Antitrust and Baseball: Stealing Holmes

Kevin McDonald

1. introduction this: It happens every spring. The perennial hopefulness of opening day leads to talk of LEVEL ONE: “Justice Holmes baseball, which these days means the business ruled that baseball was a sport, not a of baseball - dollars and contracts. And business.” whether the latest topic is a labor dispute, al- LEVEL TWO: “Justice Holmes held leged “collusion” by owners, or a franchise that personal services, like sports and considering a move to a new city, you eventu- law and medicine, were not ‘trade or ally find yourself explaining to someone - commerce’ within the meaning of the rather sheepishly - that baseball is “exempt” Sherman Act like manufacturing. That from the antitrust laws. view has been overruled by later In response to the incredulous question cases, but the exemption for baseball (“Just how did that happen?”), the customary remains.” explanation is: “Well, the famous Justice Oliver Wendell Holmes, Jr. decided that baseball was exempt from the antitrust laws in a case called The truly dogged questioner points out Federal Baseball Club ofBaltimore 1.: National that Holmes retired some time ago. How can we League of Professional Baseball Clubs,‘ and have a baseball exemption now, when the an- it’s still the law.” If the questioner persists by nual salary for any pitcher who can win fifteen asking the basis for the Great Dissenter’s edict, games is approaching the Gross National Prod- the most common responses depend on one’s uct of Guam? You might then explain that the level of antitrust expertise, but usually go like issue was not raised again in the courts until JOURNAL 1998, VOL. 2 the late 194Os, when there were several more of the baseball exemption: cases challenging baseball’s reserve clause on antitrust grounds. In fact, a Second Circuit [I]n Federal Baseball, Justice panel including Learned Hand held in 1949 that Holmes (very wise in many respects, an antitrust complaint against major league but not here) set forth a very limited baseball could not be dismissed on its face, view of interstate commerce. . . . because the plaintiff might prove that the ef- Federal Baseball, which held that fect of radio, television, and other developments professional baseball was not in in- had transformed the game into an enormous terstate commerce and thus not sub- interstate business.2 ject to the federal antitrust laws, is When one of those cases finally reached still the law today, enshrined on the the Supreme Court in 1953, however, the Court throne of stare decisis by Flood v. did not agree with Judge Hand, holding in aper Kuhn, even though it was described curium opinion that Holmes’ decision in Fed- by Justice Douglas in his dissent in eral Baseball would be followed “[wlithout re- that case as “a derelict in the stream examination of the underlying issue~.’’~The of the law.”j Supreme Court also made it clear that the rule of Federal Baseball would be strictly limited The reaction of others has ranged from to baseball, however, in a series of other deci- thumping denouncement (Judge Jerome Frank sions during the 1950s refusing to apply the of the Second Circuit called the decision, and same exemption to professional boxing and I am not making this up, “an impotent football. (“Oh, so baseball is exempt, but foot- ~ombi[e]”~)to gentle embarrassment on ball isn’t. That makes sense.”) Holmes’ behalf (Judge Henry Friendly, also The ballplayers gave it one more try in the of the Second Circuit, “acknowledge[d] early 1970s when Curt Flood flatly refused to . . , that Federal Baseball was not one of Mr. be traded from St. Louis to Philadelphia and Justice Holmes’ happiest days. . . .”’) On the persuaded the Supreme Court to revisit the facts, one recent Holmes biographer calls issue.4However, Justice Blackmun, in a giddy Federal Baseball “remarkably myopic, al- opinion that began with his listing eighty-eight most willfully ignorant of the nature of the of his favorite old-time ball players, pointed enterprise.”s On the law, Justice Douglas was out that Federal Baseball had never been over- at his most dismissive when noting in Flood ruled, that those involved in professional base- v. Kuhn that the “narrow, parochial view of ball had relied on their exemption from the commerce” reflected in Federal Baseball antitrust laws for fifty years, and that Congress could not survive the Court’s “modern deci- had failed to remove the exemption during that sion~.’’~ time. Thus, he concluded, it was up to Con- For still others, the Federal Baseball de- gress, not the Supreme Court, to change the cision is only Count I in a wide-ranging in- result in Federal Baseball. Congress has done dictment of Holmes’ antitrust expertise. nothing, so the exemption remains. Holmes’ dissent in Northern Securities Co. v. United States,’!) has received similar fail- ing marks. Hans Thorelli, the author of one of A. Brahmin Bashing antitrust’s weightiest tomes (the copy in my Plainly, Federal Baseball has left the anti- firm’s library weighs a daunting 6.1 pounds), trust lawyer’s Justice Holmes a rather be- dismissed Holmes’ opinion as follows: draggled figure. My colleague Joe Sims has provided a characteristically unvarnished sum- Undoubtedly Holmes was one of mation of what I take to be the prevailing view the great justices of this century, but STEALING HOLMES 91

it is doubtful whether he would have earned that reputation had he not in later cases reached beyond the level of sophistication evidenced in this dissent.I‘

Former Circuit Judge Robert Bork also has difficulty with Holmes in Northern Secu- rities, not because he dissented (Judge Bork would have dissented too), but because he so clearly rejected Judge Bork’s view of the original purpose of the Sherman Act.I2 Bork asserts instead that Holmes “mistook [Justice] Harlan’s meaning” in the majority opinion, and thus simply raised some fundamental questions not unworthy of analysis, but irrelevant in Northern Securitie~.’~When he had occasion to cite that dissent in an opinion of his own, Judge Bork characterized Holmes as “miscon- struing the rule applied by the maj~rity.”’~ “Holmes was the greatest legal thinker and Obviously, this is heavyweight criticism. greatest judge in our history.”I6Compare these These are famous judges and accomplished sentiments to the derision heaped upon Fed- antitrust experts; their disdain for Holmes’ an- eral Baseball (along with “zombie” and “der- titrust opinions in general, and Federal Base- elict,” it has been tagged with the law’s most ball in particular, is impressive. Placing the demeaning label: “limit[ed] . . . to [its] reputation of the author and the baseball opin- facts”I7),and the contrast is compelling. If this ion side-by-side, moreover, adds to the won- critique is accurate, Federal Baseball repre- derment. This is Holmes, after all. Despite the sents our most exalted judge at his lowest trendy deconstructions of recent years, moment. “Holmes remains the towering figure of American law.”I5 Those are the words of B. When Did He Lose His Fastball? antitrust’s own towering figure, Richard A. Posner, who concludes his introduction to a Several springs ago, I set out to discover symposium on the 100th anniversary of The how this could have happened. How could Path of the Law with the observation that Holmes be so wrong? Did his weak hold on

Eight new ball parks, including Chicago’s Wrigley Field (picturedabove), were constructed in 1913. Coal magnate James Gilmore (top) had persuaded a group of tycoons to finance them in order to transform the Federal League from a minor league in the Midwest into a third major league. 92 JOURNAL 1998, VOL. 2 antitrust issues cause him to misapprehend the If that is not enough to make you uncom- true interstate nature of professional baseball? fortable, consider this: Who is the antitrust Was he too old at eighty-one to see that big- oracle cited for the proposition that Federal league baseball was an essential thread in the Baseball is a “derelict in the stream ofthe law”? American fabric, a cultural fixture embodying William 0. Douglas. That is, the same Justice all the principles of healthy competition and who was responsible (along with Justice Black) sportsmanship that make it the quintessential for the theories of the 1960s that led to such national game? excesses as Von k Gr~cery,‘~in which the Court At this point, something clicked. I had a blocked a grocery store merger in Los Angeles mental picture of Holmes sitting across from because the post-merger store would have had the mountainous first Justice Harlan discuss- a five percent share of the market. The same ing the Northern Securities case, and saying: Justice who suggested that exclusive territo- “Now, hang on there, J.M.; you’re going too ries for paper routes might be illegal in Albrecht fast for me. Please repeat that last point.” It v. Herald,2O a case generally perceived as a dis- didn’t quite work. Most of these critiques ac- service both to the law of antitrust conspiracy knowledge that Holmes was brilliant in some and price fixing, and unanimously overruled by areas, but conclude that he was a dullard on the Supreme Court in 1997.’’ In other words, the question of antitrust. In other words, this is the “trees have standing” Bill Douglas,22 Holmes, master of the common law of unfair being widely quoted to bash Holmes on an competition and at the height of his powers antitrust issue. (And you thought the ’69 Mets on the Massachusetts Supreme Judicial Court were surprising.) when the Sherman Act was passed in 1890,just That did it. I decided it was time to re-read did not get it. Sure, he got lucky on some First Federal Baseball, Toolson, and Flood v. Kuhn. Amendment cases, and was dead solid perfect They in turn led me to read some other things. on Lochner, but this antitrust stuff was too much The result was a historical romp that ultimately for him. focused on two of baseball’s most fascinating Poor dumb Holmes. eras, some thirty years apart. The featured base- And poor dumb Brandeis, too. The Fed- ball personalities are larger than life, ranging eral Baseball decision was unanimous, after from Shoeless Joe Jackson and Babe Ruth to all. You are not as much to blame if you did Casey Stengel and Stan Musial. The same holds not write the opinion, but it can’t be one of for the judges, from Holmes and Hand to your “happiest days” either. (Whether one Frankfurter and Douglas. Most of the journey praises or denounces Brandeis’ responsibil- consists of simply following the progress of ity for the Federal Trade Commission Act, he baseball in the antitrust courts from Federal is seldom accused of being a dull tool.) Poor Baseball in 1922 to Flood in 1972. With the dumb Chief Justice Taft, as well. Taft is re- knowledge gained along the way, we can step vered by most antitrust historians, including back and ask whether the antitrust laws could Judge Bork, for his opinion while still a Cir- be applied to professional baseball now with- cuit Judge in the Addyston Pipe case‘8--one out repudiating Federal Baseball. We may of the first decisions to make it clear that the find that the truth about the baseball “exemp- Sherman Act had not unwittingly outlawed vir- tion” and the conventional wisdom are some- tually all commercial arrangements. Such a what different; as different as Ty Cobb and Joe prescient thinker must certainly have looked DiMaggio; as different as the telegraph and the back with shame on his vote in Federal Base- television; as different as baseball in 1919 and ball if it is as bad as the conventional wisdom baseball in 1949. holds. STEALING HOLMES 93

II. Antitrust in 1919 Senators, could not match. Griffith boldly went to Chicago and asked Charley Comiskey A. The Federal League for the $10,000, on the grounds that Comiskey Since the predecessor of the current Na- would not want the Big Train drawing crowds tional League was founded in 1876, several ri- away from his cross-town White Sox. val leagues have sprung into existence. While Comiskey complied, and Johnson remained a most of these upstart leagues are gone, nearly Senator. After two reasonably successful sea- all could be described as “successful,” at least sons,26the Federal League brought an antitrust for many of those who made and controlled the suit against all the National and American investments. The story of the Federal League League teams, which was heard by a federal fits comfortably within the general pattern: A judge with a name worthy of a power forward group of exceptionally wealthy men quickly in the NBA: Kenesaw Mountain Landis. Per- formed a league to compete head-to-head with haps auditioning for his future role as the National and American Leagues, easily baseball’s first commissioner,Landis simply sat lured many outstanding players with the prom- on the case.*’ With the lawsuit standing still, ise of more money, and ultimately merged much and the over-supply of professional baseball of the new league and its assets with the exist- failing to create its own demand in the mid- ing league for hefty c~mpensation.~~ 19 1Os, the Federal League suit was resolved by The Federal League was a minor league in the “Peace Agreement” reached in December the Midwest when coal magnate James A. 19 15. The agreement required the defendants Gilmore became its president in 19 13. He soon to assume $385,000 in Federal League players’ persuaded a group of businessmen to convert contracts; it allowed Weeghman to buy the the Federal League into a third major league. Chicago Cubs, and Phil Ball the St. Louis The group included cafeteria king Charles Browns; it provided for substantial annual pay- Weeghman (Chicago), oil tycoon Harry Sinclair ments to several of the Federal League owners (Newark), bakery executive Robert B. Ward over many years; and it transferred two of the (Brooklyn), and ice-and-fuel operator Phil Ball new Federal ball parks to organized baseball. (St. Louis).24Eight new ball parks were erected The Federal Baseball Club of Baltimore in three months, one of which grew up to be would have none of this treaty. That club was Wrigley Field. therefore excluded from the settlement, and it Many top players were enticed away by filed the antitrust suit that became Federal the Federal League’s offers of more money, Baseball. The case was tried in Washington, including Joe Tinker, Hal Chase, Mordecai D.C., during the spring of 1919. The jury came “Three Finger” Brown, and Eddie Plank back on April 12, with a plaintiff’s verdict for (baseball’s winningest left-handed pitcher). $80,000, which was trebled as provided in the For the National and American League play- statute.28In December 1920, however, the Court ers who did not jump, the resulting price wars of Appeals, “after an elaborate discussion, held for their services were fierce. For example, that the defendants were not within the Sherman Ty Cobb’s salary doubled, and Tris Speaker The plaintiff chose to stand on the received the stunning sum of $18,000 per year record and appeal directly to the Supreme to remain with the Boston Red Sox.*’The caf- court. eteria king, Weeghman, was especially driven to buy Washington’s Walter Johnson (who had B. Federal Baseball.. The Opinion gone a mere 36-7 in 1913) for his Chicago The opinion in Federal Baseball was clas- Whales. His offer of a $16,000 salary and a sic Holmes; after describing the “nature of the $10,000 signing bonus was one that the finan- business” of organized baseball, he set out his cially strapped Clark Griffith, owner of the legal analysis in a single, intense paragraph, 94 JOURNAL 1998, VOL. 2

After World War II the leader of the Mexican League, a wealthy busi- nessman named Don Jorge Pasquel (left), decided to turn the tables on the American leagues by recruiting their best talent by offer- ing exorbitant salaries. When Pasquel tried to lure the great Stan Musial from St. Louis (below, slid- ing home), however, he so rattled the U.S. leagues that the president of the Cardinals, Sam Breadon, flew to Mexico City and somehow per- suaded him to quit making such wild offers. STEALING HOLMES 95 which I will quote momentarily in all its damn- mere act of a person in allowing him- ing brevity. In that paragraph, he first addressed self to be transported from one State the issue found conclusive by the Court of Ap- to another, without any personal ef- peals, that is, whether the interstate aspects of organized baseball were sufficient to bring it within the Sherman Act, or were merely “inci- In other words, even if something is not com- dental” to the concededly local exhibition it- monly considered an item of commerce (e.g., self. This analysis had been established by the a person), it can affect interstate commerce sim- Supreme Court in Hooper California.30I say v. ply by its interstate transport. the baseball exhibition itself was “concededly” Holmes responded in a two and a half-page local because the plaintiff was careful not to opinion, the essence of which is this: argue in its brief to the Supreme Court that the game itself was interstate commerce: [ 11 The business is giving exhibitions of base ball, which are purely state The Court is not concerned with affairs. It is true that, in order to at- whether the mere playing of baseball, tain for these exhibitions the great that is the act of the individual player, popularity that they have achieved, upon a baseball field in a particular competitions must be arranged be- city, is by itself interstate com- tween clubs from different cities and merce.. . . States. But the fact that in order to give the exhibitions the Leagues must The question. . . is whether the induce free persons to cross state business in which defendants were en- lines and must arrange and pay for gaged when the wrongs complained their doing so is not enough to change of occurred, taken as an entirety, the character of the business. Accord- was interstate commerce. . . ing to the distinction insisted upon in Hooper v. California, 155 U.S. The plaintiff argued that, even if the exhibi- 648, 655, the transport is a mere in- tions were not interstate, the interstate travel cident, not the essential thing. [2] required to bring them about, as well as sev- That to which it is incident, the exhi- eral other interstate “incidents” (e.g.,telegraph bition, although made for money reports, baseball and equipment contracts, would not be called trade or com- etc.), demonstrated the interstate nature of or- merce in the commonly accepted use ganized baseball. of those words. As it is put by the de- In the remainder of the crucial paragraph, fendants, personal effort, not related Holmes responded to the argument made by to production, is not a subject of the plaintiff to counter the defendants’ even commerce. That which in its consum- broader assertion that “[plersonal effort, not mation is not commerce does not related to production, is not a subject of com- become commerce among the States merce.” That point is irrelevant, the plaintiff because the transportation that we had argued: have mentioned takes place. To repeat the illustrations given by the Court . . .[W]e are not concerned with below, a firm of lawyers sending out any such question here. It may be a member to argue a case, or the passed by saying. . . that interstate Chautauqua lecture bureau sending commerce may be created by the out lecturers, does not engage in such 96 JOURNAL 1998, VOL. 2

commerce because the lawyer or lec- of baseball “would not be called trade or com- turer goes to another State.33 merce as those terms were commonly under-

As usual, the concepts are densely packed, the Nor is Professor White’s reading new. Al- pace is quick, and the prose is free of patroniz- though Holmes’ opinion was little noted when ing words of transition (e.g., ‘‘now I will turn it came out, a rash of commentary appeared as from Hooper v. California to consider the second series of cases culminating in the plaintiff’s other argument . . . .”) I have placed Supreme Court’s 1953 Toolson decision moved a [ 11 and [2] in brackets to indicate the point at through the courts. In a typical description, the which he turns to consider the second argu- Haward Law Review had Holmes’ opinion ment. Plainly, it is the second argument that has resting on dual grounds, holding that been the principal source of derision among baseball was a local enterprise un- antitrust lawyers over the years. For its under- changed in character by the elements lying assumption is the outdated notion that of interstate transportation incident to “services” should be treated differently under the exhibition, and that personal ef- the antitrust laws than “manufactures.” (Today, fort in the sport, since unrelated to the antitrust economist would point out-while production, was not a subject of com- gesturing with an extinguished pipe-that one mer~e.~~ can measure the price elasticity of demand as effectively for legal services as for shoes.) When Learned Hand issued his 1949 opinion Thus, that second, or alternative, argument is in favor of a ballplayer named Danny Gardella, the one that rankles; those are the words from a commentator could not resist pointing out which Holmes fans avert their gaze. that Holmes’ opinion required any successful If you think that describing Holmes’ para- antitrust plaintiff to jump through two separate graph as a two-part argument in the alternative hoops: is contrived, rest assured that it has been so construed as far as I am aware by every com- mentator and Judge that has addressed the In order to bring “organized baseball” question. No less a student of Holmes than G. within the purview of [the antitrust] Edward White has written that the “critical para- laws, two fundamental questions must graph’’ of Holmes’ opinion be answered in the affirmative. (1) Is baseball an interstate activity? (2) Is made the following arguments in suc- baseball trade or commerce?” cession. . . . The transport [in inter- state commerce] was merely ‘inci- Since both questions must be resolved in the dental’ to the exhibition. The exhibi- plaintiff’s favor, the author argued, giving a dif- tion, in fact, could not be called ‘trade ferent answer to the first question, as did or commerce’ at all. . . .34 Learned Hand in Gardella, is insufficient to change the result in Federal Baseball: He even describes the place in the paragraph where I have inserted a ‘‘[,I” as the “point . . . The rationale of the Federal [Base- where Holmes sought to move on from his dis- ball] case is that baseball is not trade cussion of. . . interstate transportation” as in- or commerce, and it is submitted that cidentally affecting commerce, in order to the court’s decision would have been make the additional point that the exhibition quite the same had the facts shown STEALING HOLMES 97

that every ball park was located on a for being on other issues, that is, “a strikingly state line and the players had to pass modem figure who anticipated the temper of from one state to another as they ran an America which had not yet been If from first to second base.38 a deeper understanding of Federal Baseball can be found -or at least an understanding of The judges, too, strained to find a grace- what went wrong - it will be worth the effort ful exit for Holmes with the common under- only if we keep our standards high. He must standing that Federal Baseball had “decided walk away under his own power or stand and that professional baseball was then neither take his medicine. This is Holmes, after all. ‘commerce’ nor ‘interstate.”’39Justices like Sherman Minton4” and Felix Frankfurter4’ 111. Antitrust in 1949 would have accepted the result in Federal A. The Mexican League Baseball and applied it to other sports. Jus- tices like William 0. Douglas4*and William As America’s soldiers returned triumphant Brennan43would have overruled it outright. to home, hearth, and ballpark after World War Justices like Earl Warren44and Tom Clark4j 11, the next serious competitive threat to major ultimately persuaded their Brethren to accept league baseball was launched by five dazzling the holding of Federal Baseball but confine brothers named Pasquel: Don Jorge, Alfonso, it to a single sport. Yet none of these judges Gerardo, Bernardo, and Mario.49They con- questioned the prevailing reading of Holmes’ trolled the Mexican League, which was eager opinion. Thus, when the Supreme Court last to expand and improve its image. The eldest considered the question in Flood v. Kuhn, sev- brother, Don Jorge Pasquel, had a personal for- eral Justices dissented, but none disputed Jus- tune estimated at $30 million, and in 1946 he tice Blackmun’s description of Federal Base- decided that it would be interesting to have his ball as a dual holding that baseball “was not league - long drained of its best talent by ‘trade or commerce in the commonly-accepted American teams -return the favor. There was use of those words’ . . . ; nor was it interstate, a collective gasp before the 1946 season when because the movement of ball clubs across Luis Olmo of the Dodgers announced that he state lines was merely ‘incidental’ to the busi- had signed a three-year contract to play in ness. ’’46 Mexico for $40,000.50 This is understandable. For Holmes does Despite the size of the offers, few of the address a two-part argument, and the “trade or early defectors were stars, or even players who commerce” aspect of the opinion has stood were breaking their contracts, and the Mexican as an enduring obstacle to those who would League threat was largely regarded as “a nui- defend him. It has frustrated glib attempts to sance rather than a pr~blern.”~’Then three New let Holmes off the hook with nice debating York Giants under contract for 1946, including points or facile attempts to switch the burden starter George Hausmann, jumped to Mexico. of persuasion. (One could, for example, note Commissioner William “Happy” Chandler re- that the trial court had directed a verdict for sponded with a warning that those who did not the plaintiff, and argue that the verdict would report for the season would be suspended for have had to be reversed anyway.”) But that is a five years. Neither the players nor the Pasquels good thing; this mission is not for sycophants. desisted, however, and early in the season the The reputation of Federal Baseball is as tar- Mexican League scored its finest catch to date nished as it is because Holmes is said to have by signing three St. Louis Cardinals. Most no- been wrong - dismally wrong -both on the table was pitcher Max Lanier, who had already law (antitrust) and on the facts (baseball). He won his first six stark5* failed to be precisely what he is given credit It was then that Don Jorge crossed the line. 98 JOURNAL 1998, VOL. 2

He went after Stan the Man. Stan Musial was After Breadon’s meeting, two things com- only twenty-five in 1946, and just back from a bined to end the competitive threat from the year in the Navy, but he had already proven that Mexican League, First, the Pasquels stopped he was “the National League’s greatest player making wild offers. Second, most of the players and drawing card. . . .’753 In his first four sea- who went to Mexico came back like a spiked sons, he led St. Louis to four pennants and volley ball, howling in protest over the condi- three world championships; he won the bat- tions in the Mexican “show.”59In all, only sev- ting title in 1943 and placed second in 1944. enteen players broke their contracts in 1946.h0 He was an all-star twice, and in 1943 was voted But the legal threat had just begun, for the the league MVP. He would go on to play in ten circumstances of the Mexican League defec- more all-star games and win two more MVP tions and blacklisting combined to create “an awards (1 946 and 1948). He placed second in almost exact parallel to the Federal League MVP voting four more times, including 1957, controversy” of the teem6’And the returning the year he won his last batting title at age 36.j4 (and suspended) players had little choice but Beyond his talent on the field, however, Stan to sue; by 1948, Max Lanier was pitching in epitomized the postwar wholesomeness to Quebec and Mickey Owen was an auctioneer which professional baseball had so longingly in rural Missouri. Thus did the case of Danny aspired. As he was intensely courted by the Gardella, an undistinguished former outfielder Mexican League that spring, St. Louis papers for the New York Giants, who was then sup- reported that the “apple-cheeked” father of two porting himself as a hospital orderly, come small boys and a baby girl was “moving his fam- before the Second Circuit Court of Appeals. ily from a crowded hotel to a furnished bun- galow in southwest St. Louis.”55 B. Gardella‘s Helping Hand The Pasquels pursued Musial with pur- pose. When he rebuffed their initial offers, they The opinion in Gardella v, Chandlerh2fits offered more, until the amount reported grew to well among the quirks and oddities that fre- $130,000 for five years, with a $65,000 sign- quent the history of baseball’s antitrust exemp- ing bonus. Don Jorge must have thought he was tion. For one thing, the principal opinion - getting close, because he sent his brother coming first and announcing the judgment in Alfonso and player-manager Mickey Owen (for- favor of the plaintiff - was the dissent by merly of the Dodgers) to St. Louis to close the Judge Chase. For another, one of the two sepa- deal, and he announced to the fans at Vera Cruz rate majority opinions was authored by the bom- that Musial was on the way.5bAfter a “long bastic Jerome Frank, who waited no longer than conference” in early June, however, Musial the first sentence to characterize Holmes’ Fed- turned them down again.57 eral Baseball opinion as an “impotent At that point, Sam Breadon, the President ~ornbi[e].”‘~And Judge Frank was only warm- of the Cardinals, had had enough. He quickly ing up at that point; he would ultimately liken traveled to Mexico City to have his own “long the reserve clause to slavery, calling it “shock- conference” with the Pasquels. Although ingly repugnant to moral principles that, at least Breadon’s hope for complete secrecy was since the War Between the States, have been dashed when he ran into a vacationing Cleve- basic in America.”h4Those who would defend land sportswriter in the hotel lobby, precisely it (such as his Brother, Judge Chase, appar- what transpired at the meeting remains a mys- ently) must of necessity be “totalitarian- tery. We only know that Don Jorge came out minded.”65 and announced that he would no longer seek The other majority opinion was written by to lure players away from “my friend, Sam the seventy-seven-year-old judicial icon, Bread~n.”~~ Learned Hand. Hand instantly focused on the STEALING HOLMES 99 obvious difference between professional base- missed on its face) to declare the reserve clause ball in 1919 and 1949, to wit, the central role perse legal on the one hand (Judge Chase) and of broadcasting by radio and television. The a virtual violation of the Thirteenth Amendment business was no longer limited to giving exhi- on the other (Judge Frank). Nonetheless, an bitions of baseball to patrons at a ballpark, Hand immediate question arises from Hand’s analy- observed, but to viewers and listeners in other sis: what about the alternative argument in Fed- states as well: eral Baseball? If, as Professor White and so many others have noted, Federal Baseball held [Tlhe situation appears to me the same “that baseball was neither a subject of com- as that which would exist at a “ball merce nor an interstate activity,”hRhow can the park” where a state line ran between result change simply by raising the level of in- the diamond and the grandstand. Nor terstate activity until it is not incidental? can the arrangements between the de- Doesn’t the second argument considered by fendants and the companies be set Holmes mean that Federal Baseball would down as merely incidents of the busi- have come out the same way even if the bleach- ness, as were the interstate features ers had been in New Jersey? in Federal Baseball Club v. National Worse yet, Learned Hand did not even ad- League, supra. On the contrary, they dress the issue. This is especially disturbing are part of the business itself, for that when contrasted with the opinion by Judge consists in giving public entertain- Frank, who overcame the interstate commerce ments; the players are the actors, the point much as Judge Hand did, but then noted radio listeners and the television spec- that Holmes’ opinion “assigned as a further tators are the audiences.66 ground of its decision that the playing of games, although for profit, involved services, and that Far from an obstacle, Hand found the Federal services were not ‘trade or c~mmerce’.’’~~Judge Baseball opinion helpful in its recognition that Frank handled this “further ground” by argu- the “incidents” to the exhibition were inter- ing that later decisions of the Supreme Court state in nature, even though insufficient then had “undeniably repudiated” this view, and that lower courts could therefore properly treat Fed- “to fix the business - at large - with an in- terstate character.” Thus, on remand, the issue eral Baseball as limited to its first ground - at trial would be the “incidental” interstate aspects.’O But that reasoning compels the conclusion that Holmes was simply wrong on the second point and whether all the interstate activities of overruled sub silentio. This kind of anticipa- the defendants - those, which were tory overruling of the Supreme Court, more- thought insufficient before, in con- over, is a dangerous practice for a lower court, junction with broadcasting and tele- as Judge Chase powerfully argued in his dis- vision -together form a large enough sent. part of the business to impress upon As a judge, Learned Hand was a first-bal- it an interstate character. lot hall-of-famer. Constitutional scholar Gerald Gunther has noted that “Hand is numbered Hand’s next sentence concluded with an odd among a small group of truly great American note of frustration: “I do not know how to put judges of the twentieth century.”” What ex- it in more definite terms.”67 planation can there be for his failure to step That frustration may have come from see- up to the controlling second argument, for his ing his two Brethren reach out (in a case that addressing only the easy and obvious point, and asked only whether a complaint should be dis- then expressing pique at his inability to resolve 100 JOURNAL 1998, VOL. 2 the issue in “more definite terms”? Did he ig- enacted.76 nore the issue because he had too much respect The effect of Gardella was even more pro- for Holmes to concede that Holmes had been nounced in the courts, where it generated a new wrong, or at least hopelessly archaic, in Fed- supply of antitrust plaintiffs. When George Earl eral Baseball? Unless there is something more, Toolson sued the Yankees, for example, he had Gardella leads us to conclude that the only way not been blacklisted for going to Mexico; he to reach the right result in 1949 without ex- was not even a Yankee. He had simply refused pressly rejecting Holmes in Federal Baseball, to accept a demotion from the Yankees’ AAA even for the inimitable Learned Hand, was to farm team in Newark to their Class AA farm cut a jurisprudential corner. team in Binghamton. And although virtually If so, Federal Baseball has claimed yet all lower courts facing antitrust attacks on pro- another great judge as a victim. If so, Holmes fessional baseball quickly dismissed them on and his beleaguered opinion are in deeper than the authority of Federal Baseball,77it was ever. Gardella that provided the essential “split” in Circuit Court authority and ultimately led to the IV. From Toolson to Hood Supreme Court’s grant of certiorari in several cases, including Toolson v. New York Yankees, The repercussions of Danny Gardella’s Inc. success were swift and dramatic, both for base- The trial judge in Toolson had framed the ball and the antitrust laws. The Gardella deci- issue as “whether the game of baseball is ‘trade sion was issued on February 9, 1949, perhaps or commerce’ within the meaning of the Anti- to coincide with the opening of spring training. Trust Acts.” He noted that Gardella was “[tlhe Commissioner Chandler was suddenly inspired only decision directly challenging [the] present to “temper [Ijustice with mercy,” and issued a day validity” of Federal Baseball, but he was declaration of amnesty for all Mexican contract entirely unimpressed jumpers for the 1949 season.72Eight months later, during the 1949 World Series, the by the opinion of Judge Frank wherein Gardella case was settled for $60,000 - an act that seemed to close the chapter on the he assumes the role of crystal gazer Mexican League challenge to professional in attempting to determine in advance baseball. that the Supreme Court is going The legal repercussions, however, were to . . . reverse the Federal Baseball more significant. First, Congress began to look Club case.78 into the affairs of baseball. The Subcommit- tee on Study of Monopoly Power of the House Thus, the issue was clearly framed for the Su- Judiciary Committee would issue a report in preme Court in Toolson, and it had three obvi- 1952 concluding (unsurprisingly)that organized ous choices: (1) uphold the dismissal on the baseball was “intercity, intersectional, and in- strength of Federal Baseball, as had every ter~tate.”~~Accordingly, “with due consider- lower court except the Second Circuit, (2) re- ation of modern judicial interpretation of the verse the dismissal based on the reasoning of scope of the commerce clause,” Congress could Learned Hand in Gardella, or (3)overrule Fed- and should “legislate on the subject of profes- eral Baseball for the reasons suggested by sional baseball.”74Many bills were introduced Judge Frank and others. But the Court took at that time and thereafter, which would have none of these courses. Instead, it took the first codified the holding in Federal Baseball by step in the greatest bait-and-switch scheme in providing an express exemption.15None were the history of the Supreme Court. STEALING HOLMES 101

Daniel Gardella, an undistinguished former outfielder for the New York Giants, was supporting himself as a hospital or- derly when his case challengingthe black- listing of players who had joined the Mexi- can League came before the Second Cir- cuit Court of Appeals in 1949.

A. The Bait Well, now. You can stare at the Federal The Toolson decision was handed down Baseball opinion as long as you like, but there per curium. In a single paragraph, shorter even is no suggestion - express or implied - that than the pivotal paragraph in Holmes’ opinion, the Congress of 1890 intentionally exduded the Court noted that, due to Federal Baseball, baseball from the Sherman Act. The Toolson “the business has thus been left for thirty years Court seemed to imply that it had unearthed to develop, on the understanding that it was some previously unknown piece of legislative not subject to existing antitrust legislation.” history, that may have gone like this: Thus, “if there are evils in this field which now warrant application to it of the antitrust laws it Senator Edwards: Surely the Sena- should be by legislation.” The paragraph - tor from Ohio does not suggest that and the opinion - then concluded with this this Anti-Monopoly law - this Ma- stunning sentence: gna Carta of the working class - would be applied to the purveyors of Without re-examination of the under- our beloved national pastime! (The lying issues, the judgments below are Louisville Colonels are white-hot, by affirmed on the authority of Federal the way.) Baseball Club of Baltimore Nu- v. Senator Sherman: Of course not, tional League of Professional Base- Senator. ball Clubs, supra, so far as that de- cision determines that Congress had no intention of including the business If such a passage exists, neither the author of of baseball within the scope of the Toolson nor any one since has disclosed it. federal antitrust laws.79 Indeed, the last sentence of Toolson reads 102 JOURNAL 1998, VOL. 2 like an oxymoron. How can one affirm Fed- lower court’s opinion), and that is where he eral Baseball “so far as that decision deter- stumbled: mines that Congress had no intention of in- cluding the business of baseball” within the Although counsel [in Federal Base- Sherman Act, when that decision “deter- ball] did argue that the activities of mined” no such thing? If that is the case, in the organized baseball, even if amount- apt phrasing of a contemporary law review ar- ing to interstate commerce, did not ticle, “Toolson would then seem to reaffirm violate the Sherman Act, the Court nothing. ”8n significantly refrained from express- Let us take some names here. The seven ing its opinion on that issue.x3 members of thisper curium majority were Earl Warren, Felix Frankhrter, Hugo L. Black, Will- Justice Burton did not cite anything in Fed- iam 0.Douglas, Robert H. Jackson, Tom Clark, eral Baseball to support this view, nor could and Sherman Minton. This is arguably as pow- he. For the notion that the Court “refrained erful a line-up as that of the 1995 Cleveland from expressing its opinion” on the alterna- Indians, for whom the first baseman batted tive argument is hard to square with the actual eighth.” As will become clear, however, not words Holmes used: “As it is put by the de- even all of these Justices realized the import of fendants, personal effort, not related to pro- that mischievous last sentence in Toolson. duction, is not a subject of commerce.”x4 Justice Burton,joined by Justice Reed, dis- Holmes even chose to “repeat the illustrations sented in Toolson. He made short work of the given by the Court below” to show that law- new notion that there had been any kind of yers and Chautauqua lecturers do not engage congressional exemption exclusively for base- in commerce simply by going to another state ball: “The [Federal Baseball] Court did not to provide their services. state that even if the activities of organized Justice Burton elsewhere showed his lack baseball amounted to interstate trade or com- of comfort with the second argument in Fed- merce those activities were exempt from the eral Baseball with his references to the “mod- Sherman Act.” Relying heavily on the changes ern” definition of commerce, and to the facts in baseball since Holmes had written, especially and circumstances of baseball “now.” He even radio and television (“[rleceipts from these included a footnote with a string-cite to the media of interstate commerce were nonexistent cases that later rejected the restricted view of in 1929”) and the elaborate system of minor commerce that prevailed in 1922 - the same leagues “throughout the United States, and cases relied on by Judge Frank in Gardella.x5 even in Canada, Mexico and Cuba,” Justice This demonstrates, once again, the stubborn- Burton pronounced it “a contradiction in terms ness ofthe alternative argument for those who to say that the defendants in the cases before would attempt to preserve Federal Baseball’s us are not now engaged in interstate trade or reasoning while changing its result. Justice commerce.”82 Burton’s heart was in the right place, but we Like Learned Hand, Justice Burton argued cannot evade the hard question by asserting - that the result he sought was consistent with inaccurately - that Holmes evaded it. Federal Baseball, because that case did not foreclose the eventuality that the interstate as- pects of the business would someday become B. The Switch more than “incidental.” Unlike Hand, however, No doubt because it finds no support in Justice Burton could not bring himself to ig- the statute or in Federal Baseball, the Toolson nore the alternative “trade or commerce” ar- Court’s attempt to insert an express exclusion gument (it was, after all, the sole basis of the for baseball into the Sherman Act made no im- STEALING HOLMES 103

cedent another decision, also authored by Holmes only one year after Federal Baseball, concerning an interstate vaudeville circuit. In Hart v. B.E Keith Vaudeville Exchange,89 Holmes had applied precisely the same analy- sis as in Federal Baseball, but because the Hart complaint had been dismissed without a trial for lack ofjurisdiction,the Supreme Court reversed and remanded it to the Southern Dis- trict of New York on the ground that “what in general is incidental in some instances may rise to a magnitude that requires it to be considered independentl~.”~~Chief Justice Warren there- fore argued in Shubert that Federal Baseball and Toolson could not have intended an anti- trust exemption for “every business based on the live presentation of local exhibitions.” Ac- cordingly, “[ilf the Toolson holding is to be ex- panded -or contracted -the appropriate rem- The St. Louis Cardinals’ decision to trade their edy lies with Congress.”“ star outfielder Curt Flood (pictured) to the Phila- The defendants in International Boxing delphia Phillies was considered a tragedy by some, but did not raise a legal issue that would Club thought they had an even better case. For normally warrant Supreme Court review. None- if the Court were drawing lines between dif- theless, the Court agreed in 1972 to review ferent types of ‘‘live’’ exhibitions, surely it baseball’s antitrust exemption, thus affording some Justices the opportunity to change their would agree that an athletic exhibition like box- positions on the question. ing would be grouped with baseball rather than with a vaudeville act. Once again, however, pression on the lower courts. Instead, they re- those litigants and the lower courts that agreed acted to the news that Federal Baseball would with them failed to recognize that Toolson had not be disturbed by dismissing challenges to tried to convert the reasoning of Federal Base- all forms of exhibitions for entertainment that ball into an express exemption rather than an they found indistinguishable in principle from application of a general interstate commerce Federal Baseball. Thus, the very next Term, test. “Surely there is nothing in the Holmes the Court faced two such cases, one involving opinion in the [vaudeville] case,” responded theatrical presentations booked in multi-state Chief Justice Warren in International Box- theaters (Shubert),86the other involving pro- ing, “to suggest, even remotely, that the Court fessional boxing (International Boxing was drawing a line between athletic and non- Both opinions were written by Chief athletic entertainment.’lg2Indeed, there was not Justice Warren, whose apparent mission was - which is precisely why the theater defen- to emphasize that, “[iln Federal dants in Shubert were so vexed about losing. Baseball, . . . Justice Holmes was dealing with But what conclusion does that lead to? For the the business of baseball and nothing else.” Chief Justice, it meant that the line had to be He explained, moreover, that Toolson was drawn even more arbitrarily, that is, between based on “a unique combination of circum- baseball and all live exhibitions that were not stances,” and was thus “a narrow application ba~eball.9~This is an argument that works only of the rule of stare decisis.”88 if one takes seriously the last sentence of In Shubert, moreover, the Court had as pre- Toolson, attributing the baseball exemption to 104 JOURNAL 1998, VOL. 2 congressional intent. exempt from the Sherman Act all “team sports,” But not even everyone who voted for the which would include f~otball.~’ per curium opinion in Toolson believed that. At this point, the Supreme Court appar- Two of those Justices, Minton and Frankfurter, ently perceived a need to speak more plainly. dissented in the boxing case. Justice Minton The opinion of Justice Clark in Radovich v. relied on the alternative argument in Federal National Football League, therefore, an- Baseball in its purest form: “‘Personal effort, nounced that henceforth the rule of Federal not related to production, is not a subject of Baseball and Toolson would be confined “to commerce,”’ whether interstate or In the facts there involved, i.e., the business of Toolson, he mistakenly thought, the Court had organized baseball.” Justice Clark allowed “reaffirmed the holding” of Federal Base- that the baseball exemption might be con- ball.95Because no one was arguing that box- sidered “unrealistic, inconsistent, [and] ing matches were more like trade or com- illogical,. . . [and] were we considering the merce than baseball games, he reasoned that question of baseball for the first time upon a the result had to be the same. Justice Frank- clean slate we would have no The furter, on the other hand, dissented because Radovich Court was willing to live with that the holding in International Boxing made the mistake, but nothing more. Ultimately, the dis- Court’s “narrow” application of stare decisis tinction between baseball and other businesses in Toolson too, well, narrow: for which the lower courts had been searching came down to this and only this: “Federal Baseball held the business of baseball outside I cannot translate even the narrowest the scope of the Act. No other business claim- conception of stare decisis into the ing the coverage of those cases has such an equivalent of writing into the Sherman adjudi~ation.”’~ Law an exemption of baseball to the With Radovich, the “bait and switch” was exclusion of every other sport differ- complete. Those courts and defendants lured ent not one legal jot or tittle from it.”6 by Toolson to apply Federal Baseball to a va- riety of indistinguishable businesses had been In other words, the application of stare deci- slapped down in every instance. Far from find- sis should be based on a principle, even a nar- ing a rationale that would change the result in row one, but not on the name of the game you Federal Baseball in the 1950s while preserv- play. These dissents demonstrate that not even ing Holmes’ reasoning, the Court had issued a those in the per curium majority realized that series of rulings that seemed to make the re- the final sentence of Toolson could possibly sult judicially untouchable while publicly ex- be taken to mean what it said. posing Holmes’ reasoning to even greater ridi- And the lower courts still did not get it. cule. When an antitrust suit was brought against In retrospect, it is not hard to divine the the National Football League shortly thereaf- plan that at least some of the Justices had in ter, the Ninth Circuit was sincerely perplexed. mind at the time of Toolson. No one could dis- The court compared the results in Federal Base- pute that refusing to apply the antitrust laws to ball and International Boxing, groping for a professional sports in the age of radio and tele- principled distinction. Unable to use the level vision was, as Professor White puts it, “ab- of interstate activity or the general category surd.’’1ooApparently recognizing that absurdity, of sports as the basis, the lightning bolt finally moreover, Congress had held extensive hear- struck: baseball is a team sport, while boxing is ings and considered numerous bills in the an individual sport. Thus, the Ninth Circuit 1950s that would deal with the problem. At held that Federal Baseball and Toolson must one such hearing, Congress heard testimony STEALING HOLMES 105 from Casey Stengel, Ted Williams, Stan Musial, But Flood did provide the opportunity for some and Mickey Mantle. After Stengel offered a members of the Court to change their positions rambling, pages-long answer consisting of diz- on the question -which itself may be the best zying double-talk, the room dissolved in laugh- explanation for the grant of certiorari. ter when Mantle began by saying: “My views Justice Blackmun’s opinion is memorable are just about the same as Casey’s.”Io’With for the opening section, subtitled “The Game,” Congress on the verge of acting, the Toolson wherein he describes the early history of base- Court must have found the following solution ball in the voice of a bedazzled schoolboy: “[tlhe irresistible: instead of overruling Holmes and ensuing colorful days are well At seeming to betray the baseball powers that be, one point, he notes that there are “many names why not find a way to limit the exemption to [of old-time players] . . . that have provided tin- baseball alone, so that no other sport or busi- der for recaptured thlls” and he proceeds to ness could claim it, and then let Congress re- list eighty-eight of them. At the end of the list, move the exemption for baseball? Then Fed- he writes, without apparent irony: “The list eral Baseball would be neither overruled nor seems endless.”’o6Only two other Justices in problematical; it would be moot. the majority joined Part I of the opinion. Two things went wrong. First, Congress The lengthiest portion of Justice is Congress, and nothing happened. Second, Blackmun’s opinion was his description of “The when your solution is based on the absolute Legal Background.” This contained lettered fabrication of an express exemption for base- paragraphs A through I, describing in detail ball, the chance of a result that seems intel- the leading Supreme Court cases, the legal com- lectually defensible depends inversely on how mentary on them, and the numerous congres- often and how publicly you have to explain sional investigationsof baseball. It was followed yourself. Which brings us to the third and fi- by a brief, concluding section applying this nal time professional baseball was brought background to the case at hand. The decision before the Court on this issue, in Flood v. to reaffirm the rule of Federal Baseball and Kuhn .Io2 Toolson was based on three principal points: (1) Congress has had the baseball “ex- C. Strike Three emption” under consideration many times. It Perhaps the clearest indication that no one, has had the opportunity to overrule Holmes including the Supreme Court, found the state legislatively, but has not done so. Thus, by its of the law after Radovich remotely satisfying “positive inaction,” Congress “has clearly is the decision to grant certiorari fourteen years evinced a desire not to disapprove [Federal later in Flood v. Kuhn.Io3Because, technically, Baseball and Toolson] legislatively.” there was nothing “cert-worthy” about the case. (2) “[Slince 1922, baseball.. . has been The question presented had been before the allowed to develop and to expand unhindered Court twice (and arguably five times) and there by federal legislative action.” The Court has was no split in the Circuits to be resolved. And thus been concerned “about the confusion and while the St. Louis Cardinals’ decision to trade the retroactivity problems that inevitably star outfielder Curt Flood to the Philadelphia would result with a judicial overturning of Phillies was no doubt important -even tragic Federal Baseball.” This is yet another reason - to some, it was not a matter affecting na- to prefer a legislative solution, which, “by its tional security or world peace. Indeed, all Jus- nature, is only prospective in ~peration.”’~’ tice Blackmun could say in describing the de- (3) Although the rule of Federal Base- cision to hear the case was that the Court ball is “an anomaly” and “an aberration,” it is “granted certiorari in order to look once again “an established one . . . that has been with US at this troublesome and unusual situation.”lo4 now for half a century.” To reject it now, more- 106 JOURNAL 1998, VOL. 2 over, would require “withdrawing from the con- currence, even though he expressly agreed with clusion as to congressional intent made in Justice Douglas’s dissent on two points: that Toolson.” The question was no longer whether Toolson was probably in error, and that the Federal Baseball was right or wrong, but who Court’s reliance on “congressional inaction is should overrule it: “If there is any inconsis- not a solid base” for refusing to correct a mis- tency or illogic in all this, it is an inconsistency take. Nonetheless, he joined the majority’s opin- and illogic of long standing that is to be rem- ion and result, but left these marching orders edied by the Congress and not by this for the House and Senate members across the Justice Blackmun concluded his opinion street: by adopting and quoting in full the last sen- tence of Toolson, and then adding these final [Tlhe least undesirable course now is words: to let the matter rest with Congress; it is time the Congress acted to solve And what the Court said in Federal the problem.”’ Baseball in 1922 and what it said in Toolson in 1953, we say again here in Since Flood, there has been no serious 1972; the remedy, if any is indicated, attempt to have the Court consider the ques- is for congressional, and not judicial, tion for a fourth time. The various opinions in action. ‘09 Flood demonstrate, however, that the question for the Court by 1972 was no longer what Fed- Justice Douglas’s dissent was simply an eral Baseball actually meant, but how the mis- updated version of Judge Frank’s opinion in take that had been made should be corrected. Gardella. The principal difference was that his The “least undesirable” solution decreed was first sentence converted Federal Baseball congressional action. Yet, despite the virtual from a “zombie” to “a derelict in the stream injunction from Chief Justice Burger in his of the law.” Otherwise, he echoed Judge Frank Flood concurrence, Congress has failed to re- by pointing out that Holmes’ “narrow, paro- move the exemption for more than twenty-five chial view of commerce” had been repudiated years. by “the modem decisions” ofthe Court.l’”The So who is ultimately responsible for this interesting question was how Douglas would “troublesome and unusual situation”? There is handle his previous vote for the opinion in no doubt where the Radovich Court laid the Toolson. His answer came in a disarming foot- blame: “But Federal Baseball held the busi- note: ness of baseball outside the scope of the Act. No other business. . . has such an adjudica- While I joined the Court’s opinion in tion.”Il3 Nor is there doubt about Justice Toolson . . , I have lived to regret it; Blackmun’s view: “It is an aberration that has and I would now correct what I be- been with us now for half a century.”Il4Nor is lieve to be its fundamental error.111 Justice Douglas hard to read: “In 1922 the Court had a narrow, parochial view of commerce,” he Justice Brennan joined Douglas in this dissent, wrote, while citing the “regret[hl]” decision in even though Brennan had dissented in Toolson only once, in a f~otnote.“~For these Radovich on the ground that the rule of Justices, the problem, in all its aberrant glory, Toolson should apply not only to baseball but begins and ends with Holmes. to football as well. In his case, however, no To determine whether this historical judg- explanation or expression of regret was pro- ment is correct, it is time to return to our origi- vided in Flood. nal question: could the antitrust laws have been Chief Justice Burger offered a brief con- applied to baseball in 1949 or thereafter with- STEALING HOLMES 107 out overruling Federal Baseball? By tracing the ity of the Supreme Court of the United States exemption all the way through to the decision to grasp the practical meaning” of organized in Flood, we have now accumulated the evi- baseball’s structure. In contrast, he argues, dence necessary to answer that question. For “[tlhose closest to baseball, and most directly the answer lies in understanding Federal Base- affected by its decisions, knew full well that it ball the way Holmes understood it, and that is was a business, and a buyer’s monopoly at something that no judge who has discussed the that .’’I issue has managed to do - no judge, that is, Among the statements for which Holmes except one. is revered, rather than ridiculed, is this: “It is most idle to take a man apart from the circum- V. Wrong on the Facts stances which, in fact, were his.”“* We will therefore attempt to place Holmes and Fed- One thing that the progression from eral Baseball in context as a means of address- Toolson to Flood makes plain is that Holmes’ ing this critique. opinion has been battered and mocked much more for the alternative argument about “trade or commerce” than for the conclusion that the A. Primitive Baseball interstate aspects of the business were merely In evaluating the place of professional “incidental” to the game. This is because such baseball in the American culture when Federal a conclusion, even if wrong when made, is at Baseball was decided, two points should be least not immutable; it can change when the considered. The first, and less important, is that facts do. The presence of radio and television the game at that time was still quite primitive in the later cases, therefore, made it largely in many respects in comparison even to 1949. unnecessary to dwell on the first argument. When we hear the stories of the (now) famous But Holmes has not gone unscathed on players from that era, we tend to envision them that point by any means. Some have argued that playing in stadiums and circumstances essen- Holmes was not only “sophistic” in his view tially as they exist now - the uniforms are a of trade or commerce, but “remarkably myo- little baggier, perhaps, and we see things in black pic, almost willfully ignorant of the nature of’ and white, rather than in color, but that’s about professional baseball.”6 As Professor White it. Yet there were fundamental differences af- asks rhetorically in his book, Creating the fecting everything from the rules (the spitball National Pastime, “How could anyone fairly was not banned until 1921), to the equipment characterize baseball games as ‘purely state’ (today, World Series announcers point out that or ‘local’ affairs?” There is the sense that the American and National Leagues have dif- Holmes has let us down by failing to perceive ferent strike zones; in the teens, they used dif- the cultural importance that baseball had, or ferent baseball^"^). Indeed, some of the most clearly would have, in America. In attempting basic trappings of the baseball “experience” to explain this myopia, Professor White finds were simply not yet born. in the decision of the D.C. Circuit in Federal Take the high-collared uniforms, for ex- Baseball “the persistent belief that baseball ample. Not only did they lack the player’s was not just a ‘business,’ but a ‘game.”’ names, they did not even have numbers. Nor were the starting lineups announced, because It was easy to think of buying a prod- there were no sound systems. (John McGraw’s uct as part of one’s “business.” It was remarks at his twenty-fifth anniversary cel- much harder to think of watching a ebration on July 19, 1927, were not amplified, baseball game in the same manner. because the Polo Grounds did not have a Professor White finds “astonishing [the] inabil- speaker system until 1930.lZ0) Accordingly, you 108 JOURNAL 1998, VOL. 2 could not tell the players even with a scorecard. sal. When the Federal League was wooing As for music, playing the Star-Spangled Ban- Walter Johnson, he was a 36-game winner. ner was not traditional, but a recent innovation Smokey Joe Wood was 34-5 in 19 12, for a win- by one team, the Boston Red Sox, introduced ning percentage of .872.lZ9The lowest earned in 1918 by its show-producer owner, Harry run average in history was recorded in 1914 Frazee. The famous tune, “Oh, Take Me Out by Dutch Leonard (1.01). To underscore the to The Ball Game,” had been written in 1908, dominance of pitching in the teens, compare but the composer had never even seen a ball the 1915 rookie season statistics of Boston’s game.‘*’ Babe Ruth with those of the Dodgers’ Or take something as fundamental as the Fernando Valenzuela in 198 1. Valenzuela’s name of the team. In that era, the team name record was 13-7, with a 2.48 earned run aver- was as variable as the whim of a local sports- age. The Babe was better on both counts (1 8- writer. At the beginning of the teens, the Red 6 and 2.44), and batted .315 for good mea- Sox were called the Pilgrims.lz2When four of sure. The result: Valenzuela won the Cy Young the Dodgers got married in the same year the Award and was named Rookie of the Year, while team became the “Bridegrooms.” The Indians Ruth was not even carried on Boston’s 19 15 were known for several years as the Cleveland World Series roster. Given the dominance of “Naps” in honor of their player manager, Napo- the pitchers, it is no surprise that the longest leon Laj~ie.’~~When the Indians won the 1920 game in baseball history was played on May 1, World Series, they defeated the Brooklyn “Rob- 1920, - a less than riveting, 26-inning, 1-1 ins,” then named for their own manager, Wilbert draw that was called on account of Robinson. (Brooklyn’s all-time low on the name Boring or not, there is no question that parade came in 19 15 when the team was called professional baseball was poorly positioned the “Tip-T~ps.”’~~Honestly.) to withstand the distraction and financial hard- Of greater importance than the primitive ships inflicted by World War I. In 1918, the trappings, however, is the second point: the owners agreed in July to shorten the season; health of professional baseball in 19 19 was not the World Series was completed by September good. The teens had been baseball’s most lack- 1 1,l3’and the owners promptly cut all players luster decade. Attendance had been dropping from their rosters to save on the balance of since the close pennant races of 1908 and 1909. salaries due (agreeing, of course, not to sign By 1915, one of baseball’s early publications, each others’ free agents). In 1919, the owners the Reach Guide, was speculating about the agreed again to shorten the season, delay reasons for professional baseball’s general spring training, and trim each team’s roster to malaise and the fans’ waning interest. Among 2 1 players in order to save more money. 132 At- the possible reasons given were “excessive tendance nosed up slightly in 19 19, but the im- player salaries” and “movies.”12s provement was grudging and short-lived. One of the reasons not given was that the At that point, as the Federal Baseball ap- game may have been getting a little boring. peal worked its way through the appeals court Baseball historian Bill James notes that the in 1920 and the Supreme Court in 1921, profes- pitchers gained “control” beginning around sional baseball was traumatized by two addi- I 913.Iz6The team batting averages for the de- tional events: The Black Sox scandal and the cade hovered around .250 and the most home death of Ray Chapman. runs hit in a year from 1909 to 1918 were t~e1ve.l~’In fact, When Boston pitcher Babe Ruth hit 29 home runs in 1919, he broke the 1. The Black Sox Scandal American League record by thirteen.’28The pitchers’ statistics were correspondingly colos- In 19 19, players on the Chicago White Sox 109 threw the World Series. The story of the scan- played all-star baseball for the entire Series.138 dal has been chronicled most notably in Eliot That was enough to warrant expulsion in the Asinof’s famous “Eight Men Out.”’33The mas- view of Commissioner Landis, however, who termind was a New York gambler named correctly perceived the danger that this scan- Arnold Rothstein. Eight White Sox players, dal presented for baseball. From his position who included Shoeless Joe Jackson, pitcher as owner, Comiskey decided that the best man- Eddie Cicotte, and third baseman Buck agement of the problem would be for the play- Weaver, were subsequently indicted and tried, ers to be banned, but acquitted of the criminal but all were acquitted. In the meantime, how- charges.139During the trial, therefore, ever, former federal judge Kenesaw Mountain Jackson’s written confession disappeared. A Landis was appointed baseball’s first Commis- few years later, when Jackson brought a civil sioner, and he banned all eight of the indicted suit against the White Sox, the confession players from organized baseball for life.’34 conveniently resurfaced - in Comiskey’s The story from the players’ perspective lawyer’s briefcase. was more pathetic than villainous. They were The timing of the scandal could not have manipulated by the gamblers during the scan- been worse, as baseball struggled to right itself dal and manipulated by White Sox owner after the war. This conduct rubbed the public’s Charles Comiskey afterward. Only two of the nose in organized baseball’s worst-kept secret: players actually received any of the promised that it was badly corrupted by gambling. Gam- bribe money- Jackson and Ci~otte.’~~Cicotte blers had been present since the first league was thirty-five in 19 19, but arguably the best had been established in the 1870s, and a major left-handed pitcher in baseball. He had none- scandal involving the Louisville Club had been theless suffered the penury of his owner for exposed in 1876. Since then gambling had been years. In addition to paying him half of what unmentioned, but largely tolerated. In 19 17 and other pitchers made, Comiskey had him pulled 1918, for example, first baseman Hal Chase from the starting rotation two years earlier af- had repeatedly been caught soliciting others ter winning twenty-nine games, ostensibly to to throw games, but repeatedly let off.i4o “rest” him for the World Series. In fact, how- Asinoff notes that “[bly 1919, gamblers openly ever, Cicotte had an incentive clause that would boasted that they could control ball games as have paid him $10,000 for winning thirty readily as they controlled horse races.”i41Pub- games.’36By 1919, Cicotte knew he was too licity such as the Black Sox scandal tends to old to recoup the money he had lost in salary. injure an enterprise seeking to become the When Comiskey cut salaries in connection cultural cornerstone of American life. with the war-shortened season, Cicotte and And consider the timing in connection several other players agreed to the scam.I3’ with Federal Baseball. The rumors that the In recent years, there have been revision- World Series had been thrown persisted ist attempts to clear Shoeless Joe Jackson of through the 1920 season, casting a cloud over the charges. One such attempt is found in the a close pennant race between the White Sox, movie, “Field of Dreams,” in which the ghost of Indians, and Yankees. The indictments came the deeply Southern and deeply uneducated down dramatically in September of 1920,just as Shoeless Joe is played with perfect diction by the D.C. Circuit was preparing its opinion in New Yorker, Ray Liotta. All of these efforts Federal Baseball, which was issued in De- are complicated by Joe’s written confession cember. During the 1921 season, the last full at the time. Buck Weaver, on the other hand, season before the Supreme Court ruled in Fed- protested his innocence for decades, and the eral Baseball, baseball news was overshadowed evidence supports his claim that he only lis- as the Black Sox trial dragged on in June, July, tened to the plan without assent and thereafter and August.I4*Thus, even if the members of 110 JOURNAL 1998, VOL. 2

Ted Williams and Babe Ruth (left to right), two of baseball's greatest hitters, met for the first time in 1943 at Fenway Park. Many of baseball's most colorful and be- loved characters, including Casey Stengel (opposite page, upper right) and Mickey Mantle (opposite page, lower right, run- ning home), were called to testify before Congress on the antitrust exemption. the unanimous Supreme Court in Federal Base- the left ear, and Cleveland's rising star was dead ball were paying attention to baseball at this several hours later. time, they would doubtlessly have shared the The death of a young ballplayer would be assessment of this period advanced by Stephen devastating under any circumstances, but the Jay Gould: circumstances in this case -including the per- sonalities of the two protagonists - height- The game had been in trouble for sev- ened the tragedy. In 1920, Ray Chapman was a eral years already. Attendance was in golden boy, well on his way to owning the town decline and rumors of fixing had of Cleveland. Young and classically good look- caused injury before. The Black Sox ing, he was reputed to be the fastest man in Scandal seemed destined to ruin baseball. He was also an outstanding fielder baseball as a professional sport en- who had been made the protege of Cleveland's tirely.143 already legendary player-manager, Tris Speaker. By all reports Ray was unerringly affable and charming. As the 1920 season got underway, 2. The Pitch That Killed'44 moreover, he had just married the beautiful Only one major leaguer in the history of daughter of one of Cleveland's richest men. baseball has been killed by a pitch. His name The man who threw the pitch, Carl Mays, was Ray Chapman, and he played shortstop for was a different story. Mays had come to Bos- the Cleveland Indians. On August 16, 1920, ton as a pitcher along with Babe Ruth in 1914 Cleveland played in New York during a crucial (they rode the same train together from Balti- series in a tight pennant race. TheYankees'best more).'45By 1919, Mays had established him- pitcher, Carl Mays, beaned Chapman behind self as one of the premier right-handed pitch- STEALING HOLMES 11 1 ers in the American League. He had an under- handed delivery, snapping the ball from near his shoe tops at the release. Unlike Chapman, however, Mays was not considered charming. Although he apparently did not drink, smoke, or curse, he was such an unrelenting jerk that he was thoroughly disliked, even by his own team. His universal lack of popularity was so obvious that Mays would discuss it in inter- views. Nor did Mays’ conduct make his reputa- tion a mystery. When Mays decided in mid- 19 19 that the floundering Red Sox were not pro- viding enough run support, he walked out on his team and his contract. Despite the suppos- edly impregnable reserve clause, the ambitious owners of the Yankees quickly offered him an- other contract, which touched off a dispute so bitter that some owners threatened to dissolve the league. After several lawsuits, countersuits, year by Babe Ruth. and injunctions, the matter was finally settled Another reason Mays was unpopular was on the eve of the 1920 season. As a result, Mays that he beaned people. Despite his outstand- stayed in NewYork, where he was rejoined that ing record, he was virtually always at the top 112 JOURNAL 1998, VOL. 2 of the list for hit batsmen.146When Chapman baseball’s historical summit. Postwar America died, the Yankees’ owner noted that ‘‘‘[iltis un- felt good about itself and even better about fortunate that it should have been Mays who baseball. The age of DiMaggio, Williams, and pitched the ball, too, because of the tremen- Musial was in full flower. The American dous publicity he has already had.”I4’ As for League race in 1948 had been riveting, as Lou the pitch that hit Ray Chapman, the case Boudreau and Cleveland’s incomparable pitch- against Mays is necessarily circumstantial, but ing narrowly edged the storiedyankees and the impressive. First, he was a low-ball pitcher, ever-tragic Red Sox. Those three teams alone who seemed to go high only when someone’s drew more fans in 1948 than had the entire head was in the way. Second, he was fiercely, American League in 1920.153The following and justly, proud of his control (continually “Summer of ’49”154would become the stuff making the point to interviewers). Third, he of baseball legend, with the Yankees taking the was usually among the league leaders in few- pennant from the Red Sox on the final day of est In fact, he still holds the record the season. That summer produced perhaps the for pitching the most innings (26) in a World finest moment for baseball’s finest symbol, Series without allowing a walk. As if to en- Joe DiMaggio. Due to a second, career-threat- sure his place in history, Mays offered this as- ening foot operation, he played for the first sessment of what happened: “It was the time that season in late June, in a crucial se- umpire’s fault.”149 ries against the Red Sox in Boston. Leading Chapman’s death, followed one month the Yankees to a three-game sweep, Joe bat- later by the Black Sox indictments, provided ted .455 (5 of Il), with four home runs and grisly confirmation of the worst image of pro- nine RBIs. As he rounded third on one fessional baseball and its participants. Re- homerun, Casey Stengel came out of the dug- garded as lower class ruffians, the players of out and bowed in the “we are not worthy” sa- the teens have been described by one of the lute.155America agreed. That Yankees team preeminent baseball historians in crisp terms: commenced a run of five consecutive world “Shysters, con men, carpet baggers, drunks and championships that may never be duplicated. outright thieves.”150Today, individual names do To take the pennant back in 1954, the Indians provide “tinder for recaptured thrills,” in the had to win a record 11 1 games; the Yankees words of Justice Blackmun, but the image of won a mere 103.156 the entire enterprise as shabby and probably By 1949, baseball had not only a new gen- corrupt would die hard, especially for the older eration ofplayers, but a new generation of fans. generation. When Yogi Berra took up the game That generation, moreover, followed the game decades later, his parents were ashamed.I5l in a fundamentally different way than its pre- Despite the exciting pennant race of 1920 decessors -by listening to the radio. It is dif- (Cleveland replaced Chapman with a minor ficult to overestimate the role of broadcast- league shortstop named Joe Sewell, who is ing in the rise of baseball (as well as other sports) in the American cultural conscious- now in the Hall of Fame, and came back to win ness. In David Halberstam’s words, “Radio the pennant and the World Series), attendance made the games and the players seem vastly dropped significantly in 1921 .Is2 Professional more important, mythic even.” Radio cover- baseball was at its nadir. age began to define the game in the 1940s, but was still not universal. In 1946, New York B. Postwar Bliss-and Broadcasting sportscasters made their coverage comprehen- sive, providing the first live broadcasts of away But turn now to February of 1949, when For baseball and radio, all the stars Gardella was decided, and we approach were in alignment: STEALING HOLMES 113

[Rladio as a prime instrument of stand that it is not the same for American audi- sports communication, and Me1 Allen ences to see a swing and a miss without hear- as one of its foremost practitioners, ing “swing and a miss.” Strictly speaking, ascended at the very moment that Joe broadcasting may not be part of the game, but DiMaggio did.158 it is a principal reason why the game is part of us. Holmes and his Brethren did not have this By the end of the decade, television was perspective. As for broadcasting, although the not far behind. The first World Series games first experimental transmission fom a ballpark were televised in only five cities in 1947, occurred in August of 1921, the “incalculably when Gillette paid $175,000 for the rights. positive” impact of regular radio broadcasts162 Fans did not have to own a T.V. to see the was still more than a decade away. Most teams games; city taverns bought them and aggres- did not broadcast even home games until the sively promoted televised sports as part of early 1930s, and “[als late as 1939 none of the their postwar strategy to resist the advent of New York clubs broadcast any of their (1) suburbia and (2) canned beer. By 1949, games.”163As for iconography, far from boast- comedian Fred Allen asserted that the only ing an all-American hero like Joe DiMaggio, New Yorkers who had not watched television the era of Federal Baseball was symbolized by were children too young to frequent sa10ons.I~~ the peerless and ruthless Tyrus R. Cobb. While For the 1949 Series, Gillette paid $800,000 he truly did dominate (in 19 19, he won the bat- for the television rights, and an estimated ten ting title for the eleventh time in twelve years), million watched.I6O his penchant for fighting, cheating, and beat- In deciding whether Holmes failed to grasp ing up fans (he once kicked a hotel chamber- the true (or at least imminent) nature of profes- maid down a flight of stairs) left him generally sional baseball, we must keep in mind that despised.’@At the end of one season, when broadcasting is not just the obvious reason Cobb was locked in a tight race for the batting that professional baseball games are today “in- crown with Napoleon LaJoie, an opposing man- terstate.” It is the reason that we now perceive ager pulled his infield back so that LaJoie could baseball and other professional sports as a ubiq- “beat out” six bunts for infield hits. Cobb, be- uitous, permeating cultural feature of everyday ing Cobb, won the title anyway.165 life. Only with broadcasting can there be a col- For the Justices who decided Federal lective American experience -from sea to shin- Baseball, therefore, the game of baseball had ing sea -based on a single moment of a single a secure place in the culture as a means of lo- game. Because of broadcasting, Bobby cal recreation - there were hundreds of ama- Thompson’s home run to win the pennant for teur leagues, virtually all contained within their the Giants in 1951 truly was a “Shot Heard home state166- but the enterprise known as ‘Round The World”161- or at least around organized baseball was more than arguably America. By the late 1940s, therefore, we can corrupt, declining, and possibly near extinc- say that major league baseball had genuinely tion. Their mental image of baseball, if they become an experience that was not only seen had one, was likely to be the game in which Ty but heard. It is no accident that every movie Cobb, dusted off by a Carl Mays pitch aimed made about baseball, from 1949’s “It Happens at his head, retaliated by pushing a bunt toward Every Spring” to the dopey (but fun) “Major first base and then spiking the covering Mays League,” shows scenes of live baseball action so badly that he could not walk.’67The Justices from the perspective of the play-by-play an- may have been grateful that such a spectacle nouncer in the booth. The filmmakers under- had been witnessed only by a local audience. 114 JOURNAL 1998, VOL. 2

C. The ”Business“ of Baseball must be arranged between clubs from differ- ent cities and States,”170thereby granting the Those who are disappointed or embar- plaintiff its point that the quality of the games rassed by Holmes’ conclusion that the inter- was directly affected by the out-of-state “iden- state aspects of organized baseball at the time tity” of the opponent. of Federal Baseball were “incidental” do not But the fact remains that, when the game grasp the simplicity of the analysis of both with the out-of-state rival was actually played Holmes and the D.C. Circuit Court of Appeals. (i.e.,produced and consumed), business was “Trade” and “commerce” were terms of art at being transacted on an interstate basis in only that time. To determine whether the defendant the most indirect and subtle way. When the baseball clubs were engaged in interstate trade Dodgers played the Redlegs in Cincinnati, for or commerce, the first step for the Court of example, the fans in Brooklyn could care Appeals was to determine just what it was that deeply, but they could not partake. The most the defendants were selling. This is what con- they could do was to read of the results after temporary antitrust lawyers would call defin- the fact in newspaper or telegraph reports. To ing the product market. The answer for both participate in any meaningful way in the “es- courts was this: they were selling baseball sential” part of the business (the game), you games, or as Holmes put it “giving exhibitions had to be in Ohio. The only interstate aspect of base If the next question is whether of the “exhibition” itself was the implicit ef- the game, from the first pitch to the last out, fect it would have on the importance of the was an interstate event or an intrastate event, games played in other states. In other words, it is hard to argue against the view that the game what happened in Ohio in May could make the was “local in its beginning and in its end.”’69 game played in New York in September vastly The game -the relevant product - was pro- more important and exciting. (As current fans duced and consumed in its entirety in one are painfully aware, this is a point that seems place, at one time, in one state. entirely lost on players today.) But, at least If we recognize how firmly this analysis until broadcasting was widely available, the focused on the actual experience of the fan “con- September game in New York would still be a suming” the exhibition as it was exhibited, we “local” exhibition, consumed only by those will understand why so many have wrongly who were there. If one accepts any analysis suggested that Holmes’ opinion ignored the that attempts to distinguish between the inci- nature of this “business.” For the Federal Base- dental and the essential, the amount of genu- ball opinion described the business in precisely ine interstate commercial exchange that took the terms Holmes is claimed to have been un- place in a baseball park in Holmes’ day must able to grasp. He referred to organized baseball be below the line. as a “business” on five separate occasions in Accordingly, if your task in the spring of two and one-half pages. He noted that “the 1919 (as, say, trial counsel for the plaintiff in scheme requires constant traveling on the part Federal Baseball) was to produce evidence of the clubs, which is provided for, controlled that the interstate aspects of producing this lo- and disciplined by the [leagues].” He further cal exhibition were more than incidental, you noted that the traveling was interstate: “[Tlhese were in trouble. In the 1970s Justice Douglas clubs . . . play against one another in public ex- would point out in Flood v. Kuhn that hibitions for money, one or another club cross- “[blaseball is today big business that is pack- ing a state line in order to make the meeting aged with beer, broadcasting and with other possible.” Indeed, he even acknowledged that ind~stries.”’~’But we know that broadcasting “to attain for these exhibitions the great popu- was not part of the business when Federal larity that they have achieved, competitions Baseball was decided, and beer was illegal STEALING HOLMES 115

(ouch). (The Eighteenth Amendment was rati- subject to any statutory imposition Congress fied on January 29, 1919, and the Volstead Act cares to impose.’75But the “house-that-jack- was held constitutional in January 1920.) Could built” reasoning underlying that view, while you make it seem important to a court that the perhaps inevitable today with the revolution in balls, bats, and uniforms of the visiting team communication technology, has no more claim may have crossed a state line? (Not really.) If to intellectual rigor than the incidental effects the visiting team’s equipment had been hi- analysis, which at least was designed to pre- jacked, would the game have been canceled? serve some distinction between interstate and (Doubtful .) local businesses. Thus, when Professor White The lawyers for the Federal Baseball finally asks in frustration how “anyone [could] plaintiffs seem to have understood the chal- conclude, whatever the legal nomenclature, that lenge before them. In their brief to the Supreme major league baseball teams were not engaged Court, therefore, they strenuously argued that in interstate ~ommerce,”’~~we see that he has the interstate aspects of baseball were not sim- lost sight of the controlling issue. It was not ply important, but the heart of the enterprise. whether baseball was a business, or was a There was even a spiritual aspect: “The per- monopsony (a “buyers’ monopoly”), but sonality, so to speak, of each club in a league is whether that business should be characterized actually projected over state lines and becomes as intrastate rather than interstate. The plain- mingled with that of clubs in all the other tiff in Federal Baseball knew that that was the state^.""^ The main activity of each club, ac- issue, and argued it under the prevailing stan- cording to the plaintiff, was not playing ball, dard. There was no request that the Court adopt but traveling. Thus, although the plaintiff a different analysis, much less overrule bind- grudgingly admitted that each club had “a lo- ing Supreme Court precedent. cal legal habitat. . . it [was] primarily an ambu- This is now, but that was then. Holmes latory ~rganization.”‘~~My favorite exposition was analyzing a record made in 19 19 about the of this theme is as follows: nature of the business in 19 14 and 19 15. The broadcasting, front offices, and minor league [Tlhroughout the playing season the structures of today did not exist. The issue in ball teams, their attendants and para- Federal Baseball, everyone agreed, was phernalia, are in constant revolution whether this “popular” business was interstate around a pre-established circuit. or local. Everyone also agreed that the ques- Their movement is only interrupted tion turned on the difference between inciden- tal and non-incidental effects. That was pre- to the extent of permitting exhibi- tions of baseball to be given in the cisely the way in which Learned Hand, with the various cities.’74 benefit of twenty-seven years of additional antitrust law, would frame the issue in 1949. In 1922, the answer was clear. Drat those interruptions. Holmes and his Brethren were unlikely to be moved by an ar- VI. Wrong on the Law gument that made the game itself “incidental.” A. Whose Alternative Argument? I suspect that what bothers most modem readers of Federal Baseball is Holmes’ failure If Courts had construed the incidental ef- to reject the incidental effects analysis alto- fects analysis of Federal Baseball as the sole gether, overrule Hooper v. California sua ground of decision, both the opinion and its sponte, and declare (as the current Court might) holding would long ago have faded away. that any interstate aspect of any business, no Whether Holmes was right or wrong is imma- matter how incidental, renders that business terial, the next court would have said, for the 116 JOURNAL 1998, VOL. 2 facts have changed, and under Federal Base- result in Hart, coming only one year after ball that means the result must change as well. Federal Baseball. One is that the result turns Let us turn, then, to the alternative argument purely on the difference between the con- on “trade or commerce,’’which has shown such cepts of “jurisdiction” and “cause of action.” a sheer face to those who would attempt to Jurisdiction considers only whether the court help Holmes climb from the reputational hole has power to act on the controversy; cause dug by his baseball opinion. Very few have even of action considers whether the plaintiff has argued that finding baseball subject to the an- a right to actual relief on the stated ~1aim.l’~ titrust laws today could be made consistent Recall that Federal Baseball came to the with Federal Baseball. Justice Burton tried Court after a full trial and verdict. In Hart, in his dissent in Toolson, but ultimately had to however, as in most all of the cases we have (1) mischaracterize Holmes’ opinion and (2) discussed, the Court dismissed the complaint still cite the cases said to “repudiate” Holmes’ ab initio on the ground that the antitrust laws view of interstate commerce. The only other confer no jurisdiction over baseball. Was person to make the effort, the great Learned Holmes saying in Hart that the plaintiff had Hand, seemed to leave his bat on his shoulder, a right to claim that the antitrust laws gov- simply blinking as the hard issue went by. erned the dispute, even though the claim The beginning of wisdom here comes in would later have to be dismissed under Fed- considering the other Holmes decision men- eral Baseball as a matter of law? Or was he tioned above in the discussion of US. v. leaving open the possibility that the plain- Shubert. The case was called Hart v. B.F tiff in Hart could somehow prevail on the Keith Vaudeville Exchange. It involved an in- merits? The first option seems overly for- terstate vaudeville circuit and was decided in malistic, especially for Holmes. The second 1923, in the next Term after Federal Base- seems flatly inconsistent with the alterna- ball. On the facts, there was no obvious dis- tive argument in Federal Baseball. tinction from Federal Baseball, just a dispute For Holmes, the distinction between ju- over whether the “transportation of large quan- risdiction and cause of action was real, but not tities of scenery, costumes and animals” was mindlessly formal. He had made the point ten “merely incidental” to the performance. The years earlier in The Fair v. Kohler Die & Spe- District Court had dismissed the complaint on cialty c~.~~~The Fair was brought under the its face. Noting that “[tlhe jurisdiction of the federal patent law, and Holmes defined juris- District Court is the only matter to be consid- diction as the “authority to decide the case ei- ered on this appeal,” Holmes reversed for a ther way.” He also noted two ways in which a unanimous court. The issue was not whether complaint could be dismissed on a motion for the plaintiff ultimately would prevail on his lack of jurisdiction: (1) “if it should appear cause of action, but whether the antitrust laws that the plaintiff was not really relying on the applied at all: patent law,” or (2) “if the claim of right were frivolous.” In the latter instance, “the jurisdic- The bill was brought before the deci- tion would not be denied, except, possibly, in sion of the Base Ball Club Case, and form.” In other words, if it were clear that the it may be that what in general is inci- claim raised was not “a substantial claim un- dental in some instances may rise to der an act of Congress,” a federal court would a magnitude that requires that it be not be required to engage in the charade of tak- considered independently. ing jurisdiction where later dismissal was in- evitable. In The Fair, jurisdiction was proper because the claim advanced was “made in good There are several ways to interpret the faith and [was] not frivolous.”’so STEALING HOLMES 117

merce as a matter of law. Hart means that a plaintiff satisfying the”incidenta1” effects test potentially could win on the merits. But how can that result be squared with the alternative argument in Federal Baseball? Re- call that Justice Minton began his dissent in International Boxing with these words:

To make a case under the Sherman Act, two things among others are es- sential: (1) there must be trade or com- merce; (2) such trade or commerce must be among the States.lX3

No one on the Supreme Court has ever disputed this reading of Federal Baseball, which went on to be the express (and unchallenged) inter- pretation of Justice Blackmun in Flood v. K~hn.’~~If this reading is right, baseball’s “per- In finding antitrust jurisdiction over the sonal effort” will always be personal effort; vaudeville circuit in Hart, therefore, Holmes thus, it will never be trade or commerce. Was adhered to the distinction set forth in The Fair. Justice Minton just wrong? He agreed that the holding in Hart did not re- He was, actually. He and many others mis- pudiate those cases dismissing claims for want read Federal Baseball in a small way with large of jurisdiction that were “absolutely devoid of consequences. Holmes did address a two-part merit.”1R1That was not the case in Hart, how- alternative argument in Federal Baseball, but ever: it was an alternative argument that worked in

It is enough that we are not prepared to say that nothing can be extracted from this bill that falls under the act of Congress, or at least that the claim is not wholly frivolous.’82

Thus, Hart cannot be read to mean that the plaintiff would inevitably lose anyway because the local exhibition - consisting exclusively of “personal effort” - was not trade or com-

Ray Chapman (above) was the rising star of the Cleveland Indians in 1920 when he was killed by a pitch that struck him behind the left ear. The Yankees‘ best pitcher, the universally dislikedCarl Mays (right), threw the ball, the only lethal pitch in the history of major league baseball. 118 JOURNAL 1998, VOL. 2 favor of the pluint@, not the defendant; it gave to get to the point as quickly as he could. It is the plaintiff two chances to win, not to lose. hard to imagine that he would order his argu- We can see the alternative argument Holmes ments in this way: “Let’s see, one ground of was responding to by looking at the briefs be- decision means that baseball by definition can fore the Supreme Court. The defendants in Fed- never, ever be subject to the Sherman Law; the eral Baseball made the argument that personal other is a fact-intensive analysis requiring evi- effort was not commerce, and the plaintiff had dence of interstate aspects of the business and responded that the claim was irrelevant. a careful balancing to determine whether those Whether or not the personal effort involved in aspects are incidental or not. I guess I’ll lead baseball was “an article of commerce,” plain- with the incidental balancing test.” tiff argued, “interstate commerce may be cre- Holmes was not wasting our time. The ated by the mere act of a person in allowing plaintiff could prevail by showing that the in- himself to be transported from one State to an- terstate aspects of the baseball business were other, without any personal effort.”lss Holmes more than incidental. If so, the alternative ar- was expressing his opinion on that argument gument rejected in Federal Baseball would in the second half of his dense paragraph in neither hinder the plaintiff nor save the defen- Federal Baseball. dant. In fact, if the plaintiff did not raise the In doing so, Holmes recognized that the point, there is no reason why a court who read plaintiff’s argument had two parts: in addition Federal Baseball accurately would have to to arguing that the interstate “incidents” were address the alternative argument - at all. sufficient to stamp the whole business as inter- state, plaintiff argued that crossing a state line B. ”Just The Smartest Guy to engage in an activity that was not otherwise Who Ever Lived” trade or commerce was enough to “create” in- terstate commerce. Wrong, said Holmes: “That In his justly famous lecture series on the which in its consummation is not commerce law of evidence, the late Irving Younger dis- does not become commerce among the States cussed a session of the Practicing Law Insti- because the transportation that we have men- tute concerned with restating the law on Bur- tioned takes place.”186All this exchange estab- dens of Proof and Presumptions. The issue had lishes is that the plaintiff had made its own for- been studied for some time. When a proposal malistic argument - that crossing a state line was made to re-submit the issue to committee could change something that was not commerce for more fruitless debate, committee member at all into interstate commerce - and Holmes Learned Hand rose to oppose the effort. Paint- rejected it. It is only because others have mis- ing a verbal picture of the moment as only he read this passage as a pronouncement that could, Younger described the great judge’s baseball could never be subject to the Sherman majestic ascent to address the room. “He Act that the subsequent mistakes of Toolson looked like God incarnate; he spoke like God and Flood v. Kuhn have loomed so large. incarnate -just the smartest guy who ever Understanding the alternative argument in lived -’’.I8’ Federal Baseball in this way explains a lot. Is it possible that Learned Hand saw what For one thing, it explains the result in favor of so many others missed? If he read Holmes cor- the vaudeville plaintiffs in Hurt. For another, rectly, he could easily have decided Gurdellu it answers an obvious question that no judge exactly as he did - seeming to ignore the “al- has ever posed, to wit, if baseball could never ternative” argument, and recognizing that the be trade or commerce, why did Holmes place advent of radio and television broadcasting had that argument second? We know that he was a fundamentally changed the calculus regarding practical guy who wrote standing up and tried the “incidental” interstate aspects of baseball. STEALING HOLMES 119

There are several reasons to think he had artists or actors and the costumes and parapher- it right. First, the conventional wisdom that read nalia used by them is but incidental of the main Holmes’ opinion as an alternative argument in purpose to entertain or act upon the vaudeville favor of the defendant was not yet firmly in stage.””’ The remaining members of the panel place. In fact, it was Gardella itself that occa- were Charles Hough and Learned Hand. sioned a spate of commentary popularizing the To Learned Hand, therefore, the analysis fallacy, which continued to grow as more deci- in Gardella was exceptionally straight-for- sions applying the antitrust laws to professional ward. The controlling issue was whether the sports were handed down during the 1950s. interstate aspects of the business were inci- With no clear consensus embracing the wrong dental. The facts had changed radically since interpretation, it is far less surprising that Hand 1922, principally due to the role of broadcast- did not address what was then only the second ing. When he said “the players are the actors, ground for his concurring panel-member, the radio listeners and the television specta- Jerome Frank. Second, Hand and Holmes knew tors are the audience,”Ig2he was speaking in each other well, communicated during the pe- terms equally applicable to Hart as to Fed- riod in which Federal Baseball came down, eral Baseball. He was simply holding that the and conceivably could have discussed the con- same trial that took place in Hurt should take trolling issues. Hand had encountered Holmes place in Gardella. It would not occur to some- on a train in June of 1918, and they began a one who saw the issue so plainly that there was lengthy exchange of correspondence, largely a need to address any “further ground” that on the First Amendment.188In February of Judge Frank had discovered in Federal Base- 1923, during the Term following Federal ball, or to argue over the merits of the reserve Baseball, Holmes attended a meeting of the clause. He would not have felt it necessary to American Law Institute at which he saw Hand. labor peripheral arguments to which the re- Holmes described the meeting in a letter to sponses were (to the smartest guy who ever Pollock, referring to Hand as “a good U.S. lived) so obvious. This explains the odd note District Judge, whom I should like to see on of frustration in Hand’s opinion; this explains our bench.”Ix9 why Learned Hand simply did “not know how Third, and most important, Learned Hand to put it in more definite terms.”193 was no stranger to this issue or to Holmes’ analysis. Shortly after Holmes saw Hand in 1923, VII. Stealing Holmes: Why Flood two things happened. First, Hand was elevated Was Wrong to his seat on the Second Circuit, where he would remain until 1961. Second, the Supreme What has been discussed so far should Court handed down its decision in Hart v. B.F enable us to put in perspective - and to be Keith Vaudeville Exchange. As I noted above, more precise when we discuss - baseball’s Hart had come to the Supreme Court from the “exemption” from the antitrust laws. There is Southern District of New York, to which it was no statutory exemption for baseball in the anti- remanded. Upon completion of the subsequent trust laws. There is a judicially created exemp- trial in Hart, the District Court found for the tion, but it did not originate with Federal Base- defendants, “principally upon the [factual] ball. The Second Circuit’s decision in Gardella determination. . . [that] the parties were [not] made the point; it could not have been much of engaged in interstate commerce.”19oThe plain- an exemption if the first circuit court to revisit tiff appealed again, and the Second Circuit af- the issue in the 1940s found that it did not firmed in an opinion by Judge Manton. On the exist. evidence submitted, the court concluded that It was the decision in Toolson that first cre- “the transportation in interstate commerce of ated an exemption meant exclusively for base- 120 JOURNAL 1998, VOL. 2 ball and no other business. The attempt by the can thus begin sentences with the words: “One Toolson majority to attribute that exclusive ex- hundred years ago, we held . . . ”), but we have emption to the actual intent of Congress, how- had many, many Congresses - over one hun- ever, was so baseless that no one took it seri- dred at last count. At this writing, both houses ously. Thus, it took several years and several of Congress are controlled by the same party. more opinions before the message could sink Suppose that a differently constituted Congress in - even for some of the Justices in the passed a law in the 197Os, which was egre- Toolson majority. And even after the Court put giously misinterpreted by the Supreme Court its foot down in Radovich, holding that not in the 1980s. Should today’s Congress be per- even football could have the same exemption mitted to carve that bad decision in stone by as baseball, certiorari was still granted in Flood considering a bill to disapprove the Court’s v. Kuhn for the simple reason that the law on decision, and then failing to act? Or should a this question was embarrassing. President with a veto-proof minority be able to Given the state of things when Flood was achieve the same result? As often as not, we decided in 1972, however, is it not fair to say are grateful when Congress fails to act. It is that the ship had sailed? The Court missed its dangerous to attempt to ascribe discernible in- chance, perhaps, to apply Holmes’ opinion tent to such failures. properly in Toolson, and improved nothing by (2) The Court in Flood expressed its con- its embrace of illogic and inconsistency in the cern about the “confusion and the retroactiv- boxing and football cases, but how could that ity problems” that could come from changing be undone so much later in Flood? Surely, one the rules now, when baseball “has been allowed may argue, it will not help the Court’s stature to develop and to expand unhindered” since with the legal community or the general public “1922.”’95The first problem with this ground is to add fickleness to long-standing error. one of logic. The Flood Court was, by its own But, wait a minute. Such sentiments im- terms, dealing with an “anomaly” -that base- plicitly accept the grounds put forth in Flood ball is exempt while other sports are not. But to justify the result. If we look harder, however, why would football and boxing have relied on we will see that none of the three bases for the the rule of Federal Baseball over the years decision withstands scrutiny: any less? We would expect those sports not to (1) The first was Congress’s “positive in- have relied only if there were any basis to sus- action” over the years, which the Court said pect that the exemption was exclusive to base- “clearly evinced a desire not to disapprove” ball, and we know that that proposition did not the baseball exemption. The opinion in Flood, exist until it sprang fully formed from the last however, did not even respond to the ineluc- sentence of Toolson. The Court nonetheless table argument on this point by the dissent in turned a deaf ear to any claims of reliance in the both Toolson and Flood Congress had repeat- boxing and football cases. On the other hand, if edly considered and failed to pass bills that, far we grant that assumption and say that other from “repealing” the exemption, would have sports would have known that only baseball was grunted some or all of it to baseball. The fail- exempt, the conundrum simply shifts: if other ure to pass an exemption is weak evidence of professional sports have never relied on an a specific intent to preserve it. antitrust exemption, they seem to have devel- More fundamentally, however, the notion oped nicely. Why would it be so confusing and that subsequent congressional inaction should disruptive in 1972 to have baseball play by the cause the Court to avoid correcting its own same antitrust rules as football?’96 mistakes is, as Justice Scalia has put it, “a ca- Another fundamental flaw in this “retro- nard.”’94Since the Constitution was ratified, we activity” concern is that its factual premise is have always had a single Supreme Court (which probably false. Prior to Toolson,just what was STEALING HOLMES 121 the expectation of organized baseball regard- not apply to others similarly situated. That did ing its supposed antitrust immunity? In the late not happen until Shuster and International 1940s, a leading sportswriter, Lee Allen, was Boxing in 1954, and the point was not truly commissioned to write a history of baseball. driven home until Radovich was decided in The result, 100 Years of Baseball, was pub- 1957. lished in 1950, after the Gardella decision, Thus, none of the grounds assigned in but before Toolson. From that perspective, Flood v. Kuhn stands up. What the opinion in Allen reached this conclusion about baseball’s Flood reflects in every comer and crevice,more- legal immunity: over, is the Court’s perceived need to enlist Holmes in support of the result. To be persua- In three quarters of a century, the va- sive, in other words, the reasoning set out in lidity of the reserve clause has some- Flood must be attributed to Holmes. Otherwise, times been affirmed in court, but usu- the “retroactivity” and the “established aber- ally it has been denied. The issue is ration” arguments won’t work. To sell the no- not yet settled, and it is likely that tion of entrenched principles that could not be many additional lawsuits will be filed abandoned without disruption, “fifty years” and before it is.197 “half a century” sound properly dramatic. Thus, the opinion explicitly referred to the age of Federal Baseball no fewer than five times in During that same window of time - be- its last three and one-half pages (“for half a tween Gardella and Toolson -Commissioner century,” “since 1922,” “half a century,” “50 “Happy” Chandler testified before Congress in years after,” “in 1922”).200Justice Douglas was 195 1, offering a number of reasons for reinstat- an unwitting ally in this effort, because his mis- ing and granting amnesty to the Mexican play- reading of Federal Baseball as turning on the ers. His reason for settling the Gardella case, “trade or commerce” point also required that however, was simply this: “[Tlhe lawyers the clock be turned back to 1922 and all eyes thought we could not win the Gardella case.’’198 fixed on Holmes. (He understandably preferred (3) The final argument in Flood, based on that to even the mildest inspection of the opin- the weight of judicial precedent discussing ion he joined in Toolson.) In contrast to five Federal Baseball, had two aspects. First, the decades, the nineteen years that had passed baseball exemption is an established “aberra- since Toolson, or (more accurately) the fifteen tion” that “has been with us now for half a cen- years since Radovich, would have sounded tury.” Second, applying the antitrust laws to feeble. (Elvis has been dead for more than baseball now would require “withdrawing from twenty years, and I have unopened boxes in the conclusion as to congressional intent made the garage that are fifteen.) in Tool~on.”’~~Taking the easier point first, the The most egregious example of falsely en- “conclusion as to congressional intent” in listing Federal Baseball to the result in Flood Toolson was a fabrication; no one has ever came in the final sentence, where the Court in- tried to defend it, and it could hardly be de- sisted that there be a congressional rather than scribed as time-honored. Flood provides no a judicial solution to the anachronistic base- reason why “withdrawing” from that conclu- ball exemption. That sentence makes the claim sion would be inappropriate from any juris- that this stated preference for legislative ac- prudential perspective. Turning to the first tion was “what the Court said in Federal Base- point, the so-called “aberration” could hardly ball in 1922 and what it said in Toolson in be given a fifty-year pedigree. The baseball ex- 1953.” As to Federal Baseball, that statement emption became an aberration only when it is obviously false. There was no suggestion in became clear that the same exemption would Federal Baseball that Congress might choose 122 JOURNAL 1998, VOL. 2 to bring a business under the antitrust laws un- Paley said in the eighteenth century - “who less and until it affected interstate commerce. can refute a sneer?”203 The last sentence in Flood was therefore I am not referring to the scholars and equally as unrooted in the words of Federal judges mentioned in this article, who (for bet- Baseball as the last sentence in Toolson. Just ter or worse) thought thoroughly and hard as Toolson had tagged Holmes with an express about Federal Baseball. We are particularly congressional intent that did not exist, so Flood indebted to Professor White for his engross- tagged him with a preference for congressional ing book on basebalL204But for the general action that he did not mention. Both Toolson population of lawyers and (I love this term) and Flood were wrongly decided. Both have non-lawyers, Holmes’ baseball opinion mer- been caught stealing Holmes. its only condescension - the knowing snick- ers of those who do not know. As we have seen, VIII. Conclusion moreover, Federal Baseball is scorned prin- cipally for things that were not in the opinion, Soon after I began practicing law, I worked but later added by Toolson and Flood. with a colleague who was one of the legends of The alternative standard I propose - the the District of Columbia bar, H. Chapman Rose. challenge, if you will - is the one so well Then in his mid-seventies, “Chappie” told fas- articulated by Allan Bloom in an essay on cinating stories of his year as the last law clerk Shakespeare: to serve Oliver Wendell Holmes, Jr. At the time, Holmes was over ninety, and Chappie spent Every rule of objectivity requires that some of his time reading aloud to him. One day an author first be understood as he the selection was Lady Chatterly’s Lover.Af- understood himself; without that, the ter a time, however, Holmes raised his hand: work is nothing but what we make of “Sonny, we will not finish this book. Its dull- it.Z05 ness is unredeemed by its porn~graphy.”~~’ Another story Chappie would tell has also been chronicled by Holmes’ biographers. It was And “we” have made a mess of Federal Base- Holmes’ description of Ralph Waldo Emerson, ball. Congress, as always, has legislation un- upon reading a paper the very young Holmes der consideration to “repeal” the baseball ex- had prepared as a critique of Plato. Emerson emption. While I expect any such bill to be writ- had simply said: “When you strike at a king, ten in impenetrable prose, with several special- you must kill him.”202This discussion of interest ornaments, my proposal would be Holmes’ baseball opinion has been written with simple: the conviction that Emerson’s words, if ever true, are sadly untrue today. Now, dismis- No business, industry, service, or other siveness has replaced analysis. The popular commercial activity is exempt from the culture encourages us to feel intellectually su- antitrust laws unless expressly so pro- perior to those in the past who did not speak vided by act of Congress. The decision precisely in our words. It requires too much in Toolson v. Nav York Yankees is ex- work to appreciate how those who came be- pressly disapproved. fore us could take seriously concepts we now view as trite (like the difference between inter- Note: The author is gratefulfor the support and state and local Commerce). Thus, Holmes never help of his friends and colleagues, especially had a chance; he has been left to dangle in the Joe Sims, Don Ayel; Joe Migas, Feroz Moideen, wind not because anyone has understood him Dave Rutowski, Jana Crouse, and Marybeth fully in his terms, but because - as William McDonald. STEALING HOLMES 123

Author‘s Note players -bush-leaguers need not apply. We This article was completed several cannot have our federal courts clogged with months before the end of the historic 1998 Toledo Mud Hens bringing monopolization claims, after all.) baseball season - a year that featured the un- thinkable seventy home runs of Mark As the commentary accompanying the McGwire and the overwhelming MVP season statute, not to mention the text itself, makes clear, this partial application of antitrust to of Sammy Sosa, as well as a perfect game and near-perfect season by the New York Yankees. baseball is designed specifically to give the As if that were not enough history to make, players’ union another bargaining chip in ne- October of 1998 also brought the final pas- gotiations with the owners. The idea is that, sage and signing of Public Law 105297, the when the negotiations get tough, the players can bring an antitrust suit to increase their le- “Curt Flood Act of 1998.” This Act works a partial repeal of baseball’s antitrust exemption, verage. The tricky part is that the antitrust ex- emption for labor agreements protects the such that a major league player - and only a owners unless the union is decertified before major league player - may now file an anti- trust suit. the suit is brought (if there is no union, the I regret to report that the Curt Flood Act owners can’t claim the labor exemption).’ Decertification is no small thing, and such a of 1998 is not as short as my legislative pro- decision is obviously controlled by the union. posal. In fact, it is over 1,200 words long, add- ing a new Section 27 to the Clayton Act with Thus, the relief granted by the Curt Flood Act no fewer than eighteen separate sections and can only redound to the benefit of the union, subsections. The Act describes the purpose because the union has effective control over of Section 27 as follows: whether any major league player will ever suc- cessfully invoke the “right” the statute pro- It is the purpose of this legisla- vides. In the meantime, all of the other poten- tion to state that major league base- tial plaintiffs - another owner, a competitive ball players are covered under the league, or a hapless minor-leaguer like our old antitrust laws (ie.,that major league friend George Toolson - are simply left out baseball players will have the same in the cold. rights under the antitrust laws as do The news stories, legislative reports, and other professional athletes, e.g., foot- public statements occasioned by the Curt ball and basketball players), along Flood Act are peppered not only with the usual with a provision that makes it clear gaffes about Holmes and Federal Baseball, that the passage of this Act does not but also with novel historical propositions that change the application ofthe antitrust are more than a little dubious. As to the gaffes, laws in any other context or with re- the following is typical: spect to any other person or entity. The legislation reverses what P.L. 105-297, Sec. 2. In other words, a Sen. Orrin Hatch, R-Utah, a chief major league player can now sue under the backer, called an “aberrant” 1922 Su- antitrust laws, but the “exemption” is undis- preme Court decision that exempted turbed with respect to such matters as team baseball labor relations from antitrust relocation, league expansion, and the minor laws on the grounds that it is a game leagues. (The Act goes to nearly comical and not a business.* lengths of definition and loop-hole plugging to ensure that it applies only to major league As to revisionist history, both the Senate Re- 124 JOURNAL 1998, VOL. 2 port and the players association have pointed was invented by the last sentence of Toolson in to another benefit of this “repeal”: preventing 1954, and was not rendered “aberrant” until the strike^.^ In the view of hall-of-fame pitcher, boxing and football cases were decided later Jim Bunning, then a House member from Ken- that decade. tucky, “the Curt Flood Act . . . gets at ‘the root The second proposition -that the exemp- cause’ of eight baseball strikes and stoppages tion has been the cause of strikes and work in 30 year^."^ Finally, the White House state- stoppages- is a bit of special pleading by the ment upon the signing of the bill spends most players’ union that naturally appealed to poli- of its effort lauding the “courageous baseball ticians wishing to appear to be “doing some- player and individual, the late Curt Flood, thing” about the 1994-95 baseball strike. whose enormous talents on the baseball dia- When this argument found its way into the mond were matched by his courage off the Senate committee report of the “Major League field. . . . His bold stand set in motion the Baseball Reform Act of 1995,” however, it was events that culminate in the bill [the President promptly refuted by the minority reports of has] signed into law.”5 both Republicans and Democrats,’ which Let’s take these points one at a time. First, pointed out that there is no historical evidence the notion that Holmes said baseball was ex- for this alleged connection between strikes and empt because it is a “game,” not a business, is antitrust. Take the record in baseball itself. so groundless that even Justice Blackmun spent Thomas Boswell has noted that the first “sig- time debunking it in Flood v. Kuhn: nificant work stoppage” in baseball did not occur until 1981.R The Committee Report does not suggest why the antitrust exemption, It should be noted that, contrary which the Report dates back to Holmes, took to what many believe, Holmes did sixty years to stop play. Then consider the call baseball a business; time and plethora of work stoppages in other, again those who have not troubled to non-exempt sports, such as the NHL and (as read the text of the decision have this is written) the NBA. Not even Jim claimed incorrectly that the court Bunning can explain how those crafty NFL said baseball was a sport and not a owners got away with using scab players (and business.‘j having the games count in the standings) dur- ing a football strike, when the players had the As we have seen, moreover, Holmes did weapon of antitrust litigation available. not use the word “exempt,” did not suggest that Turning to the White House’s effusive baseball was different from any other sport “thank you” to Curt Flood for setting “in mo- with respect to antitrust, and did not imply that tion the events that culminate[d]” in the Curt his conclusion reached about the interstate na- Flood Act of 1998, let us be clear. Curt Flood ture of the business could not change as soon was a fine man and a spectacular ballplayer. as the facts did. It should not be surprising He took a stand and, unlike many in our times, that, when Learned Hand reached exactly that accepted the full consequences. It neither conclusion in 1949, he did not even face the questions his courage nor demeans his argument that there was any special “exemp- memory to suggest that Justice Blackmun’s tion” for baseball. As we also saw, not even opinion in Flood v. Kuhn probably delayed any those closest to baseball in the early 1950s repeal of baseball’s antitrust exemption - es- thought they had any special exemption - or pecially the kind of partial appeal reflected in even a reasonable chance to overturn Learned the 1998 statute- by as much as a genera- Hand’s decision in Gardelia. Rather, the base- tion. ball “exemption” discussed so blithely today In sum, I would draw two initial conch- STEALING HOLMES 125 sions from consideration of the Curt Flood Act 1998. Thus, those who have announced in the of 1998. First, the Act could be a poster child press and in committee reports that the statute for the proposition that a subsequent Congress works “an explicit rever~al”’~of Federal Base- should not be entrusted to repair judicial mis- ball have not even read the statute they are cit- takes in statutory construction. It has all the ing. Is that too much to ask? marks of bad legislation on it, from special in- Of course it is. But take heart. The cases, terest pleading to unprincipled compromises the statutes, the words are there to be read and (one explanation for the exclusion of the mi- understood by those who are unembarrassed nor leagues was that the Chairman of the House by accuracy for the sake of accuracy. Let us Judiciary Committee is a minor league fan who take solace in knowing that, even as the rea- wanted his favorite teams unaffected9). Far soning of Federal Baseball remains misun- from removing Toolson’s erroneous exemption derstood, its holding remains undisturbed. And of baseball from the antitrust laws, this Act if we are the only ones who know, that’s OK works a small repeal of only arguable utility too. for those who need protection the least -trans- forming the rule of Toolson into a judicial ex- Endnotes emption that inexplicably applies to some I 259 U.S. 200 (1922). Federal Basebull is “still the law” ballplayers, but not to others. despite the recent passage of the Curt Flood Act of 1998, But such a result should not be surpris- which purports to work a partial repeal of baseball’s anti- ing. We have been shown time and again that trust exemption. The new statute is discussed in the the people involved in the legislative process Author’s Note at the end of this article. simply cannot help themselves. They live in Gardella v. Chandler, 172 F.2d 402 (2d Cir. 1949). Toolson v. New York Yankees, Inc., 346 U.S. 356, 357 the now. They pass (or fail to pass) legisla- (1953). tion in response to the ability of current con- Flood v. Kuhn, 407 U.S. 258 (1972). stituents and interest groups to reward them Joe Sims, Antitrust in the Health Care Field: in the appropriate political coin. It is chimeri- The First Decade (1977-1987), (unpublished manu- cal to expect them simply to restore the origi- script, on file with author). Before the Nat’l Health Lawyers Assoc. Tenth Annual Seminar on Antitrust in nal intent of a prior Congress to a statute that the Health Care Field (Jan. 29, 1987). a court has misread. If the correct answer to a Gardella v. Chandler, 172 F.2d 402, 409 (2d Cir. statutory question is “black,” but a court 1949). wrongly reads it as “white,” the legislature will Salerno v. American League, 429 F.2d 1003, 1005 inevitably cure the mistake by enacting some (2d Cir. 1970), cerf. denied, 400 U.S. 1001 (1971). shade of mottled gray. G. Edward White, Creating the National Pastime 70 (1 996). The second (and highly satisfying) con- ’ Flood v. Kuhn, 407 U.S. at 286. clusion I draw from the Curt Flood Act of 1998 I” 193 U.S. 197, 400 (1904). is that it provides unwitting support for my the- Hans B. Thorelli, The Federal Antitrust Policy474( 1955). sis here: that no “exemption” can be pinned Robert H. Bork, The Antitrust Paradox 3 1 (1978). on Holmes, and that you can “repeal” the ex- I3 Id. l4 Rothety Storage & Van Co. Atlas Lines, Inc., emption, in whole or in part, without rejecting v. Van 1986-1 Trade Cas. (CCH) 7 67,121 at 62,774 (1986). the reasoning of Federal Baseball. Congress Is Richard A. Posner, “Foreword: Holmes,” 63 Brook. has now illustrated the point by enacting a law L. Ra! 7,7 (1 997). for the purpose of repealing baseball’s antitrust l6 Id. at 17. exemption that, by its terms, does not overrule l7Radovich v. Nut% Football League, 352 U.S. 445, 45 1 Holmes’ holding. The plaintiff before Holmes, (1957). Bork, note ~, at 30 (“the Addyston opinion of 1898 you will recall, was the Federal Baseball Club may well have been the highwater mark of rational anti- of Baltimore, not a major league ballplayer and trust doctrine”). hence not affected by the Curt Flood Act of United States v. Von k Grocery Co., 384 US.270 (1966) 126 JOURNAL 1998, VOL. 2

2o Albrecht v. Herald Co., 390 U.S. 145 (1968) (Douglas, s2 Id. at 291-93. J., concurring). 53 Id. at 293. zt State Oil v, Khan, 118 S. Ct. 275 (1997). s4 Bill James, The Bill James Historical Baseball 22 Sierra Club v. Morton, 405 U.S. 127, 741 (1972) Abstract 570 (Villard 1988). (Douglas, J., dissenting). 55 “Musial calls ‘Strike 3’ on Pasquels,” St. Louis Post- 23 Lee Allen, 100 Years of Baseball 180-88 (1950). Dispatch, Jun. 7, 1946, at 8C. Similar circumstances attended the birth of the Union ” “Card Stars Not to Jump,” N.Y. Times, May 29, 1946, Association, id. at 74-83, the Player’s (or Brother- at 2617. hood) League, id. at 103-14, the American Association, id. 57 “Musial Calls ‘Strike 3’ on Pasquels,” St. Louis Post- at 64-73, and of course the surviving American League, id. Dispatch, Jun. 7,1946, at 8C. at 142-5 1. See also Hy Turkin & S.C. Thompson, The Offi- 5R Allen, supra note 23, at 293. cial Encyclopedia of Baseball 16-20(revised edition 1956). 591d.at 294.

24 Bob Broeg & William J. Miller, Jr., Baseball from a Differ- bu White, supra note 8, at 292. ent Angle 224 (1988); Turkin & Thompson, supra note 23, ht Id. at 36. 62 Gardella v. Chandler, 172 F.2d 402 (2d Cir. 1949). 2sBroeg& Miller, supra note 24, at 225. 61 172 E2d at 409.

26 See National League of Prof? Baseball Clubs v. Fed- 64 Id. at 409. eral Baseball Club ofBaltimore. Inc., 269 E 68 1,682 (D.C. 65 Id. at 4 10. Ci. 1920). 6b Id. at 407,408. *’Roger I. Abrams, Legal Bases, Baseball and The Law at 67 Id. at 407,408. 55 (1998); Allen,suprunote23,at 185. b8 White, supra note 8, at 293-94 (emphasis added). 28 Federal Baseball Club of Baltimore, Inc. v. National 69 172E2dat412. League of Prof7 Baseball Clubs, 259 U.S. 200, 208 7o Id. (1922); The New York Times, Apr. 13, 1919, at 21. Gerald Gunther, Learned Hand, The Man and the 29 Federal Baseball, 259 U.S. at 208. Judge, xv (1994). 155 U.S. 648 (1895). 72 Dan Abramson, “Baseball & the Court,” Constitu- ’I Federal Baseball, 259 U.S. at 201 (emphasis added). tion, Vol. 4iNo. 3, at 74 (Fall 1992); see also Burt 32 Id. at 203. Solomon, The Baseball Timeline, 493 (I 997). 33 Id. at 208-209. 73 Toolson v. New York Yankees, 346 U.S. 356, 358 34 White, supra note 8, at 79. (1953) (Burton, J. dissenting) (citing H.R. Rep. No.

35 Id. at 79. 2002, “Impact of Antitust Laws on Organized Base-

36 “The Supreme Court 1953 Term,” 68 Harv. L. Rev. ball” 82d Cong., 2d Sess. 4, 5). 104, 136 (1954). 741d.,346 U.S. at 361 (emphasis added). 37 John Eckler, “Baseball - Sport or Commerce?,” 17 75 Flood v. Kuhn, 407 U.S. 258, 281 (1972). U. Chi. L. Rev. 56, 65 (1949). 76 See the Author’s Note on the partial repeal in the

3R Id. at 66. Curt Flood Act of 1998, infra at p. ??.

39 “Recent Cases,” 105 U Pa. L. Rev. 110, 11 1 (1956). 77 Toolson, 101 F. Supp. 93, 94 (S.D. Cal. 1951).

40 United States v. Int? Boxing Club of New York, Inc., 7R 101 E Supp. at 94, 95. 348 US. 236,25 1 (1954) (Minton, J., dissenting). 79346US. at 357. 41 Id. at 248 (Frankfurter, J., dissenting). “Recent Cases,” 105 0: Pa. L. Rev. 110, 112-13 n. 24 42 Flood v. Kuhn, 407 U.S. 258, 286 (1972) (Douglas, (1956). J., dissenting). *I His name was Paul Sorrento. 43 Id. R2 346 U.S. at 360, 359 n. 3, 358, 358 (emphasis

44 United States v. Shubert, 348 U.S. 222 (1954). added).

45 Radovich v. Nut7 Football League, 352 U.S. 445 x3 346 U.S. at 360. (1957). 84 259 U.S. at 209. 46 Flood v. Kuhn, 407 U.S. at 270 n.10 (quoting 2 Harold 85346U.S.at361,at358and365,358n.2. Seymour, Baseball 420 (1971)). 86 US. v. Shubert, 348 U.S. 222 (1955). 47 White, supra note 8, at 71-72; N Y: Times article, April 87 US. v. International Boxing Club ofNew York, Inc., 348 12, 1919, p. 12, col. 2. U.S. 236 (1955). 48AnthonyJ. Sebok, “Introduction,” 63 Brook. L. Rev. 1,3 Shubert, 348 U.S. at 228 (emphasis added), 229,230.

(1997). 8q Hart ci B.R Keith Vaudeville Exchange, 262 U.S. 271 4y Allen, supra note 23, at 29 1. (1923). ” Id. 262 US. at 274. Id. at 291-92. 348 U.S. at 230. STEALING HOLMES 127

y2 348 U.S. at 242-43. 141 Asinof, supra note 133, at 13. 93 Id. at 243. 142 Id. at 239 & 270.

94 348 US. at 251. 14’ Stephen Jay Gould, “Introduction,” Asinof, Eight y5 Id. Men Out xviii (1988).

96 348 U.S. at 250. 144 Sowell, supra note 122. ” Radovich v. National Football League, 352 U.S. L45 Sowell, supra note 122 at 3. 445, 447 (1957). 146 Id. at 20-2 1. 9RId.at451,452. 1471d.at 188.

9y 352 U.S. at 452. 14RId. at 20. looG.E. White, supra note 8, at 297. 149 Id. at 197. Iu1 Abramson, supra note 72, at 74. ISu James, supra note 54 at 87. lo*Flood v. Kuhn, 407 U.S. 258 (1972). Is] David Halberstam, The Summer of ’49 at 80-81 (1989). Io3404U.S.880(1971)(certiorari). Is2 James, supra note 54 at 129.

ILM 407 U.S. at 269. Compare Halberstam, supra note 151, at 12 with James, Ius Id. at 261. supra note 54, at 129. Id. at 263. Is4Halberstam supra n. 15 1. Io7Id.at261,258,283. IS5 Solomon, supra note 72, at 494. Ion Id. at 282,284 Is6 Id. at 548. Io9407U.S. at285. 157Halberstam,supranote151,at23. at 286. Isxld.at 150. /I1Id. Is9 Id. at 207. li2 Id. Ibu Id. at 252. 352 U.S. at 452. Ray Robinson, The Home Run Heard ’Round 407 U.S. at 282. the World (1991). 407 U.S. at 286 & n.1. 162 White, supra note 8, at 207. G.E. White, supra, n. 8 at 70. 163 Id. at 206-07 & 218. Id. at 82, 83, (emphasis added). 164 Sugar, supra note 130, at 180. Richard A. Posner, ed. The Essential Holmes at 165 Id. 207 (1992) (excerpt from address on John Marshall). 16b James, supra note 54, at 69 & 88; Shaughnessy, IIYBroeg& Miller, supra n. 24 at 15. supra note 128, at 21. I2O Charles C. Alexander, John McCraw 2 (Viking 167 Sowell, supra note 122, at 21-22. 1988). 259 US. at 208. Broeg & Miller, supra note 24, at 9. 16y 269 F. at 685.

I** Mike Sowell, The Pitch That Killed 10 (1989). ”“259U.S. at208. 123 Id. at 69. 407 US. at 287. 124 Solomon, supra note 72 at 202. 172 259 U.S. at 203.

125 James, supra note 54 at 101. 173 Id. 126 Id. at 86. 174 Id. at 204 (emphasis added).

127 Id. 17s See, e.g., McLain v. Real Estate Bd., 444 US. 232 128 Dan Shaughnessy, The Curse of the Bambino 29 (1980). (1 990). 176 White, supra note 8, at 81. James, supra note 53 at 91. 177 262 U.S. at 273-274.

I3O B.R. Sugar, Baseball’s 50 Greatest Games 177- 17x Davis v. Passman, 442 U.S. 228, 239 n.18 (1979) 78 (1986). (explaining the difference between “jurisdiction,” Solomon, supra note 72 at 222. “standing,” “cause of action,” and “relief’). Id. at 225. 179228US. 22 (1913). Eliot Asinof, Eight Men Out (1963). Inu Id. at 25-26. Eight Men Out at 5. 262 US. at 274.

135 White, supra note 8, at 101-02. In2 Id. 136 Asinof, supra note 133, at 21-22. In3 348 U.S. at 25 1. I”Id. at 16-17. IK4 407 US. at 270 n.lO. 13* G.E. White, supra note 8, at 105. IR5259 U.S. at 203. Id. at 95-96. In6 Id. at 209.

14u Solomon, supra note 72, at 219-20; Asinof, supra IrvingYounger, Basic Concepts In The Law ofEvidence, note 130, at 14-15. Tape No. 1 1, “Burdens of Proof and Presumptions” ma- 128 JOURNAL 1998, VOL. 2

tional Institute for Trial Advocacy). Holmes and His Family 128 (1944). IRS G.Edward White, Justice Oliver Wendell Holmes, Law 203 William Paley, The Principles of Moral and Political and the Inner Self, 424-25 (1993). Philosophy, Vol. 11, book\! ch. 9 (1785). Holmes to Pollock (2/24/23), quoted in Richard A. Posner, ,04 White, supra note 8. The EssentialHolmes at216-17. ,05 Allan Bloom, “Political Philosophy and Poetry” (l964), Hart v. B.E Keith, 12 F.2d 341, 344 (2d Cir. 1926). reprinted in Giants and Dwarfs: Essays 1960-1990 61 Id. at 343. (1990). Iq2 172 F.2d at 408. Iy1 Id. Endnotes (to Author’s Note) Iy4 Johnson v. Transportation Agency, Santa Clara ’ See Brown v. Pro Football, Inc., 5 18 U.S. 23 1,250( 1996). County, California, 480 U.S. 616, 672 (1987) (Scalia, J. Abrams, “Congress sends baseball antitrust bill to presi- J., dissenting) (“vindication by congressional inaction dent” [AP wire story] October 7, 1998. is a canard”). 3E.g., S. Ross “Clinton signs bill removing baseball anti- 1y5407U.S.at283. trust exemption for labor matters.” [AP Wire story] Octo- Iy6 Although it is beyond the scope of this article, one ber28,1998. historical irony of the baseball “exemption” is the lack of 4M. Deihel, “U.S. Deletes Part of Baseball’s Antitrust Sta- practical impact it has had, in large part due to the labor tus,” Scripps Howard News Service, October 9,1998. exemption from the antitrust laws. This is why, from issues 3tatement By the President, MZ Presswire, October 29, of free agency to league organization, the various profes- 1998. sional sports have such striking similarities - and why 6Floodv. Kuhn, 407 US. 250 at 270 n.10 quoting H. Seymour, more recent attempts by lower federal courts and state Baseba21420 (1971). courts to limit the reach of the baseball exemption to the 7Repo~104-231, Major League Baseball Reform Act of reserve clause have had little practical effect as well. E.g., 1995, S.627,104th Congress, 2d Sess. (February 6,1996) at Piuzza v. Major League Baseball, 831 F. Supp. 420, 438 19 (Sen. Specter) & 26 (Sens. Brown and Feinstein). (E.D. Pa. 1993); Butterworth v. National League ofprofess- ST.Boswell “NBA Steals Wrong Play From Baseball,” Wash- sional Baseball Clubs, 664 So. 2d 1021 (Sup. Ct. Fla. 1994). ington Post, Sports, at CI (November 6, 1998). y“Baseball’s Exemption: Striking Out?’ Congressional Iy7 Allen, supra note 23, at 72. Quarterly Weekly, August 15, 1998 at 2222. Iy8White, supra note 8, at 295. ‘“See,e.g., Report NO. 105-1 18, Curt Flood Act of 1997, lYy407 US. at 284. S.53, 105th Cong., 1st Sess. at 7 (October29,1997) (Con- 20” 407 U.S. at 282-285. gressional Budget Office Cost Estimate) (“Ifenacted, S.53 *OI Rose family anecdote, as conveyed to the author. would represent an explicit reversal of. . . Federal Base- Catherine D. Bowen, Yankee From Olympus, Justice ball”).