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\\jciprod01\productn\H\hls\4-1\toc401.txt unknown Seq: 1 21-MAY-13 11:11 Volume 4, Number 1 Winter 2013 Contents ARTICLES Who Exempted Baseball, Anyway? The Curious Development of the Antitrust Exemption That Never Was Mitchell Nathanson ................................................. 1 Touching Baseball’s Untouchables: The Effects of Collective Bargaining on Minor League Baseball Players Garrett R. Broshuis ................................................ 51 Baseball Arbitration: An ADR Success Jeff Monhait ...................................................... 105 \\jciprod01\productn\H\hls\4-1\ms401.txt unknown Seq: 2 21-MAY-13 11:11 Harvard Journal of Sports & Entertainment Law Student Journals Office, Harvard Law School 1541 Massachusetts Avenue Cambridge, MA 02138 (617) 495-3146; [email protected] www.harvardjsel.com U.S. ISSN 2153-1323 The Harvard Journal of Sports & Entertainment Law is published semiannually by Harvard Law School students. Submissions: The Harvard Journal of Sports and Entertainment Law welcomes articles from professors, practitioners, and students of the sports and entertainment industries, as well as other related disciplines. Submissions should not exceed 25,000 words, including footnotes. All manuscripts should be submitted in English with both text and footnotes typed and double-spaced. Footnotes must conform with The Bluebook: A Uniform System of Citation (18th ed.), and authors should be prepared to supply any cited sources upon request. All manuscripts submitted become the property of the JSEL and will not be returned to the author. The JSEL strongly prefers electronic submissions through the ExpressO online submission system at http://www.law.bepress.com/expresso. Submis- sions may also be sent via email to [email protected] or in hard copy to the address above. In addition to the manuscript, authors must include an abstract of not more than 250 words, as well as a cover letter and resume or CV. Authors also must ensure that their submissions include a direct e-mail address and phone number at which they can be reached throughout the review period. Permission to Copy: The articles in this issue may be reproduced and distributed, in whole or in part, by nonprofit institutions for educational purposes including distribu- tion to students, provided that the copies are distributed at or below cost and identify the author, the Harvard Journal of Sports & Entertainment Law, the volume, the number of the first page, and the year of the article’s publication. \\jciprod01\productn\H\hls\4-1\boe401.txt unknown Seq: 3 21-MAY-13 11:11 Volume 4, Number 1 Winter 2013 EDITORIAL BOARD Editor in Chief Miles C. Wiley Executive Editor Executive Editor Executive Editor Kelly Donnelly Jenna Hayes Brandon Hammer Online Content Chair Technical Chairs Submissions Chair Timothy Lamoureux Meredith Karp Mitch Drucker Max McCauley Submissions Committee Jay Cohen Timothy Fleming Jocelyn Keider Cody Lawrence Laura Lorenz Kimberly Miner Samuel Straus Jeremy Winter Article Editors John Avila Mitch Drucker Erica Esposito Dan Sinnreich McClain Thompson Line Editors Peter Byrne Damson Chung Tyler Keyser Meg Lenahan Stephen Volpe Daniel Waldman Editors Kelsey Bagot Jay Cohen Rick Corbett Alice Cullina David Dorfman Sabreena El-Amin Sean Fernandez-Ledon Timothy Fleming Sven Frisch Steven R. Green Simon Heimowitz Steven Horn Georgino Hyppolite James Ireland Ryan Issa Keith James Natalie Jay Jocelyn Keider Tilak Kolivaram Cody Lawrence Joshua Lee David Mainiero Kimberly Miner Ben Morris-Levenson Jaimie McFarlin Sarah Paige Alan Rozen Portney Joo-Young Rognlie Kyle Schneider Ben Simmons Kristen Spitaletta Samuel Straus Sam Stuckey Albert Teng Alison Tong Eitan Ulmer Scott Winston Jeremy Winter Albert Zhu Online Content Committee Erica Esposito Timothy Fleming Michael McGregor Kimberly Miner Joo-Young Rognlie Jeremy Winter Copyright 2013 by the President and Fellows of Harvard College. \\jciprod01\productn\H\HLS\4-1\HLS101.txt unknown Seq: 1 14-MAY-13 15:47 Who Exempted Baseball, Anyway? The Curious Development of the Antitrust Exemption That Never Was Mitchell Nathanson* Abstract This article takes a fresh look at baseball’s alleged antitrust exemption and explains why, after all, the exemption is alleged rather than actual. This article concludes that, contrary to popular opinion, the Supreme Court’s 1922 Federal Baseball Club decision did not exempt Organized Baseball from federal antitrust laws. Instead, the opinion was much more limited in scope and never reached the question of whether Organized Baseball should be treated differently than other, similarly situated businesses or institutions, although Organized Baseball clearly invited the justices to make this deter- mination in its brief to the Court. As this article discusses, the Court’s si- lence on this question spoke volumes as to just what it was ruling on and, more importantly, what it was not. Regardless, the notion of an antitrust exemption arising out of the Federal Baseball opinion eventually took root. This article attempts to answer the following questions: where did the no- tion of the exemption come from? When did it arise in the consciousness of the nation’s popular and legal experts? When did it actually arise as a matter of legal doctrine? How and why did the popular notion of the game’s ex- emption take root? And how and why did the exemption finally become a legal reality as opposed to a popular theory? In order to answer these ques- tions, this article bypasses the well-trod traditional mode of analysis with * Professor of Legal Writing, Villanova University School of Law. The author would like to thank Alyssa Mankin for her assistance in the research of this project. Copyright 2013 by the President and Fellows of Harvard College. \\jciprod01\productn\H\HLS\4-1\HLS101.txt unknown Seq: 2 14-MAY-13 15:47 2 Harvard Journal of Sports & Entertainment Law / Vol. 4 regard to this issue — the Supreme Court’s “baseball trilogy” (The 1922 Federal Baseball, 1953 Toolson, and 1972 Flood cases) — and instead tackles the issues from the perspectives of those who argued those three cases before the Supreme Court. Specifically, rather than simply analyzing the opinions themselves, this article examines the briefs filed by the parties which led to them. Through this process, the intent of the parties can be observed in light of the opinions that resulted from the Justices’ consideration of them. What did the litigants seek in their cases? For what did they believe they were arguing? How did they characterize the issues presented to the Court? By examining these briefs, and by comparing their arguments with the opinions that resulted, this article attempts to reach at least some prelimi- nary conclusions with regard to what the Court was saying, as opposed to what most scholars have come to believe it to have said. Through this pro- cess, this article likewise attempts to discern the nature and extent of each ruling within the baseball trilogy. What emerges is an analysis of law and baseball that throws new light on the game’s alleged antitrust exemption. TABLE OF CONTENTS I. INTRODUCTION ........................................ 3 R II. CONGRESS, THE CONSTITUTION, THE FEDERAL LEAGUE, AND ANTITRUST LAW IN THE EARLY 20TH CENTURY – A BRIEF REVIEW .............................................. 5 R III. FEDERAL BASEBALL CLUB OF BALTIMORE, INC. V. NATIONAL LEAGUE OF PROFESSIONAL BASEBALL CLUBS ................ 7 R A. Petitioner’s (Federal Baseball Club of Baltimore’s) Brief .. 11 R B. Defendant’s (Organized Baseball’s) Brief ............... 14 R C. The Opinion ....................................... 19 R IV. TOOLSON V. NEW YORK YANKEES, INC. ET. AL. ............. 24 R A. Petitioner’s (George Earl Toolson’s) Brief ............... 32 R B. Respondent’s (New York Yankees) Brief ................ 35 R C. The Opinion ....................................... 40 R V. FLOOD V. KUHN ....................................... 43 R A. The Opinion ....................................... 43 R B. Petitioner (Curt Flood’s) Brief ........................ 44 R C. Respondent’s (Bowie Kuhn, et. al.’s) Brief .............. 45 R D. Reaction to the Flood Decision........................ 47 R VI. CONCLUSION .......................................... 49 R \\jciprod01\productn\H\HLS\4-1\HLS101.txt unknown Seq: 3 14-MAY-13 15:47 2013 / Who Exempted Baseball, Anyway? 3 I. INTRODUCTION Among baseball legal scholars, the question of who exempted Organ- ized Baseball from the nation’s antitrust laws leads to an obvious answer: clearly, the United States Supreme Court did, in its 1922 Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs1 deci- sion. The Supreme Court itself echoed this conclusion when offered the op- portunity to reconsider its Federal Baseball decision in Toolson v. New York Yankees, Inc.2 during the Court’s 1952–53 term. Within that one paragraph per curiam decision, the Court hinted that Congressional silence on the mat- ter in the three decades since the Federal Baseball decision amounted to an affirmative endorsement of Federal Baseball, given the passage of time, and refused to discuss the matter further.3 Finally, two decades hence, in the last case of what is now commonly referred to as the “baseball trilogy,” Flood v. Kuhn,4 the Court closed the matter for good when it announced that al- though professional baseball was a business and was engaged in interstate commerce, the Federal Baseball and Toolson rulings would nonetheless