bases intends to inform a lay audience about basic legal concepts that have shaped baseball as well as other aspects of American law and culture: antitrust law and monopolies, collective bargaining, labor arbitration, enforcement of private contractual rights, and an overview of the civil justice system. In the process, author Roger I. Abrams(4) introduces Legal Bases as a teaching tool that uses baseball as the backdrop to discuss the role in American society of law, legal institutions, and private ordering in the development of a significant American business enterprise (p. 3).

In the preface, Abrams writes that he knew as a Little Leaguer "that baseball would be an important part of my life.... To combine baseball and law in one project fulfills this Little Leaguer's dream" (p. ix). He goes on to advise that "[i]t is a lawyer's responsibility as a guardian of [the legal] system to teach the public about the legal process.... Baseball is tailor-made for this educational purpose, filled with colorful characters and perfect examples of the legal process in action" (p. x). Abrams's discussion "draws on both baseball and the legal process [to] show[] the law in operation, for better or for worse" (p. 3).

Baseball metaphors abound here as in most writing on the national pastime.(5) Abrams organizes Legal Bases around nine "All-Stars" culled from baseball's 150 years. Each represents a different chapter in baseball's legal history and embodies a different legal concept important to the development of the law relative to baseball. As this book evidences, the term "baseball nonfiction" can be oxymoronic. Well-written, interesting, informative, and often entertaining, Legal Bases is nonetheless shaded by assorted baseball "fictions" and liberal political orthodoxy.

BASEBALL AND THE RISE OF AMERICAN LEGAL PROCESS

John Montgomery "Monte" Ward

The opening chapter traces the origins of baseball in the nineteenth century and the rise of the National League and organized baseball. Abrams relates those events to the beginnings of the labor union movement and issues related to business regulation through the legal process.

Connecting this era of baseball and the law is Monte Ward, a pitcher for the New York Giants in the mid-1880s who, according to Abrams, was "[t]he only player in major-league history to win 100 games as a pitcher and collect 2,000 hits as a batter" (p. 7). "Ward, a Columbia-trained lawyer, organized the first players' union and created the ill-fated Players League that challenged the National League in 1890" (p. 7).

Abrams, discussing the efforts led by Ward in the 1890s to organize professional baseball players for collective representation, describes how and why those efforts failed. Abrams states that "[a]n organization of players would not play an important role again until the 1960s."(6)

Initially, Abrams is sympathetic to the players' plight as underpaid underdogs for most of the game's history, a tenor that is much diminished by Chapter Nine and the accounts of modern baseball. This shift closely tracks the evolution of baseball fans' attitudes generally. It seems that most fans favored the players' getting their fair share of the baseball financial pie right up until the time when it actually started to happen.

BASEBALL AND THE LAW OF CONTRACTS

Napoleon "Nap" Lajoie

Nap Lajoie, who Abrams calls "[t]he greatest second baseman of all time,"(7) is the second "batter" in Abrams's All-Star baseball legal history "lineup." In addition to his skills on the field, Lajoie is remembered for his role in one of the early legal proceedings involving baseball. Lajoie left the National League Phillies in 1901 to play for the Athletics in the newly formed American League, triggering a legal dispute over Lajoie's rights and obligations under his player contract (pp. 27, 31-36). This chapter, and this era in baseball, cover the full breadth of first-year law school curriculum: private contracts and their enforcement, with brief descriptions of the federal and state court systems, the notion of full faith and credit, negative injunctions, consent, mutuality, specific performance, and the general circumstances under which courts will enforce private agreements.

The Pennsylvania Supreme Court in 1902 found in favor of the Phillies in their suit to keep Lajoie from playing for the Athletics, determining that Lajoie was not "readily replaceable" by another player at his position (p. 34). On the issue of "mutuality," the court determined that, while the terms of the contract were not necessarily equal as between the parties, because Lajoie was paid a "large salary" by the Phillies,(8) the contract was enforceable through the issuance of a negative injunction. Thus, while the court could not and did not order Lajoie to play for the Phillies, it enjoined him from playing for the Athletics, or any other team (pp. 34-36). What Abrams calls the "[c]urious [a]ftermath" of the Lajoie decision was that the Athletics then traded Lajoie to the Cleveland Blues (p. 40). The Ohio courts refused to apply the legal principle of "full faith and credit"; they declined to enforce the Pennsylvania court's decision. Lajoie consequently continued to play for Cleveland, except when the team traveled to Pennsylvania, where he was prohibited by that state's highest court from playing for any club but the Phillies. The signing in 1903 of the National Agreement between the National and American Leagues allowed Lajoie to play for his team even in Pennsylvania (pp. 40-41).

BASEBALL AND THE ANTITRUST LAWS

Curt Flood

At the heart of Legal Bases is one of the enduring myths of baseball, beginning with the discussion in Chapter Three. Much of the recent literature on baseball describes how the United States Supreme Court, in one of its worst decisions ever, ruled in 1922 that the Sherman Antitrust Act did not apply to baseball because baseball was not engaged in interstate commerce. Thus armed, the baseball owners were allowed to function as a cartel for the next fifty years, running roughshod over the baseball players and the sport itself. There happens to be enough truth in the story of the ruling's impact to foster general agreement of its validity.(9)

It is an unfortunate shortcoming of the book, however, that someone of Abrams's apparent legal scholarship does not examine this particular baseball legend in any depth. The absence of serious contemplative discussion of antitrust regulation of baseball is disappointing and renders the book less valuable than it otherwise might have been.

Chapter Three explains the economics of and justifications for the reserve system,(10) the origins of antitrust law, and such legal concepts as restraint of trade and stare decisis. More importantly, the chapter focuses on the Supreme Court's decisions in three antitrust cases, now known as the "baseball trilogy": Federal Base Ball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs,(11) Toolson v. New York Yankees,(12) and Flood v. Kuhn.(13)

Federal Base Ball arose in 1915 when the Federal Base Ball League organized to compete against the existing leagues: the National League, the oldest league in Organized Baseball, and its junior counterpart, the American League. The three leagues, after some years of competing, and, after federal antitrust litigation had been filed by the Federal League in Chicago in January 1915, settled their differences in December 1915 (p. 55). This was due in no small part to the death of one of the Federal League's key financial backers in October 1915.(14) The club in Baltimore, however, refused to join the settlement and initiated its own lawsuit. The Baltimore club argued unsuccessfully that the National and American Leagues had engaged in illegal business practices against it in violation of the Sherman Act (pp. 56-58). The Supreme Court's test in Federal Base Ball was whether a baseball game was a "good" or "product" being imported from one state to another. Using that test, the High Court concluded that a game of baseball is primarily an exhibition, the transport of which across state lines is merely incidental to the enterprise.(15) While commentators have long derided the Court's decision in Federal Base Ball,(16) some analysts have observed that the holding in Federal Base Ball can only be read to extend to a "particular business at a particular time -- the business of exhibition baseball as it existed in 1922 -- and [that it] was not intended to extend further."(17)

Other lower court decisions after 1922 considered and applied Federal Base Ball,(18) but the Supreme Court did not review the application of the federal antitrust laws to organized baseball again until Toolson in 1953.(19) This time, the fact situation presented to the Court was not the organization of the leagues, but the reserve clause in player contracts (p. 60).

The Toolson Court determined that for more than thirty years organized baseball had relied on Federal Base Ball and the industry's "understanding that it was not subject to existing...