By Marshall H. Tanick
BridgeTower Media Newswires
“The only real game, I think, in the world is baseball.”
Babe Ruth (1939)
“Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case.”
Investopedia (Dec. 2, 2021)
What do America’s pastime, antitrust law and abortion have in common? They share a mutual nexus: They all raise pressing issues concerning the jurisprudential doctrine of precedent, or stare decisis.
The coming three-week period, running from Memorial Day weekend to the last weekend before summer includes noteworthy milestones in the evolution of the laws governing baseball
and other sports. They consist of the anniversaries of a pair of U.S. Supreme Court decisions regarding the national pastime, baseball.
Both of them have significant relation to the legal battle over abortion rights.
The cases are Federal Baseball v. National League, 259 U.S. 200 (1922), decided 100 years ago on May 27, 1922, and Flood v. Kuhn, 406 U.S. 258 (1972) handed down 50 years ago on June 19, 1972. Both of these cases have attracted renewed attention, and not only because of their long-standing and continued impact on sports law in this country.
Their link to abortion? The latter, relying upon the former, raises jurisprudential concerns at the heart of the national debate over the role of precedent in judicial decision-making.
The commemorations of these two cases comes at a time when baseball is experiencing turmoil following a three-month work stoppage this winter that delayed the 2022 season, which finally began a week late in early April.
The centenary and golden anniversary, respectively, of the two cases are worth recalling as the current baseball season reached its one-third point on the Memorial Day weekend and as the country contemplates the role of precedent, or stare decisis, in the law.
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Federal fracas
Both cases, Federal Baseball and Flood, were antitrust actions brought under the Sherman Act, the federal law proscribing unreasonable restraints of trade and other undue practices in business, 15 U.S.C. § 1, et seq.
The fracas in Federal Baseball involved an upstart league that challenged the existing major league establishment by alleging that the league’s efforts to wrest away key players and other predatory practices caused its demise after a brief three-year existence, one as a minor league and then as a competing “major” league from 1913 to 1915.
But ballplayers never made it around the basepaths after they initially prevailed on an $80,000 jury verdict, a large sum in those days. That decision was reversed on first-level appeal and tossed out by a unanimous ruling of the U.S. Supreme Court in a decision written by iconic Justice Oliver Wendell Holmes Jr. The court reasoned that “the exhibition” known as baseball was a game, rather than a “trade or commerce“ within the purview of the Sherman Act. In short, baseball was not a “business” subject to antitrust regulation, a rationale extended over the years in later rulings of the high court, and lower tribunals as well adhered to it in a variety of contexts.
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Flood fight
That principle resurfaced 50 years later in the legal fight in the Flood case, brought by star centerfielder Curt Flood, who was instrumental in his team, the St. Louis Cardinals, reaching the World Series thrice in the 1960s and winning it twice during that period. He sued Major League Baseball on antitrust grounds for requiring him under its standard contractual arrangements between players and teams to accept a trade from his team, a championship contender, to the then-lowly Philadelphia Phillies.
Encountering the tenet from Federal Baseball, the high court grudgingly dismissed the lawsuit, which had woven its way through the lower federal court system, in a decision by a 5-3 vote with the majority decision written by Justice Harry Blackmun, a St. Paul native and former 8th Circuit appellate judge. A baseball connoisseur, the onetime counsel for the Mayo Clinic devoted a substantial portion of his decision to ticking off the names of some 88 legendary baseball players, a list which he described as “endless,” although he overlooked a few, including pre-integration Black stars and, in his own later acknowledged oversight, New York Yankees home run slugger, Mel Ott, among others.
At any rate, after trotting out nostalgic names, he went on to uphold the ruling in Federal Baseball, although not without some jurisprudential angst. Declaring that professional baseball is “a business and it is engaged in interstate commerce,” contrary to the rationale of Justice Holmes in Federal Baseball, the Blackmun decision nonetheless refused to depart from that precedent on several grounds.
While recognizing the exemption granted to baseball as an “anomaly,” Justice Blackmun adhered to the judicially granted safe harbor from the antitrust laws to the tug of stare decisis. But precedent was not the sole factor that underlay Justice Blackmun’s decision. He also pointed to the repeated unsuccessful efforts in Congress to overturn that decision and stated that the legislative disinclination to do so represented an acquiescence that was more than “mere congressional silence and passivity,” but an implicit acceptance of the determination in Federal Baseball.
Further, he felt that upsetting stare decisis would create “confusion and uncertainty” that lent itself to legislation rather than judicial action. Consequently, his majority decision concluded that the “remedy, if any … is for congressional and not judicial action.”
The reaction to Justice Blackmun’s missive was mixed, but mainly on the negative side, with comments from critics such as “juvenile,” an “embarrassment,” among other epitaphs, along with a sprinkling of praise for his skillfully crafting a decision that brought along enough votes to produce a majority under the banner of stare decisis.
That principle, of course, is a the heart of the current controversy over the validity and viability of the precedent establishing the constitutional right of abortion stemming from the Supreme Court ruling nearly 50 years ago, one year after the Flood case, in Roe v. Wade, 410 U. S. 959 (1973). Roe’s existence is in grave jeopardy due to the imminent and expected dismantling of that right by the high court in its pending Dobbs v. Jackson Women’s Health Organization, No. 19-1392, argued last December and awaiting disposition soon following the leaking earlier this month of a draft majority opinion extinguishing that ruling and the right it established nearly five decades ago.
The legacy of these cases, especially Flood, ultimately led to the demise of the restrictive clauses in contracts in baseball and other professional sports and ushered in the era of free agency.
That movement was bolstered by a subsequent ruling by U.S. District Court Judge Earl R. Larson in Minnesota, invalidating the somewhat similar contractual restriction in pro football known as the “Rozelle Rule,” which paralleled the claim in the Flood case. In Mackey v. NFL, 47 F.Supp. 1000 (D. Minn. 1975), Judge Larson ruled that the restriction on player mobility constituted an antitrust violation under the Sherman Act, a decision that was later affirmed by the 8th Circuit, 543 F.2d 606 (8th Cir. 1976). The litigation spawned major structural changes in football and in other professional sports as well, achieving in large part what was unsuccessfully sought by the ballplayer litigants in the Federal Baseball and Flood cases, and extending to other professional sports, as well, including football, basketball and hockey, which all have developed their own rules and protocols facilitating mobility of athletes between teams subject to sone much less Draconian restrictions while also providing the foundation for the enormous escalation in players’ salaries across the board.
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Pastime or past tense
Baseball now has more serious problems, stemming from fading fan support rather than judicial jousts. Attendance has declined over the past few years due to COVID, an aging fan base, and fewer youthful participants in the sport. The crowning blow has been the diminished audiences for the sport’s showcase event, the World Series, a contest that, in 1975, had an average of 36 million viewers per game but last year barely attracted one-third of that number, about 12 million.
A “business” — and baseball is now a judicially denominated one — that sheds two-thirds of its customers is in serious trouble, leading observers to advance a number of proposals to maintain and replenish the sport’s popularity as a national pastime, rather than a past tense. A novel one came from an opinion piece at the start of this season in the New York Tines, calling for major league baseball teams to be purchased in a bail-out by the federal government, dispersed to local units of government, and then run by them like public sector utilities. See M. Walther “Save Baseball By Nationalizing It,” New York Times, April 10, 2022.
The baseball moguls are not oblivious to these concerns although many would say they are not moving with the needed alacrity to address them. Other more likely or feasible devices have included change in the game to make it more fan-friendly, including universality of the designated hitter rule, which had previously been confined to the American League only; use of “ghost” runners to start on second base in extra innings, to minimize prolonged games; speeding up the time for pitchers to deliver the ball to the plate; more double headers; and other features, some still on the drawing boards of the baseball establishment.
Whether those propositions, some fanciful and others feasible, will save the game or restore it to a measure of its past popularity remains to be seen. But baseball is, at least, trying to recognize its shortcomings and overcome them in the spirit of New York Yankee’s legendary slugger, Babe Ruth, who admonished followers to “never let the fear of striking out get in your way.”
But baseball is at a crossroads, which warrants heeding the sage advice of another Yankee Hall of Fame player of a later era, Yogi Berra, who remarked: “When you come to a fork in the road, take it.”
Or take heart from another Yogi bromide: “It’s never over till it’s over.”
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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
