FLOOD v. KUHN(1972)
Petitioner, a professional baseball player "traded" to another club without his previous knowledge or consent, brought this antitrust suit after being refused the right to make his own contract with another major league team, which is not permitted under the reserve system. The District Court rendered judgment in favor of respondents, and the Court of Appeals affirmed. Held: The longstanding exemption of professional baseball from the antitrust laws, Federal Baseball Club v. National League, 259 U.S. 200 (1922); Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953), is an established aberration, in the light of the Court's holding that other interstate professional sports are not similarly exempt, but one in which Congress has acquiesced, and that is entitled to the benefit of stare decisis. Removal of the resultant inconsistency at this late date is a matter for legislative, not judicial, resolution. Pp. 269-285.
443 F.2d 264, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which STEWART and REHNQUIST, JJ., joined, and in all but part I of which BURGER, C. J., and WHITE, J., joined. BURGER, C. J., filed a concurring opinion, post, p. 285. DOUGLAS, J., post, p. 286, and MARSHALL, J., post, p. 288, filed dissenting opinions, in which BRENNAN, J., joined. POWELL, J., took no part in the consideration or decision of the case.
Arthur J. Goldberg argued the cause for petitioner. With him on the briefs was Jay H. Topkis.
Paul A. Porter argued the cause for respondent Kuhn. Louis F. Hoynes, Jr., argued the cause for respondents Feeney, President of National League of Professional Baseball Clubs, et al. With them on the brief were Mark F. Hughes, Alexander H. Hadden, James P. Garner, Warren Daane, and Jerome I. Chapman. [407 U.S. 258, 259]
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
For the third time in 50 years the Court is asked specifically to rule that professional baseball's reserve system is within the reach of the federal antitrust laws. 1 [407 U.S. 258, 260] Collateral issues of state law and of federal labor policy are also advanced.
The Cincinnati Red Stockings came into existence in 1869 upon an outpouring of local pride. With only one Cincinnatian on the payroll, this professional team traveled over 11,000 miles that summer, winning 56 games and tying one. Shortly thereafter, on St. Patrick's Day in 1871, the National Association of Professional Baseball Players was founded and the professional league was born.
The ensuing colorful days are well known. The ardent follower and the student of baseball know of General Abner Doubleday; the formation of the National League in 1876; Chicago's supremacy in the first year's competition under the leadership of Al Spalding and with Cap Anson at third base; the formation of the American Association and then of the Union Association in the 1880's; the introduction of Sunday baseball; interleague warfare with cut-rate admission prices and player raiding; the development of the reserve "clause"; the emergence in 1885 of the Brotherhood of Professional Ball Players, and in 1890 of the Players League; the appearance of the American League, or "junior circuit," in 1901, rising from the minor Western Association; the first World [407 U.S. 258, 262] Series in 1903, disruption in 1904, and the Series' resumption in 1905; the short-lived Federal League on the majors' scene during World War I years; the troublesome and discouraging episode of the 1919 Series; the home run ball; the shifting of franchises; the expansion of the leagues; the installation in 1965 of the major league draft of potential new players; and the formation of the Major League Baseball Players Association in 1966. 2
Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, [407 U.S. 258, 263] Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. 3 The list seems endless.
And one recalls the appropriate reference to the "World Serious," attributed to Ring Lardner, Sr.; Ernest L. Thayer's "Casey at the Bat"; 4 the ring of "Tinker to [407 U.S. 258, 264] Evers to Chance"; 5 and all the other happenings, habits, and superstitions about and around baseball that made it the "national pastime" or, depending upon the point of view, "the great American tragedy." 6
Flood's St. Louis compensation for the years shown was:
But at the age of 31, in October 1969, Flood was traded to the Philadelphia Phillies of the National League in a multi-player transaction. He was not consulted about the trade. He was informed by telephone and received formal notice only after the deal had been consummated. In December he complained to the Commissioner of Baseball and asked that he be made a free agent and be placed at liberty to strike his own bargain with any other major league team. His request was denied.
Flood then instituted this antitrust suit 7 in January 1970 in federal court for the Southern District of New York. The defendants (although not all were named in each cause of action) were the Commissioner of Baseball, the presidents of the two major leagues, and the 24 major league clubs. In general, the complaint charged violations of the federal antitrust laws and civil rights statutes, violation of state statutes and the common law, and the imposition of a form of peonage and involuntary [407 U.S. 258, 266] servitude contrary to the Thirteenth Amendment and 42 U.S.C. 1994, 18 U.S.C. 1581, and 29 U.S.C. 102 and 103. Petitioner sought declaratory and injunctive relief and treble damages.
Flood declined to play for Philadelphia in 1970, despite a $100,000 salary offer, and he sat out the year. After the season was concluded, Philadelphia sold its rights to Flood to the Washington Senators. Washington and the petitioner were able to come to terms for 1971 at a salary of $110,000. 8 Flood started the season but, apparently because he was dissatisfied with his performance, he left the Washington club on April 27, early in the campaign. He has not played baseball since then.
Trial to the court took place in May and June 1970. An extensive record was developed. In an ensuing opinion, 316 F. Supp. 271 (SDNY 1970), Judge Cooper first noted that:
On appeal, the Second Circuit felt "compelled to affirm." 443 F.2d 264, 265 (1971). It regarded the issue of state law as one of first impression, but concluded that the Commerce Clause precluded its application. Judge Moore added a concurring opinion in which he predicted, with respect to the suggested overruling of Federal Baseball and Toolson, that "there is no likelihood that such an event will occur." 9 443 F.2d, at 268, 272. [407 U.S. 258, 269]
We granted certiorari in order to look once again at this troublesome and unusual situation. 404 U.S. 880 (1971).
Mr. Justice Holmes, in speaking succinctly for a unanimous Court, said:
B. Federal Baseball was cited a year later, and without disfavor, in another opinion by Mr. Justice Holmes for a unanimous Court. The complaint charged antitrust violations with respect to vaudeville bookings. It was held, however, that the claim was not frivolous and that the bill should not have been dismissed. Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 271 (1923). 11
It has also been cited, not unfavorably, with respect to the practice of law, United States v. South-Eastern [407 U.S. 258, 272] Underwriters Assn., 322 U.S. 533, 573 (1944) (Stone, C. J., dissenting); with respect to out-of-state contractors, United States v. Employing Plasterers Assn., 347 U.S. 186, 196 -197 (1954) (Minton, J., dissenting); and upon a general comparison reference, North American Co. v. SEC, 327 U.S. 686, 694 (1946).
In the years that followed, baseball continued to be subject to intermittent antitrust attack. The courts, however, rejected these challenges on the authority of Federal Baseball. In some cases stress was laid, although unsuccessfully, on new factors such as the development of radio and television with their substantial additional revenues to baseball. 12 For the most part, however, the Holmes opinion was generally and necessarily accepted as controlling authority. 13 And in the 1952 Report of the Subcommittee on Study of Monopoly Power of the House Committee on the Judiciary, H. R. Rep. No. 2002, 82d Cong., 2d Sess., 229, it was said, in conclusion:
It is of interest to note that in Toolson the petitioner had argued flatly that Federal Baseball "is wrong and must be overruled," Brief for Petitioner, No. 18, O. T. 1953, p. 19, and that Thomas Reed Powell, a constitutional scholar of no small stature, urged, as counsel for an amicus, that "baseball is a unique enterprise," Brief for Boston American League Base Ball Co. as Amicus Curiae 2, and that "unbridled competition as applied to baseball would not be in the public interest." Id., at 14.
D. United States v. Shubert, 348 U.S. 222 (1955), was a civil antitrust action against defendants engaged in the production of legitimate theatrical attractions throughout the United States and in operating theaters for the presentation of such attractions. The District Court had dismissed the complaint on the authority of Federal Baseball and Toolson. 120 F. Supp. 15 (SDNY 1953). This Court reversed. Mr. Chief Justice Warren noted the Court's broad conception of "trade or commerce" in the antitrust statutes and the types of enterprises already held to be within the reach of that phrase. [407 U.S. 258, 275] He stated that Federal Baseball and Toolson afforded no basis for a conclusion that businesses built around the performance of local exhibitions are exempt from the antitrust laws. 348 U.S., at 227 . He then went on to elucidate the holding in Toolson by meticulously spelling out the factors mentioned above:
Mr. Justice Frankfurter, joined by Mr. Justice Minton, dissented. "It would baffle the subtlest ingenuity," he said, "to find a single differentiating factor between other sporting exhibitions . . . and baseball insofar as the conduct of the sport is relevant to the criteria or considerations by which the Sherman Law becomes applicable to a `trade or commerce.'" 348 U.S., at 248 . He went on:
F. The parade marched on. Radovich v. National Football League, 352 U.S. 445 (1957), was a civil Clayton Act case testing the application of the antitrust laws to professional football. The District Court dismissed. The Ninth Circuit affirmed in part on the basis of Federal Baseball and Toolson. The court did not hesitate to "confess that the strength of the pull" of the baseball cases and of International Boxing "is about equal," but then observed that "[f]ootball is a team sport" and boxing an individual one. 231 F.2d 620, 622.
This Court reversed with an opinion by Mr. Justice Clark. He said that the Court made its ruling in Toolson "because it was concluded that more harm would be done in overruling Federal Baseball than in upholding a ruling which at best was of dubious validity." 352 U.S., at 450 . He noted that Congress had not acted. He then said:
G. Finally, in Haywood v. National Basketball Assn., 401 U.S. 1204 (1971), MR. JUSTICE DOUGLAS, in his capacity as Circuit Justice, reinstated a District Court's injunction pendente lite in favor of a professional basketball player and said, "Basketball . . . does not enjoy exemption from the antitrust laws." 401 U.S., at 1205 . 15
H. This series of decisions understandably spawned extensive commentary, 16 some of it mildly critical and [407 U.S. 258, 281] much of it not; nearly all of it looked to Congress for any remedy that might be deemed essential.
I. Legislative proposals have been numerous and persistent. Since Toolson more than 50 bills have been introduced in Congress relative to the applicability or nonapplicability of the antitrust laws to baseball. 17 A few of these passed one house or the other. Those that did would have expanded, not restricted, the reserve system's exemption to other professional league sports. And the Act of Sept. 30, 1961, Pub. L. 87-331, 75 Stat. 732, and the merger addition thereto effected by the Act of Nov. 8, 1966. Pub. L. 89-800, 6 (b), [407 U.S. 258, 282] 80 Stat. 1515, 15 U.S.C. 1291-1295, were also expansive rather than restrictive as to antitrust exemption. 18
In view of all this, it seems appropriate now to say that:
1. Professional baseball is a business and it is engaged in interstate commerce.
2. With its reserve system enjoying exemption from the federal antitrust laws, baseball is, in a very distinct sense, an exception and an anomaly. Federal Baseball and Toolson have become an aberration confined to baseball.
3. Even though others might regard this as "unrealistic, inconsistent, or illogical," see Radovich, 352 U.S., at 452 , the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases in this Court. It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court's expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball's unique characteristics and needs.
5. The advent of radio and television, with their consequent increased coverage and additional revenues, has not occasioned an overruling of Federal Baseball and Toolson.
6. The Court has emphasized that since 1922 baseball, with full and continuing congressional awareness, has been allowed to develop and to expand unhindered by federal legislative action. Remedial legislation has been introduced repeatedly in Congress but none has ever been enacted. The Court, accordingly, has concluded that Congress as yet has had no intention to subject baseball's reserve system to the reach of the antitrust statutes. This, obviously, has been deemed to be something other than mere congressional silence and passivity. Cf. Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 241 -242 (1970).
7. The Court has expressed concern about the confusion and the retroactivity problems that inevitably would result with a judicial overturning of Federal Baseball. It has voiced a preference that if any change is to be made, it come by legislative action that, by its nature, is only prospective in operation.
8. The Court noted in Radovich, 352 U.S., at 452 , that the slate with respect to baseball is not clean. Indeed, it has not been clean for half a century.
This emphasis and this concern are still with us. We continue to be loath, 50 years after Federal Baseball and almost two decades after Toolson, to overturn those cases judicially when Congress, by its positive inaction, [407 U.S. 258, 284] has allowed those decisions to stand for so long and, far beyond mere inference and implication, has clearly evinced a desire not to disapprove them legislatively.
Accordingly, we adhere once again to Federal Baseball and Toolson and to their application to professional baseball. We adhere also to International Boxing and Radovich and to their respective applications to professional boxing and professional football. If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court. If we were to act otherwise, we would be withdrawing from the conclusion as to congressional intent made in Toolson and from the concerns as to retrospectivity therein expressed. Under these circumstances, there is merit in consistency even though some might claim that beneath that consistency is a layer of inconsistency.
The petitioner's argument as to the application of state antitrust laws deserves a word. Judge Cooper rejected the state law claims because state antitrust regulation would conflict with federal policy and because national "uniformity [is required] in any regulation of baseball and its reserve system." 316 F. Supp., at 280. The Court of Appeals, in affirming, stated, "[A]s the burden on interstate commerce outweighs the states' interests in regulating baseball's reserve system, the Commerce Clause precludes the application here of state antitrust law." 443 F.2d, at 268. As applied to organized baseball, and in the light of this Court's observations and holdings in Federal Baseball, in Toolson, in Shubert, in International Boxing, and in Radovich, and despite baseball's allegedly inconsistent position taken in the past with respect to the application of state law, 21 [407 U.S. 258, 285] these statements adequately dispose of the state law claims.
The conclusion we have reached makes it unnecessary for us to consider the respondents' additional argument that the reserve system is a mandatory subject of collective bargaining and that federal labor policy therefore exempts the reserve system from the operation of federal antitrust laws. 22
We repeat for this case what was said in Toolson:
The judgment of the Court of Appeals is
MR. JUSTICE POWELL took no part in the consideration or decision of this case.
A. Rule 3 of the Major League Rules provides in part:
D. The Uniform Player's Contract provides in part:
[ Footnote 2 ] See generally The Baseball Encyclopedia (1969); L. Ritter, The Glory of Their Times (1966); 1 & 2 H. Seymour, Baseball (1960, 1971); 1 & 2 D. Voigt, American Baseball (1966, 1970).
[ Footnote 3 ] These are names only from earlier years. By mentioning some, one risks unintended omission of others equally celebrated.
[ Footnote 4 ] Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:
[ Footnote 5 ] "These are the saddest of possible words, `Tinker to Evers to chance.'
[ Footnote 6 ] George Bernard Shaw, The Sporting News, May 27, 1943, p. 15, col. 4.
[ Footnote 7 ] Concededly supported by the Major League Baseball Players Association, the players' collective-bargaining representative. Tr. of Oral Arg. 12.
[ Footnote 8 ] The parties agreed that Flood's participating in baseball in 1971 would be without prejudice to his case.
[ Footnote 9 ] "And properly so. Baseball's welfare and future should not be for politically insulated interpreters of technical antitrust statutes but rather should be for the voters through their elected representatives. If baseball is to be damaged by statutory regulation, let the congressman face his constituents the next November and also face the consequences of his baseball voting record." 443 F.2d, at 272.
Cf. Judge Friendly's comments in Salerno v. American League, 429 F.2d 1003, 1005 (CA2 1970), cert. denied, sub nom. Salerno v. Kuhn, 400 U.S. 1001 (1971):
[ Footnote 10 ] "What really saved baseball, legally at least, for the next half century was the protective canopy spread over it by the United States Supreme Court's decision in the Baltimore Federal League anti-trust suit against Organized Baseball in 1922. In it Justice Holmes, speaking for a unanimous court, ruled that the business of giving baseball exhibitions for profit was not `trade or commerce in the commonly-accepted use of those words' because `personal effort, not related to production, is not a subject of commerce'; nor was it interstate, because the movement of ball clubs across state lines was merely `incidental' to the business. It should be noted that, contrary to what many believe, Holmes did call baseball a business; time and again those who have not troubled to read the text of the decision have claimed incorrectly that the court said baseball was a sport and not a business." 2 H. Seymour, Baseball 420 (1971).
[ Footnote 11 ] On remand of the Hart case the trial court dismissed the complaint at the close of the evidence. The Second Circuit affirmed on the ground that the plaintiff's evidence failed to establish that the interstate transportation was more than incidental. 12 F.2d 341 (1926). This Court denied certiorari, 273 U.S. 703 (1926).
[ Footnote 12 ] Toolson v. New York Yankees, Inc., 101 F. Supp. 93 (SD Cal. 1951), aff'd, 200 F.2d 198 (CA9 1952); Kowalski v. Chandler, 202 F.2d 413 (CA6 1953). See Salerno v. American League, 429 F.2d 1003 (CA2 1970), cert, denied, sub nom. Salerno v. Kuhn, 400 U.S. 1001 (1971). But cf. Gardella v. Chandler, 172 F.2d 402 (CA2 1949) (this case, we are advised, was subsequently settled); Martin v. National League Baseball Club, 174 F.2d 917 (CA2 1949).
[ Footnote 13 ] Corbett v. Chandler, 202 F.2d 428 (Ca6 1953); Portland Baseball Club, Inc. v. Baltimore Baseball Club, Inc., 282 F.2d 680 (CA9 1960); Niemiec v. Seattle Rainier Baseball Club, Inc., 67 F. Supp. 705 (WD Wash. 1946). See State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N. W. 2d 1, cert. denied, 385 U.S. 990 (1966).
[ Footnote 14 ] The case's final chapter is International Boxing Club v. United States, 358 U.S. 242 (1959).
[ Footnote 15 ] See also Denver Rockets v. All-Pro Management, Inc., 325 F. Supp. 1049, 1060 (CD Cal. 1971); Washington Professional Basketball Corp. v. National Basketball Assn., 147 F. Supp. 154 (SDNY 1956).
[ Footnote 16 ] Neville, Baseball and the Antitrust Laws, 16 Fordham L. Rev. 208 (1947); Eckler, Baseball - Sport or Commerce?, 17 U. Chi. L. Rev. 56 (1949); Comment, Monopsony in Manpower: Organized Baseball Meets the Antitrust Laws, 62 Yale L. J. 576 (1953); P. Gregory, The Baseball Player, An Economic Study, c. 19 (1956); Note, The Super Bowl and the Sherman Act: Professional Team Sports and the Antitrust Laws, 81 Harv. L. Rev. 418 (1967); The Supreme Court, 1953 Term, 68 Harv. L. Rev. 105, 136-138 (1954); The Supreme Court, 1956 Term, 71 Harv. L. Rev. 94, 170-173 (1957); Note, 32 Va. L. Rev. 1164 (1946); Note, 24 Notre Dame Law. 372 (1949); Note, 53 Col. L. Rev. 242 (1953); Note, 22 U. Kan. City L. Rev. 173 (1954); Note, 25 Miss. L. J. 270 (1954); Note, 29 N. Y. U. L. Rev. 213 (1954); Note, 105 U. Pa. L. Rev. 110 (1956); Note, 32 Texas L. Rev. 890 (1954); Note, 35 B. U. L. Rev. 447 (1955); Note, 57 Col. L. Rev. 725 (1957); Note, 23 Geo. Wash. L. Rev. 606 (1955); Note, 1 How. L. J. 281 (1955); Note, 26 Miss. L. J. 271 (1955); Note, 9 Sw. L. J. 369 (1955); Note, 29 Temple L. Q. 103 (1955); Note, 29 Tul. L. Rev. 793 (1955); Note, 62 Dick. [407 U.S. 258, 281] L. Rev. 96 (1957); Note, 11 Sw. L. J. 516 (1957); Note, 36 N.C. L. Rev. 315 (1958); Note, 35 Fordham L. Rev. 350 (1966); Note, 8 B. C. Ind. & Com. L. Rev. 341 (1967); Note, 13 Wayne L. Rev. 417 (1967); Note, 2 Rutgers-Camden L. J. 302 (1970); Note, 8 San Diego L. Rev. 92 (1970); Note, 12 B. C. Ind. & Com. L. Rev. 737 (1971); Note, 12 Wm. & Mary L. Rev. 859 (1971).
[ Footnote 17 ] Hearings on H. R. 5307 et al. before the Antitrust Subcommittee of the House Committee on the Judiciary, 85th Cong., 1st Sess. (1957); Hearings on H. R. 10378 and S. 4070 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 85th Cong., 2d Sess. (1958); Hearings on H. R. 2370 et al. before the Antitrust Subcommittee of the House Committee on the Judiciary, 86th Cong., 1st Sess. (1959) (not printed); Hearings on S. 616 and S. 886 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 86th Cong., 1st Sess. (1959); Hearings on S. 3483 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 86th Cong., 2d Sess. (1960); Hearings on S. 2391 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 88th Cong., 2d Sess. (1964); S. Rep. No. 1303, 88th Cong., 2d Sess. (1964); Hearings on S. 950 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965); S. Rep. No. 462, 89th Cong., 1st Sess. (1965). Bills introduced in the 92d Cong., 1st Sess., and bearing on the subject are S. 2599, S. 2616, H. R. 2305, H. R. 11033, and H. R. 10825.
[ Footnote 18 ] Title 15 U.S.C. 1294 reads:
[ Footnote 19 ] Peto v. Madison Square Garden Corp., 1958 Trade Cases, § 69,106 (SDNY 1958).
[ Footnote 20 ] Deesen v. Professional Golfers' Assn., 358 F.2d 165 (CA9), cert. denied, 385 U.S. 846 (1966).
[ Footnote 21 ] See Brief for Respondent in Federal Baseball, No. 204, O. T. 1921, p. 67, and in Toolson, No. 18, O. T. 1953, p. 30. See also State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N. W. 2d 1, cert. denied, 385 U.S. 990 (1966).
[ Footnote 22 ] See Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1 (1971), suggesting present-day irrelevancy of the antitrust issue.
MR. CHIEF JUSTICE BURGER, concurring.
I concur in all but Part I of the Court's opinion but, like MR. JUSTICE DOUGLAS, I have grave reservations [407 U.S. 258, 286] as to the correctness of Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953); as he notes in his dissent, he joined that holding but has "lived to regret it." The error, if such it be, is one on which the affairs of a great many people have rested for a long time. Courts are not the forum in which this tangled web ought to be unsnarled. I agree with MR. JUSTICE DOUGLAS that congressional inaction is not a solid base, but the least undesirable course now is to let the matter rest with Congress; it is time the Congress acted to solve this problem.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN concurs, dissenting.
This Court's decision in Federal Baseball Club v. National League, 259 U.S. 200 , made in 1922, is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view 1 of a rather dismal business account over the last 50 years would keep that derelict in midstream.
In 1922 the Court had a narrow, parochial view of commerce. With the demise of the old landmarks of that era, particularly United States v. Knight Co., 156 U.S. 1 , Hammer v. Dagenhart, 247 U.S. 251 , and Paul v. Virginia, 8 Wall. 168, the whole concept of commerce has changed.
Under the modern decisions such as Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219 ; United States v. Darby, 312 U.S. 100 ; Wickard v. Filburn, 317 U.S. 111 ; United States v. South-Eastern Underwriters Assn., 322 U.S. 533 , the power of Congress was recognized as broad enough to reach all phases of the vast operations of our national industrial system. [407 U.S. 258, 287] An industry so dependent on radio and television as is baseball and gleaning vast interstate revenues (see H. R. Rep. No. 2002, 82d Cong., 2d Sess., 4, 5 (1952)) would be hard put today to say with the Court in the Federal Baseball Club case that baseball was only a local exhibition, not trade or commerce.
Baseball is today big business that is packaged with beer, with broadcasting, and with other industries. The beneficiaries of the Federal Baseball Club decision are not the Babe Ruths, Ty Cobbs, and Lou Gehrigs.
The owners, whose records many say reveal a proclivity for predatory practices, do not come to us with equities. The equities are with the victims of the reserve clause. I use the word "victims" in the Sherman Act sense, since a contract which forbids anyone to practice his calling is commonly called an unreasonable restraint of trade. 2 Gardella v. Chandler, 172 F.2d 402 (CA2). And see Haywood v. National Basketball Assn., 401 U.S. 1204 (DOUGLAS, J., in chambers).
If congressional inaction is our guide, we should rely upon the fact that Congress has refused to enact bills broadly exempting professional sports from antitrust regulation. 3 H. R. Rep. No. 2002, 82d Cong., 2d Sess. [407 U.S. 258, 288] (1952). The only statutory exemption granted by Congress to professional sports concerns broadcasting rights. 15 U.S.C. 1291-1295. I would not ascribe a broader exemption through inaction than Congress has seen fit to grant explicitly.
There can be no doubt "that were we considering the question of baseball for the first time upon a clean slate" 4 we would hold it to be subject to federal antitrust regulation. Radovich v. National Football League, 352 U.S. 445, 452 . The unbroken silence of Congress should not prevent us from correcting our own mistakes.
[ Footnote 1 ] While I joined the Court's opinion in Toolson v. New York Yankees, Inc., 346 U.S. 356 , I have lived to regret it; and I would now correct what I believe to be its fundamental error.
[ Footnote 2 ] Had this same group boycott occurred in another industry, Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 ; United States v. Shubert, 348 U.S. 222 ; or even in another sport, Haywood v. National Basketball Assn., 401 U.S. 1204 (DOUGLAS, J., in chambers); Radovich v. National Football League, 352 U.S. 445 ; United States v. International Boxing Club, 348 U.S. 236 ; we would have no difficulty in sustaining petitioner's claim.
[ Footnote 3 ] The Court's reliance upon congressional inaction disregards the wisdom of Helvering v. Hallock, 309 U.S. 106, 119 -121, where we said:
[ Footnote 4 ] This case gives us for the first time a full record showing the reserve clause in actual operation.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
Petitioner was a major league baseball player from 1956, when he signed a contract with the Cincinnati Reds, until 1969, when his 12-year career with the St. Louis Cardinals, which had obtained him from the Reds, ended and he was traded to the Philadelphia Phillies. He had no notice that the Cardinals were contemplating a trade, no opportunity to indicate the teams with which he would prefer playing, and no desire to go to Philadelphia. After receiving formal notification of the trade, petitioner wrote to the Commissioner of Baseball protesting that he was not [407 U.S. 258, 289] "a piece of property to be bought and sold irrespective of my wishes," 1 and urging that he had the right to consider offers from other teams than the Phillies. He requested that the Commissioner inform all of the major league teams that he was available for the 1970 season. His request was denied, and petitioner was informed that he had no choice but to play for Philadelphia or not to play at all.
To non-athletes it might appear that petitioner was virtually enslaved by the owners of major league baseball clubs who bartered among themselves for his services. But, athletes know that it was not servitude that bound petitioner to the club owners; it was the reserve system. The essence of that system is that a player is bound to the club with which he first signs a contract for the rest of his playing days. 2 He cannot escape from the club except by retiring, and he cannot prevent the club from assigning his contract to any other club.
Petitioner brought this action in the United States District Court for the Southern District of New York. He alleged, among other things, that the reserve system was an unreasonable restraint of trade in violation of [407 U.S. 258, 290] federal antitrust laws. 3 The District Court thought itself bound by prior decisions of this Court and found for the respondents after a full trial. 309 F. Supp. 793 (1970). The United States Court of Appeals for the Second Circuit affirmed. 443 F.2d 264 (1971). We granted certiorari on October 19, 1971, 404 U.S. 880 , in order to take a further look at the precedents relied upon by the lower courts.
This is a difficult case because we are torn between the principle of stare decisis and the knowledge that the decisions in Federal Baseball Club v. National League, 259 U.S. 200 (1922), and Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953), are totally at odds with more recent and better reasoned cases.
In Federal Baseball Club, a team in the Federal League brought an antitrust action against the National and American Leagues and others. In his opinion for a unanimous Court, Mr. Justice Holmes wrote that the business being considered was "giving exhibitions of base ball, which are purely state affairs." 259 U.S., at 208 . Hence, the Court held that baseball was not within the purview of the antitrust laws. Thirty-one years later, the Court reaffirmed this decision, without reexamining it, in Toolson, a one-paragraph per curiam opinion. Like this case, Toolson involved an attack on the reserve system. The Court said:
In his answer to petitioner's complaint, the Commissioner of Baseball "admits that under present concepts of interstate commerce defendants are engaged therein." App. 40. There can be no doubt that the admission is warranted by today's reality. Since baseball is interstate commerce, if we re-examine baseball's antitrust exemption, the Court's decisions in United States v. Shubert, 348 U.S. 222 (1955), United States v. International Boxing Club, 348 U.S. 236 (1955), and Radovich v. National Football League, 352 U.S. 445 (1957), require that we bring baseball within the coverage of the antitrust laws. See also, Haywood v. National Basketball Assn., 401 U.S. 1204 (DOUGLAS, J., in chambers).
We have only recently had occasion to comment that:
Has Congress acquiesced in our decisions in Federal Baseball Club and Toolson? I think not. Had the Court been consistent and treated all sports in the same way baseball was treated, Congress might have become concerned enough to take action. But, the Court was inconsistent, and baseball was isolated and distinguished from all other sports. In Toolson the Court refused to act because Congress had been silent. But the Court may have read too much into this legislative inaction.
Americans love baseball as they love all sports. Perhaps we become so enamored of athletics that we assume that they are foremost in the minds of legislators as well as fans. We must not forget, however, that there are only some 600 major league baseball players. Whatever muscle they might have been able to muster by combining forces with other athletes has been greatly impaired by the manner in which this Court has isolated them. It is this Court that has made them impotent, and this Court should correct its error.
We do not lightly overrule our prior constructions of federal statutes, but when our errors deny substantial federal rights, like the right to compete freely and effectively to the best of one's ability as guaranteed by the [407 U.S. 258, 293] antitrust laws, we must admit our error and correct it. We have done so before and we should do so again here. See, e. g., Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 241 (1970). 4
To the extent that there is concern over any reliance interests that club owners may assert, they can be satisfied by making our decision prospective only. Baseball should be covered by the antitrust laws beginning with this case and henceforth, unless Congress decides otherwise. 5
Accordingly, I would overrule Federal Baseball Club and Toolson and reverse the decision of the Court of Appeals. 6
This does not mean that petitioner would necessarily prevail, however. Lurking in the background is a hurdle of recent vintage that petitioner still must overcome. [407 U.S. 258, 294] In 1966, the Major League Players Association was formed. It is the collective-bargaining representative for all major league baseball players. Respondents argue that the reserve system is now part and parcel of the collective-bargaining agreement and that because it is a mandatory subject of bargaining, the federal labor statutes are applicable, not the federal antitrust laws. 7 The lower courts did not rule on this argument, having decided the case solely on the basis of the antitrust exemption.
This Court has faced the interrelationship between the antitrust laws and the labor laws before. The decisions make several things clear. First, "benefits to organized labor cannot be utilized as a cat's-paw to pull employer's chestnuts out of the antitrust fires." United States v. Women's Sportswear Manufacturers Assn., 336 U.S. 460, 464 (1949). See also Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797 (1945). Second, the very nature of a collective-bargaining agreement mandates that the parties be able to "restrain" trade to a greater degree than management could do unilaterally. United States v. Hutcheson, 312 U.S. 219 (1941); United Mine Workers v. Pennington, 381 U.S. 657 (1965); Amalgamated Meat Cutters v. Jewel Tea, 381 U.S. 676 (1965); cf., Teamsters Union v. Oliver, 358 U.S. 283 (1959). Finally, it is clear that some cases can be resolved only by examining the purposes and the competing interests of the labor and antitrust statutes and by striking a balance.
It is apparent that none of the prior cases is precisely in point. They involve union-management agreements that work to the detriment of management's competitors. In this case, petitioner urges that the reserve system works to the detriment of labor. [407 U.S. 258, 295]
While there was evidence at trial concerning the collective-bargaining relationship of the parties, the issues surrounding that relationship have not been fully explored. As one commentary has suggested, this case "has been litigated with the implications for the institution of collective bargaining only dimly perceived. The labor law issues have been in the corners of the case - the courts below, for example, did not reach them - moving in and out of the shadows like an uninvited guest at a party whom one can't decide either to embrace or expel." 8
It is true that in Radovich v. National Football League, supra, the Court rejected a claim that federal labor statutes governed the relationship between a professional athlete and the professional sport. But, an examination of the briefs and record in that case indicates that the issue was not squarely faced. The issue is once again before this Court without being clearly focused. It should, therefore, be the subject of further inquiry in the District Court.
There is a surface appeal to respondents' argument that petitioner's sole remedy lies in filing a claim with the National Labor Relations Board, but this argument is premised on the notion that management and labor have agreed to accept the reserve clause. This notion is contradicted, in part, by the record in this case. Petitioner suggests that the reserve system was thrust upon the players by the owners and that the recently formed players' union has not had time to modify or eradicate it. If this is true, the question arises as to whether there would then be any exemption from the antitrust laws in this case. Petitioner also suggests that there are limits [407 U.S. 258, 296] to the antitrust violations to which labor and management can agree. These limits should also be explored.
In light of these consideration, I would remand this case to the District Court for consideration of whether petitioner can state a claim under the antitrust laws despite the collective-bargaining agreement, and, if so, for a determination of whether there has been an antitrust violation in this case.
[ Footnote 1 ] Letter from Curt Flood to Bowie K. Kuhn, Dec. 24, 1969, App. 37.
[ Footnote 2 ] As MR. JUSTICE BLACKMUN points out, the reserve system is not novel. It has been employed since 1887. See Metropolitan Exhibition Co. v. Ewing, 42 F. 198, 202-204 (CC SDNY 1890). The club owners assert that it is necessary to preserve effective competition and to retain fan interest. The players do not agree and argue that the reserve system is overly restrictive. Before this lawsuit was instituted, the players refused to agree that the reserve system should be a part of the collective-bargaining contract. Instead, the owners and players agreed that the reserve system would temporarily remain in effect while they jointly investigated possible changes. Their activity along these lines has halted pending the outcome of this suit.
[ Footnote 3 ] Petitioner also alleged a violation of state antitrust laws, state civil rights laws, and of the common law, and claimed that he was forced into peonage and involuntary servitude in violation of the Thirteenth Amendment to the United States Constitution. Because I believe that federal antitrust laws govern baseball, I find that state law has been pre-empted in this area. Like the lower courts, I do not believe that there has been a violation of the Thirteenth Amendment.
[ Footnote 4 ] In the past this Court has not hesitated to change its view as to what constitutes interstate commerce. Compare United States v. Knight Co., 156 U.S. 1 (1895), with Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219 (1948), and United States v. Darby, 312 U.S. 100 (1941).
[ Footnote 5 ] We said recently that "[i]n rare cases, decisions construing federal statutes might be denied full retroactive effect, as for instance where this Court overrules its own construction of a statute . . . ." United States v. Estate of Donnelly, 397 U.S. 286, 295 (1970). Cf. Simpson v. Union Oil Co. of California, 377 U.S. 13, 25 (1964).
[ Footnote 6 ] The lower courts did not reach the question of whether, assuming the antitrust laws apply, they have been violated. This should be considered on remand.
[ Footnote 7 ] Cf. United States v. Hutcheson, 312 U.S. 219 (1941).