Baseball’s Antitrust Exemption, Reliance Interests, and Roe
Just in time for Opening Day, I finished Stuart Banner’s new book, The Baseball Trust: A History of Baseball’s Antitrust Exemption. It’s a fun read and well-researched. Before Banner, the last major book discussing baseball’s antitrust exemption was Brad Snyder’s, A Well Paid Slave: Curt Flood’s Fight for Free Agency in Professional Sports, which focused on the dramatis personae of the Court’s 1972 decision upholding the exemption. Banner’s book is different; he focuses on the story of law, not of men.
Banner’s basic thesis – which I largely buy – is that the standard story of baseball’s antitrust exemption is wrong. The conventional narrative tells of the high court snookered by the nation’s game: Justices so blinded by love of baseball that they consistently balked, preserving the game’s unique antitrust exemption. Not so, argues Banner. Rather, the Court’s 1922 decision in Federal Baseball Club reflected the prevailing narrow conception of interstate commerce, which did not include sports. And the 1922 opinion bore not a whiff of sentimentality. In Banner’s words, baseball had “the fortuity . . . to get sued early.”
Banner casts the Court’s subsequent decisions (including the shift from constitutional to statutory grounds for the exemption in Toolson) as having “little to do with romanticisms about baseball.” Instead, because of the episodic nature of baseball’s antitrust litigation (after Federal Baseball it would be 30 years until Toolson reached the Court, and 20 years after that until Kuhn), the owners could point to decades of investments made in reliance on the antitrust exemption. And, Banner argues, a ruling that baseball was not exempt from antitrust laws could have subjected the owners to massive retrospective liability. Thus, the Court “acknowledged that baseball’s antitrust exemption rested on an outdated view of interstate commerce, but it held that any change in the law should come from Congress, because only Congress had the power to make a change with only prospective effect.”
Banner’s argument does have a significant weakness. As he points out, the Court has explicitly limited its holding to future cases in certain circumstance. Think of Miranda in the criminal context (previously convicted offenders stayed in prison), or Cipriaano v. City of Hourma, where the Court held that if “a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Yet, Banner argues, the baseball antritrust cases after 1922 are best understood as the Court’s deference to the owners’ reliance interest.
In reading Banner’s book, I was struck by the parallels between Justice Blackmun’s 1972 opinion upholding baseball’s antitrust exemption, Flood v. Kuhn, and another opinion he was working on that spring: Roe v. Wade. Banner draws an explicit link between Flood and Roe, writing that Flood likely provided Blackmun a “welcome respite from his troubles with the constitutional law of abortion” and a “chance to show himself to be an erudite person who deserved to be a Supreme Court justice.” (Blackmun’s Flood opinion, which starts with an idiosyncratic listing of great ballplayers, is also a matter of much controversy – although not nearly as much as Roe. It is, after all, about baseball).
But Flood and Roe are also linked on a deeper level. Banner’s central argument – that even if Federal Baseball and Toolson were wrongly decided, the Court nevertheless deferred to them because of substantial reliance interests – would be central to the Court’s later decision in Casey. In upholding Roe, the Casey Court emphasized that, “while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.” Such deference, the Casey opinion noted, more often “occurs in the commercial context.”
Thus, the baseball antitrust cases, rather than being a unique product of their time and place, fit into a larger narrative about the Court’s deference to reliance interests. There are, of course, critical differences: In Toolson, the Court shifted baseball’s exemption from constitutional to statutory grounds, allowing Congress to remove the exemption if it so chose. But the baseball antitrust cases – and their deference to reliance interests – aren’t quite as anomalous as they seem, even in Banner’s retelling.
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