Who Exempted Baseball, Anyway?: The Curious Development of the Antitrust Exemption that Never Was
This article takes a fresh look at baseball’s alleged antitrust exemption and explains why, after all, the exemption is alleged rather than actual. For contrary to popular opinion, this article concludes that the Supreme Court’s 1922 Federal Baseball Club decision did not exempt Organized Baseball from federal antitrust laws. Instead, the opinion was much more limited in scope and never reached the question of whether Organized Baseball should be treated differently than other, similarly situated businesses or institutions, although Organized Baseball clearly invited the Justices to make this determination in its brief to the Court. As this article discusses, the Court’s silence on this question spoke volumes as to just what it was ruling on and, more importantly, what it was not. Regardless, the notion of an antitrust exemption arising out of the Federal Baseball opinion eventually took root and this article examines how and why this occurred. This article attempts to answer the following questions: where did the notion of the exemption come from? When did it arise in the consciousness of the nation’s popular and legal experts? When did it actually arise as a matter of legal doctrine? How and why did the popular notion of the game’s exemption take root? And how and why did the exemption finally become a legal reality as opposed to a popular theory? In order to answer these questions, this article bypasses the well-trod traditional mode of analysis with regard to this issue – the Supreme Court’s “baseball trilogy” (The 1922 Federal Baseball, 1953 Toolson, and 1972 Flood cases) – and instead tackles the issues from a different perspective: that of those who argued those three cases before the Supreme Court. Specifically, rather than simply analyzing the opinions themselves, this article examines the briefs filed by the parties which led to them. Through this process, the intent of the parties can be observed in light of the opinions that resulted from the Justices’ consideration of them. What did the litigants seek in their cases? What did they believe they were arguing for? How did they characterize the issues presented to the Court? By examining these briefs, and by comparing their arguments with the opinions that resulted, this article attempts to reach at least some preliminary conclusions with regard to what the Court was saying, as opposed to what most scholars have come to believe it to have said. Through this process, this article likewise attempts to discern the nature and extent of each ruling within the baseball trilogy. What emerges is an analysis of law and baseball that throws new light on the game’s alleged antitrust exemption.
Mitchell J. Nathanson. "Who Exempted Baseball, Anyway?: The Curious Development of the Antitrust Exemption that Never Was" Harvard Journal of Sports and Entertainment Law 4.1 (2013): 1-50.
Available at: http://works.bepress.com/mitchell_nathanson/29