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Flood v. Kuhn
Supreme Court of the United States
Argued March 20, 1972 Decided June 19, 1972
Full case name	Curt Flood v. Bowie Kuhn, et al.
Citations	407U.S.258 (more) 92 S. Ct. 2099; 32L. Ed. 2d 728; 1972U.S. LEXIS 138
Case history
Prior	Preliminary injunction denied, 309F. Supp.793 (S.D.N.Y. 1970); 316F. Supp.271 (S.D.N.Y. 1970); affirmed, 443F.2d264 (2d Cir. 1971);cert. granted,404 U.S. 880 (1971).
Holding
Professional baseball is in fact interstate commerce under theSherman Antitrust Act, but congressional acquiescence in previous jurisprudence to the contrary make it the legislative branch's responsibility to end or modify antitrust exemption unique among professional sports. Second Circuit affirmed.
Court membership
Chief Justice Warren E. Burger Associate Justices William O. Douglas · William J. Brennan Jr. Potter Stewart · Byron White Thurgood Marshall · Harry Blackmun Lewis F. Powell Jr. · William Rehnquist
Case opinions
Majority	Blackmun, joined by Stewart, Rehnquist (in full); Burger, White (all but part I)
Concurrence	Burger
Dissent	Douglas, joined by Brennan
Dissent	Marshall, joined by Brennan
Powell took no part in the consideration or decision of the case.
Laws applied
Sherman Antitrust Act,15 U.S.C. §§ 1291–1295

Flood v. Kuhn,407U.S. 258 (1972), was a decision by theSupreme Court of the United States that preserved thereserve clause inMajor League Baseball (MLB) players' contracts. By a 5–3 margin, the Court reaffirmed theantitrust exemption that had been granted toprofessional baseball in 1922 underFederal Baseball Club v. National League, and previously affirmed byToolson v. New York Yankees, Inc. in 1953. While themajority believed that baseball's antitrust exemption was anomalous compared to other professional sports, itheld that any changes to the exemption should be made throughCongress and not the courts.

TheNational League had instituted the reserve clause in 1879 as a means of limiting salaries by keeping players under team control. Under that system, a baseball team reserved players under contract for a year after the contract expired, preventing them from being taken by other teams in bidding wars. MLB team owners argued that the clause was necessary to ensure a competitive balance among teams, as otherwise wealthier clubs would outbid teams in smaller markets for star players. The reserve clause was not addressed inFederal Baseball, whereNed Hanlon, owner of the rivalFederal League's (FL)Baltimore Terrapins, had argued that MLB had violated theSherman Antitrust Act through anticompetitive practices meant to force the FL out of business. The Supreme Court ruled that baseball did not qualify as interstate commerce for the purposes of the Sherman Act, a ruling that remained even after it deniedboxing andAmerican football the same exemption.

In 1969,Curt Flood, acenter fielder for theSt. Louis Cardinals, was traded to thePhiladelphia Phillies. Flood was unhappy with the trade, as the Phillies were not known to treat players well, but the reserve clause required him to play for Philadelphia. He retained attorneyArthur Goldberg, a former Supreme Court justice, throughMarvin Miller and theMajor League Baseball Players Association (MLBPA) and took the case to court, arguing that the reserve clause was a collusive measure that reduced competition and thus an antitrust violation. The reserve system was upheld by all three courts under the principle ofstare decisis and the precedents set byFederal Baseball andToolson.

Legal scholars have criticized the Court's decision inFlood both for its rigid application ofstare decisis as well as Section I ofHarry Blackmun's majority opinion, an "ode to baseball" that contains little legal matter. The reserve clause was settled outside the Supreme Court three years later through thearbitration system created by thecollective bargaining agreement between MLB and the MLBPA.Peter Seitz ruled in favor ofAndy Messersmith andDave McNally that their contracts could only be renewed without their permission for one season, after which they becamefree agents. Free agency in MLB was codified the following year after the1976 Major League Baseball lockout, while the Curt Flood Act of 1998, signed byBill Clinton, ended baseball's antitrust exemption as it related to interactions between players and owners, but preserved it in other areas such as franchise relocation. Courts have continued to differ over the extent of the exemption; a 2021 suit filed over that year'sminor league reorganization asks that it be rescinded entirely.

William Hulbert, then the president of theNational League (NL), instituted the firstreserve clause inprofessional baseball in 1879.^[1] Under Hulbert's system, each NL team could "reserve" five players for its roster, and owners from opposing clubs could not offer contracts to reserved players.^[2] This provision extended to 11 players per team in 1883, 12 per team in 1885, 14 per team in 1887,^[3] and by 1890, all players under active contract with an NL team were subject to the reserve clause.^[4] Any player who signed with an NL team was placed under that team's control until they retired, were traded to another club, or were released outright.^[5] This latter qualification also made it easier for teams to discipline players by voiding their contracts, and it was sometimes referred to as the "reserveand release" clause.^[4] In 1883, theAmerican Association entered into the first national agreement with the NL, extending the reserve system to the Association as well.^[6] In 1903, theAmerican League (AL) signed its own national agreement, forming the two-league system known asMajor League Baseball (MLB). The reserve clause extended cross-league, with reserved NL players prevented from joining AL teams and vice versa.^[7]

The primary rationale for instituting the reserve clause was to limit player salaries for the struggling NL by keeping players under team control.^[3] Many of the players that the owners reserved for the 1880 season had been, at the time, the best-paid in the league, such asCap Anson,Paul Hines, andTommy Bond, and these players saw their salaries drop once they remained bound to their respective teams.^[8] Once the reserve system was extended to all players, those players were categorized into five categories under the Brush Classification System, with each group receiving a salary that ranged between $1,500 and $2,500 annually.^[9] While the league owners supported the reserve system as a cost-cutting measure, they also defended its use as a way to ensure a competitive balance in baseball. Without a reserve clause, the wealthiest teams could stockpile star players simply by outbidding smaller teams.^[10] This sentiment was echoed by federal district court judge William P. Wallace in 1890, who quotedAlbert Spalding in arguing that the rule "takes a manager by the throat and compels him to keep his hands off his neighbor's enterprise".^[11] The owners also argued that the reserve clause justified a team's investment in its players, who were drafted with little experience and required years of development to reach the major leagues.^[12]

One of the first players to challenge the reserve clause wasSam Wise, who in 1882 left theCincinnati Red Stockings of the American Association for the NL'sBoston Red Caps. TheMassachusetts General Court denied Cincinnati's request for aninjunction, and Wise spent the remainder of the season with Boston.^[13] The reserve clause's most vocal opponent, however, wasJohn Montgomery Ward, known as Monte Ward, who compared the system to slavery in 1885.^[14] In 1890, he helped to found thePlayers' League (PL), which promised a three-year contract to all players and no pay cuts after the first year.^[15] Players' salaries were the same as what the NL had paid them in either 1888 or 1889, whichever was higher.^[16] Players who had joined the PL, likeJim O'Rourke, were able to convince their colleagues that the reserve clause only prevented players from joining teams in those leagues that had it, and that they were legally free to join teams in new leagues.^[17]

When Ward left theNew York Giants to join the PL, the team took him toNew York Supreme Court^[a] to prevent him from playing with his new club.^[16] While JusticeMorgan J. O'Brien disagreed with Ward and O'Rourke's assessment that the reserve clause did not apply to the Players' League, the court was most concerned about the vague phrasing of the clause: Ward was technically under contract with the Giants for the 1890 season, but the perpetual reserve clause meant that major aspects of his contract, including his salary, were not addressed, and the court decided that the reserve clause was "too indefinite" to be properly enforced.^[16] The decision inMetropolitan Exhibition Co. v. Ward also criticized the uneven system by which a team could hold a player theoretically indefinitely but terminate them with only 10 days' notice.^[18][19] This legal victory was not enough to sustain the Players' League, as many of its financial backers pulled out after suffering considerable losses during that premiere season.^[20]

Hall of FamerNap Lajoie was taken to court in 1901 by thePhiladelphia Phillies, an NL team, after he joined their crosstown AL rival, thePhiladelphia Athletics,^[21] who were not yet bound by the reserve clause. TheSupreme Court of Pennsylvania ruled the next year inPhiladelphia Ball Club, Ltd. v. Lajoie^[22] that he possessed a unique skill set, much likeJohanna Wagner, the defendant in the seminal 1852English contract law decisionLumley v Wagner.^[23] This skill set meant that, while the Phillies could not require Lajoie to play for them, theycould prevent him from playing for other teams.^[24]

TheUnited States Congress had enacted theSherman Antitrust Act which prohibited the type of anticompetitive collusion under which the reserve clause has been argued to fall, in 1890.^[11] This policy was extended even further by theClayton Antitrust Act of 1914, which allowed private parties to sue for damages caused by anticompetitive conduct.^[25] The same year that the Clayton Act became law, theFederal League (FL) was created as a challenger to MLB.^[26] Despite the new league prohibiting players from signing if they were under contract with a major league team and MLB threatening to blacklist players who defected, players such asJoe Tinker nonetheless left MLB to join the FL, and many of these defections led to litigation. While the lower courts typically ruled in favor of players who joined the Federal League during the offseason, when they were under reserve but not an active contract, the owners did win some cases where players had abandoned their MLB team midseason.^[27]

Dave Fultz, the president of the FL,^[28] was primarily focused on improving the working conditions of minor league players and improving player safety. He was not radically against the reserve system, and he feared that eliminating it from his league would incur retribution from MLB. Instead, he proposed that FL players remained under reserve for five years, after which owners and players could mutually agree to extend the reserve option.^[29]

In January 1915, the Federal League owners sued the major leagues and three members of the National Commission for antitrust violations, hoping that noted trustbusterKenesaw Mountain Landis would rule in their favor. Landis, however, announced that "any blows at the thing called baseball would be regarded by this court as a blow to a national institution", and he took the case under advisement for a year to stall any action.^[30] Meanwhile, the FL incurred great financial losses that season, and came to a settlement with MLB at the end of the year.^[30]

Most FL owners were bought out by MLB teams or allowed to buy interests in existing major league clubs. The one exception wasNed Hanlon of theBaltimore Terrapins. Hanlon and his partners brought an antitrust lawsuit inD.C. District Court, alleging that MLB had colluded to "wreck and destroy" the FL by purchasing and dissolving its teams.^[31][32] JudgeWendell Phillips Stafford ruled in Hanlon's favor, agreeing that baseball games constituted interstate trade and commerce under the Sherman Act and that MLB had engaged in impermissibly monopolistic behavior. Hanlon was awarded $80,000 in damages, which was increased to $240,000 ($7.46 million in modern dollars^[33]) under the treble-damages provision of the Clayton Act.^[34]

On appeal, JudgeGeorge W. Pepper of theD.C. Circuitheld that sports like baseball, "a spontaneous product of human activity", were "not in [their] nature commerce", and thus not subject to antitrust legislation.^[35] The circuit's chief judge,Constantine Joseph Smyth, wrote in his opinion that "sport" such as professional baseball fell outside the realm of business and thus monopoly.^[34] Hanlon then brought his claim to theSupreme Court, where formerUS president and baseball fanWilliam Howard Taft wasChief Justice.^[35]

In May 1922, the Court unanimously affirmed the appellate decision inFederal Baseball Club v. National League.^[35] The Sherman Act required that businesses be engaged in interstate commerce to incur government intervention,^[36] and JusticeOliver Wendell Holmes Jr. interpreted commerce to include only physical goods. Because baseball exhibitions did not fall under this definition, the sport consisted of "purely state affairs".^[37][38][b]

The next term the Court consideredHart v. B.F. Keith Vaudeville Exchange, a Clayton Act suit brought by a talent agent alleging the defendants had conspired to exclude the plaintiffs' clients from the many theaters they controlled in order to extract large payments to them, arguing that since their productions depended on the interstate transport of sets and costumes, thevaudeville circuit was interestate commerce. It had been filed beforeFederal Baseball; afterwards, the defendants had argued that their industry, too, was similarly not interstate commerce since its main business activity was selling admission to performances it had arranged rather than transport of goods for sale, with the shipments of materials required for those productions merely an incident to their business, just as with baseball teams' travel. TheSouthern District of New York agreed and dismissed the case. Justice Holmes wrote for a unanimous Court that reversed the trial court on jurisdictional grounds, holding that afederal question existed over whether the vaudeville circuit was interstate commerce, and that until that question was resolved the case was not to be disposed even if the arguments for federal jurisdiction themselves seemed weak. "[I]t may be that what in general is incidental, in some instances may rise to a magnitude that requires it to be considered independently", Holmes wrote.^[41]

The case that came closest to overturning the reserve system and antitrust exemption was brought byDanny Gardella, who left theNew York Giants in 1946 to play for theAzules de Veracruz of theMexican League.^[42] He returned to New York in 1947 to play in MLB again but found himself blacklisted.^[43] Gardella's attorney Frederic Johnson tried to distinguish his client fromNap Lajoie by arguing his client was not an exceptional player or "unique performer", but a standard-quality professional athlete being denied an opportunity to make a living.^[44]

JudgeHenry W. Goddard of theSouthern District of New York^[c] ruled in favor of the owners, dismissing Gardella's lawsuit under the precedent set byFederal Baseball,^[43][45] TheUnited States Court of Appeals for the Second Circuit overturned this decision, however, withJerome Frank ruling that baseball's television and radio presence made it a matter of interstate commerce that thus fell under the Sherman Act.^[46] The case never reached the Supreme Court, asHappy Chandler, then theCommissioner of Baseball, soon reinstated the blacklisted Mexican League players. Gardella settled out of court for $60,000 in damages and a trade to theSt. Louis Cardinals.^[47]

With Gardella's case settled, there was little pressure on the league to alter the reserve system or any other anticompetitive measures.^[48] Some members of Congress, however, were worried about the potential challenge to baseball's antitrust exemption, as well as the instability to the sport caused when Chandler was replaced byFord Frick.^[49] In 1951, four bills were introduced to Congress that would have further codified the antitrust laws concerning baseball.^[50][d]

Congress ultimately took no action on the antitrust exemption, as the House Subcommittee on the Study of Monopoly Power decided that enacting official legislation would affect the Supreme Court's decision on another case that had come its way,Toolson v. New York Yankees, Inc.^[54] George Toolson, a minor league player in the Yankees'farm system, had been reassigned from theNewark Bears, theirTriple-A affiliate, to theLow-ABinghamton Triplets in 1949.^[55] He refused to report to the new club and brought the reserve clause to court as an antitrust violation.^[56] In a 7–2 ruling, the Court upheld theFederal Baseball precedent that the "business of giving exhibitions" was "purely state affairs" and thus exempt from the antitrust protections built into the Sherman Act.^[57] The one-paragraphper curiammajority opinion inToolson^[58] held that any changes to theFederal Baseball precedent would have to go through Congress and not the courts.^[59][50] JusticeHarold Hitz Burtondissented, arguing that organized baseball was obviously engaged in interstate trade and commerce and thus should be subject to federal antitrust enforcement.^[60][61]

The Court did not revisit baseball's antitrust exemption, although other lower courts would. In the years afterToolson, three other antitrust cases involving other industries, including other professional sports, made baseball's exemption problematic when the Court declined to extend the logic ofFederal Baseball to them.

Early in 1955, two cases decided the same day involved federal Sherman Act cases against companies alleged to have nearly monopolized theatrical performances andprofessional boxing. Both defendants had argued that theFederal Baseball precedent applied to them as well since the interstate travel required to stage performances and fights was equally incidental to those events, and judges in the Southern District of New York hearing the cases granted defense motions to dismiss. The government appealed directly to the Supreme Court under theExpediting Act.^[62][63]

In both cases, the Court allowed the cases to proceed. The theater case,United States v. Shuster, was decided unanimously. After citing many precedents which had held industries which did not ship goods for sale across state lines to be interstate commerce,Chief JusticeEarl Warren wrote thatFederal Baseball andToolson applied only to baseball and thusHartcontrolled in the instant case: "[It] established, contrary to the defendants' argument here, thatFederal Baseball did not automatically immunize the theatrical business from the antitrust laws." Any holding that it did required a trial on that question. Justices Burton and Reed referred to theirToolson dissents in statements indicating their concurrence with Warren's opinion.^[64]

The two would also join Warren's majority opinion inUnited States v. International Boxing Club of New York, Inc., where he conceded that "if it were not forFederal Baseball andToolson, we think that it would be too clear for dispute that the Government's allegations bring the defendants within the scope of the Act." Again he deferred to Congress to resolve the issue if it desired.^[65] JusticesFelix Frankfurter andSherman Minton dissented this time, with Minton also joining Frankfurter's dissent.^[66]

"It would baffle the subtlest ingenuity to find a single differentiating factor between other sporting exhibitions, whether boxing or football or tennis, 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'", Frankfurter wrote. "It can hardly be that this Court gave a preferred position to baseball because it is the great American sport. I do not suppose that the Court would treat the national anthem differently from other songs if the nature of a song became relevant to adjudication."^[66]

Minton, conversely, believed that the Court should have held boxing equally beyond the reach of antitrust law. Accusing the majority of having misreadToolson, he wrote:^[66]

When boxers travel from State to State, carrying their shorts and fancy dressing robes in a ditty bag in order to participate in a boxing bout, which is wholly intrastate, it is now held by this Court that the boxing bout becomes interstate commerce. What this Court held in theFederal Baseball case to be incident to the exhibition now becomes more important than the exhibition. This is as fine an example of the tail wagging the dog as can be conjured up.

Two years later, the Court heardRadovich v. National Football League (NFL), in which another player, like Gardella, who believed himself to have been blacklisted from the major league in his sport due to his decision to play in a team in the competingAll-America Football Conference (AAFC), had brought suit. TheNFL asserted at trial that baseball's antitrust exemption applied equally to it, and the district judge dismissed the case on those grounds.^[e] At appeal, Radovich argued thatInternational Boxing had held otherwise, but theNinth Circuit distinguished boxing by noting that football, like baseball, was a team sport where "very good arguments do exist for the indulgence of restraints on individual players."^[69]

The Court reversed. After reiteratingShuster's holding thatToolson was limited to baseball and did not automatically extend to any other business despite any apparent similarities, JusticeTom C. Clark wrote for a majority of six that "the volume of interstate business involved in organized professional football places it within the provisions of the Act". He admitted that "were we considering the question of baseball for the first time upon a clean slate, we would have no doubts."^[70]

Frankfurter again dissented. "[T]he most conscientious probing of the text and the interstices of the Sherman Law fails to disclose that Congress, whose will we are enforcing, excluded baseball—the conditions under which that sport is carried on—from the scope of the Sherman Law, but included football", he wrote.^[71] Newer justicesJohn Marshall Harlan II andWilliam J. Brennan Jr., who had replaced Minton, also dissented. "What was foreshadowed byInternational Boxing has now come to pass", Harlan lamented. "The Court, in holding that professional football is subject to the antitrust laws, now says in effect that professional baseball issui generis so far as those laws are concerned."^[72]

Within a decade, a case would be brought alleging MLB came understate antitrust laws whenWisconsin sought to block theBraves' move from Milwaukee to Atlanta. The state alleged that baseball had exercised its monopoly power in an unreasonable way that had a substantially negative effect on business within the state, and sought to either have the move prevented or an expansion team be located in Milwaukee. A lower court agreed, and granted an injunction that delayed the Braves' move until their appeal, arguing thatfederal preemption and theDormant Commerce Clause put baseball out of reach of Wisconsin's antitrust laws, could be heard by thestate's Supreme Court.^[73]

A narrowly divided court lifted the injunction. After reviewing the Supreme Court's precedents at length, JusticeThomas E. Fairchild wrote for the four-justice majority that while baseball's antitrust exemption might not cover all the businesses a baseball team could and did engage in, "it does seem clear that the exemption at least covers the agreements and rules which provide for the structure of the organization and the decisions which are necessary steps in maintaining it." Since Congress had not explicitly barred the states from regulating baseball, "the ultimate question is whether the state action conflicts with national policy", Fairchild concluded, noting that either preventing the Braves' move or requiring MLB to locate an expansion team in Wisconsin would have nationwide implications, particularly if other states similarly brought their laws to bear.^[74]

The majority, Fairchild said, either found it "unrealistic to interpret these decisions of the supreme court of the United States plus the silence of Congress as creating a mere vacuum in national policy, leaving the states free to regulate the membership of the baseball leagues" or followedToolson in deferring to the reliance interests the federal antitrust exemption had established and Congress's sole power to change that. It did, however, note in its conclusion that "[t]he record strongly suggests that the defendants gave little heed to the interests of the Milwaukee community, and to the injury which the move would cause", expressing a wish for Congress to deal with the issue.^[74]

JusticeNathan Heffernan, writing for the three dissenters, castigated the majority for ignoring well-established Supreme Court precedent that Congressional inaction is never to be taken as proscribing state action without an express provision to that effect.^[f] "Can we conclude that congressional silence amounts to a manifestation that it is the national policy and the congressional will that baseball be free of all regulation? We think not", he wrote. "The most that possibly can be concluded from the failure of Congress to enact some regulation of baseball is that it reveals a congressional complacency with its own policy of nonaction and inertia." The majority had similarly disregarded a recent reiteration of an older admonition from the Supreme Court not to infer federal intent to pre-empt the states merely from congressional inaction, Heffernan added.^[75][g]

To the dissenters, the other majority theory, that the reliance interests nationally precluded any exercise of state authority, was at odds with another Supreme Court precedent,California v. Thompson.^[76] Recalling "the cavalier disregard of either law or reasonableness in the exercise of the baseball monopoly"^[h] that the majority had itself taken note of, "[w]e cannot conclude that the state is less able to resist this treatment of its legitimate interests by organized baseball than it is to prevent the entrance into its boundaries of contagious disease, although such disease is carried in interstate commerce",^[78] Heffernan wrote. "It is difficult to see what national interest is preserved by immunizing this organization from the consequences of its violation of state law."^[77]

In 1970, the Second Circuit affirmed the dismissal ofSalerno v. American League, a case brought by two umpires who contended that their terminations for incompetence actually resulted from their attempts toorganize their colleagues, held that their antitrust claims were largely irrelevant to a case they had failed to make even if baseball were not exempt. But on that matter, JudgeHenry Friendly wrote for the court, "[t]he ground upon whichToolson rested was that Congress had no intention to bring baseball within the antitrust laws, not that baseball's activities did not sufficiently affect interstate commerce. We freely acknowledge our belief thatFederal Baseball was not one of Mr. Justice Holmes' happiest days, that the rationale ofToolson is extremely dubious and that, to use the Supreme Court's own adjectives, the distinction between baseball and other professional sports is 'unrealistic,' 'inconsistent' and 'illogical'". But it remained the Supreme Court's prerogative to overrule those cases, and "[w]hile we should not fall out of our chairs with surprise at the news that [they have] been overruled, we are not at all certain the Court is ready to give them a happy despatch."^[79]

Afterleading the U.S. team to a gold medal at the 1968 Olympics, 19-year-oldSpencer Haywood sought to play professionally but was stymied by aNational Basketball Association (NBA) rule that players were not eligible to bedrafted until four years after their high school class had graduated. He chose to instead play for the rivalAmerican Basketball Association's (ABA)Denver Rockets for two seasons, then attempted to switch to the NBA with theSeattle SuperSonics for the1970–71 season when he was dissatisfied with the Rockets' latest salary offer. The league fined Sonics ownerSam Schulman; individual teams formally protested the result of every game Haywood played in regardless of the outcome. Haywood filed suit, seeking an injunction against the NBA on the grounds that its actions were agroup boycott illegal under antitrust law.^[80]

The case came before Justice Douglas for an expedited appeal after the Ninth Circuitstayed the injunctionpendente lite Haywood had won in theCentral District of California, in order to allow him to take the floor for the Sonics in the impending playoffs. "The college player draft binds the player to the team selected", Douglas conceded. "Basketball, however, does not enjoy exemption from the antitrust laws. Thus, the decision in this suit would be similar to the one on baseball's reserve clause which our decisions exempting baseball from the antitrust laws have foreclosed." He said the group boycott issue was "significant" in professional sports.^[81]

The full Court,en banc, declined to reverse Douglas. Onremand, District JudgeWarren J. Ferguson took note and held the NBA subject to the Sherman Act. "[B]y pooling their economic power, the individual members of the NBA have, in effect, established their own private government", he wrote, permanently enjoining the league from enforcing the four-year rule and sanctions against Haywood, Schulman and the Sonics.^[82]

Charles Curtis Flood was born on January 18, 1938, inHouston, Texas, the youngest of Laura and Herman Flood's six children. The family moved toOakland, California, two years later in search of the naval jobs that had been created by the United States's pending entry intoWorld War II.^[83] Flood began playing baseball around the age of seven or eight, and he joined his first organized team in 1947,catching for Junior's Sweet Shop.^[84] In addition to playingAmerican Legion Baseball, Flood attendedMcClymonds High School with future MLB playerFrank Robinson, who was two years his senior. Throughout his adolescence, Flood transitioned from catcher toshortstop and finallycenter fielder.^[85] Outside of baseball, his primary passion was in the visual arts, inspired by his high school art teacher Jim Chambers.^[86] Flood knew that he wanted a career in either art or baseball, but he had been warned by coach George Powles that his diminutive size and his race would impede his progression in professional baseball.^[87]

On January 30, 1956, three days after graduating from high school,Bobby Mattick, ascout for the Cincinnati Reds, offered Flood a $4,000 contract to join the team.^[88] Flood was assigned to the minor leagueHigh Point-Thomasville Hi-Toms, where he encounteredsegregation and racist chants from the fans.^[89] He was successful on the field, however,batting .340 with 29home runs and 128runs scored, and he was promoted to the Reds as aSeptember call-up.^[90] Flood made his major league debut on September 9,pinch running forSmoky Burgess in a 6–5 loss to the St. Louis Cardinals.^[91]

Once the season ended, Flood met with Redsgeneral managerGabe Paul, who explained that while the team had been impressed by Flood's performance, they were not in a financial position to increase his salary, which would stay at $4,000 ($45,000 in modern dollars^[33]) again for the 1957 season.^[92] Flood realized after this meeting the gravity of the reserve system, later saying, "I could only play where they elected to send me. This was baseball law. It was beyond question or dispute. It was taken entirely for granted."^[93] The Reds assigned Flood to theDominican Winter League to teach himthird base, which they hoped he would play in the future. When he returned, he was assigned to theSavannah Reds of theSouth Atlantic League.^[94] Flood's batting average fell significantly in Savannah, which Paul used as a reason not to raise his salary for the 1958 season. Paul also informed Flood that he would have to report to theVenezuelan Winter League and learn how to playsecond base.^[95]

On December 5, 1957,^[96] the Reds traded Flood andJoe Taylor to the St. Louis Cardinals in exchange forMarty Kutyna,Ted Wieand, andWillard Schmidt,^[97] a trade which came with a 25 percent raise.^[98] The Cardinals' owner,Gussie Busch, was motivated to acquire more black baseball players to increase the team's local popularity, and he had failed to acquireWillie Mays andErnie Banks.^[99] Flood spent three weeks in the Cardinals' farm system before debuting with his new team on May 2, 1958, where he faced the team that traded him.^[100] He did not become an everyday player in St. Louis until midway through the 1961 season, when managerSolly Hemus was fired and replaced byJohnny Keane.^[101]

From 1965 to 1967, Flood had a reputation as an all-star defensive center fielder, setting an MLB record for playing 226 consecutive games without making anerror in 555 chances.^[102] Flood's salary increased throughout this period as well: he made $45,000 in 1966, significantly more than the average MLB player's $13,000 salary.^[103] After making $50,000 in 1967, Flood came to offseason negotiations demanding that his salary be doubled for 1968. When general managerBing Devine refused, Flood threatened to retire from baseball entirely, and the two parties settled on a $72,000 salary.^[104] That season, Flood appeared on the cover ofSports Illustrated, where he was deemed the best center fielder in baseball.^[97]

The Cardinals faced theDetroit Tigers in the1968 World Series. The matchup was fairly even, and both teams remained scoreless through the first six innings of Game 7. BothNorm Cash andWillie Hortonsingled for the Tigers in the seventh inning, leaving Cash inscoring position. Next up to bat,Jim Northrup hit a longfly ball to center field. Flood slipped on the wet outfield turf, his stumble causing the ball to miss his glove and roll towards the outfield wall. That error allowed both Cash and Horton to score, putting the Tigers up 2–0. Flood apologized to pitcherBob Gibson after the inning, but Gibson insisted, "It was nobody's fault."^[105] The Tigers won the game 4–1, defeating the Cardinals and becoming World Series champions.^[106]

During offseason contract negotiations, Flood rejected the Cardinals' proposed salary of $77,500 ($665,000 in modern dollars^[33]) for the 1969 season. He insisted on $90,000, telling Busch that number "is not $77,500 and is not $89,999".^[107] Although he acquiesced, Busch was upset that the negotiations had turned sour at all, as he believed he had a good relationship with Flood.^[108] Busch was the first to ask Keane to give Flood a regular playing opportunity in the outfield, he had provided Flood's family with financial assistance, and Flood had once painted Busch's portrait.^[109]

Overall, the team's relationships with each other and with management suffered in 1969. The on-field camaraderie that Flood had previously praised seemed to have diminished,^[110] while the players were unhappy with Busch after he accused them of being greedy for boycottingspring training in the name of higher wages.^[111] Also during spring training, Flood had suffered an injury during anexhibition game against theNew York Mets, and the sedatives he was provided by a team doctor caused him to sleep through the Cardinals' annual season ticketholder banquet. Flood was fined $250 for missing the banquet, at which point he began to publicly criticize the Cardinals' front office to local news media.^[112] On the field, MLB had made several changes that were meant to increase hitting, including lowering thepitcher's mound and expanding thestrike zone. While Flood batted .285 for the year, he was no longer one of the top 50 hitters in the league.^[110]

Early one morning in October 1969, a sportswriter notified Flood that he,Tim McCarver,Joe Hoerner, andByron Browne had been traded to the Philadelphia Phillies in exchange forDick Allen,Cookie Rojas, andJerry Johnson.^[113] Shortly afterwards, he received the official phone call from Jim Toomey,^[113] an executive for the Cardinals that he later referred to as "a middle-echelon coffee drinker in the front office".^[114][115] After hanging up the phone, Flood began to cry, and he spent the remainder of the day waiting for another call with more information.^[116]

The next day, Flood, who had been preparing for a vacation inCopenhagen, received a one-sentence letter from Devine saying that he had been traded outright to the Phillies.^[117] Flood responded by announcing his retirement from baseball and embarking on his previously scheduled vacation.^[115] Devine did not immediately believe Flood, who had previously threatened to retire in order to improve his own salary.^[118]

After returning from Copenhagen, Flood scheduled a meeting with Phillies general managerJohn Quinn, who attempted to convince him that the team was better than its reputation.^[119] At the time, the Phillies were known for their lackluster treatment of their players, sending them onred-eye commercial propeller flights where other teams would charter private jets for away games.^[120] Flood was particularly concerned about Philadelphia's reputation for mistreating its black players, as Allen had been vocal about the racism he experienced from management, fans, and the press during his time with the Phillies.^[118] Flood was not active in theBlack Power movement, but he was sympathetic to the cause,^[121] and he remained sensitive to the racism and segregation that he had experienced earlier in his baseball career.^[122]

After his meeting with Quinn, Flood contacted Allan H. Zerman, the attorney who had helped him set up his photography business in St. Louis, to ask for advice.^[123] Zerman suggested that Flood sue, and so he contactedMarvin Miller, the executive director of theMajor League Baseball Players Association (MLBPA).^[124] In their first meeting, Miller explained to Flood and Zerman thatFederal Baseball andToolson had created a precedent that would make it difficult to eliminate the reserve clause, but that Gardella's case had given them an opening.^[125] While Miller warned Flood that he would inevitably lose the court decision and his baseball career, he also provided Flood with attorneyArthur Goldberg, a former U.S. Supreme Court justice.^[126] Miller and Goldberg had known each other from their time in theUnited Steelworkers labor union,^[127] and Goldberg had written the majority opinion on several Supreme Court cases relating to antitrust, which Miller believed would help Flood's case.^[128]

In December 1969, the MLBPA questioned Flood for two hours at its annual meeting inSan Juan, Puerto Rico. Some team representatives, includingLos Angeles Dodgers catcherTom Haller, asked if Flood's case was primarily a race issue, to which Flood responded that his concerns about race were secondary to his belief that there should be a free market of players.^[129] Other players worried that Flood was only threatening legal action as a ploy to increase his salary with the Phillies.^[127] He assured the union that he was singularly opposed to the reserve clause, promised that he would not drop the case no matter what pressure he received from the owners, and offered to donate any damages he might be awarded to the union.^[130] All 25 representatives voted to provide Flood with the funds needed to mount his lawsuit.^[126] Despite the unanimous vote,Carl Yastrzemski sent a letter to Miller complaining that his voice had not been heard and fearing legal action would irreparably harm the relationship between owners and players.^[131]

The day afterwards, baseball commissionerBowie Kuhn met with the players, an opportunity he had asked Miller for. He recalled years later that he was surprised none of them brought up the reserve issue, and only later when he learned of the lawsuit did he surmise (correctly) that Miller had told the players not to bring it up with him as it was "too sensitive". This course of action led Kuhn to believe that Miller had already committed to litigating the issue. Kuhn believed the MLBPA had had its chance at contract negotiations two years earlier and should wait until the next contract to try again rather than get free agency through the courts, which he believed alienated the owners.^[132][i]

During this time,Paul A. Porter, one of MLB's top lawyers, met with the Players Association and denied any amendments to the reserve clause. WhenJim Bouton asked the league's attorneys if they would consider terminating a player's reservation upon their 65th birthday, long after the player would have retired, Louis Carroll replied, "No, next thing you'll be asking for is a fifty-five limit."^[133] Meanwhile, in a final effort to avoid legal action, Flood sent a letter to Kuhn on December 24 petitioning the commissioner to let him become afree agent. Kuhn responded that his contract remained under Philadelphia's control and could not be changed.^[14][j]

Shortly after the New Year, Flood appeared onWide World of Sports for an interview with newscasterHoward Cosell.^[134] Cosell asked Flood, "What's wrong with a guy making $90,000 being traded from one team to another? Those aren't exactly slave wages", to which Flood replied, "A well-paid slave is nonetheless a slave."^[135]

Flood filed a complaint in federal district court forthe Southern District of New York in January 1970. He named Kuhn, the presidents of the NL and AL, and all 24 MLB team presidents as defendants. While Flood did not seriously believe he would be awarded the $1 million in damages that he requested, he was more concerned with having the reserve clause struck down.^[136] The following day,Joe Cronin andChub Feeney, the presidents of the AL and NL, respectively, issued a statement reiterating that the clause was "absolutely necessary", and that without it, "professional baseball would simply cease to exist".^[137] Three of the five causes of action in Flood's suit related directly to the reserve system as an antitrust violation. The fourth suggested that the system was a violation of theThirteenth Amendment, as it "subjects plaintiff to peonage and involuntary servitude".^[138] The final cause of action suggested that the Cardinals and Yankees were engaged in additional antitrust violations unrelated to the reserve clause. The Cardinals, owned byAnheuser-Busch, sold only that brewery's products atBusch Stadium, while the Yankees, owned byCBS, only broadcast their games on that network.^[139]

At the first hearing, held before JudgeDudley Baldwin Bonsal, the owners were granted an additional two weeks to prepare their reply.^[140] Flood sought a preliminary injunction at a February hearing, which JudgeIrving Ben Cooper rejected a month later.^[141][142] The injunction was the only recourse Flood's attorneys had to block his trade to Philadelphia, making him either a free agent or reverting his rights back to the Cardinals,^[143] and so in April, the Phillies placed Flood on the restricted list for failure to report.^[141] Flood's attorneys chose not to appeal Cooper's ruling on the injunction, not wanting to delay the trial further.^[144]

Flood's federal bench trial began in May.^[145] Shortly beforehand, he received a call fromMonte Irvin telling him that Kuhn was willing to give Flood a limited free agency where he would be allowed to negotiate a contract with any NL team. Flood rejected the offer, realizing that to accept it would damage his legal argument.^[146] Goldberg, meanwhile, had announced his candidacy forGovernor of New York earlier that year, and his campaign afforded him little time to prepare for the trial.^[141]

Flood was the first to testify. He was nervous on the witness stand and struggled to recall his salaries and playing statistics from previous years, often using his ownbaseball card, provided by attorney Jay Tompkins, as a reference.^[145] Flood said that he wanted to continue playing in St. Louis, where his photography and portrait businesses were located, but fundamentally wanted the option to accept the best deal that any team offered him.^[147] When defense attorney Mark Hughes directly asked Flood if he wanted to abolish the reserve clause, as had been his position throughout, Flood misspoke and said he simply wanted it modified.^[148] At the end of his testimony, Hughes asked Flood what he believed would happen if every MLB player became a free agent at the end of the season, to which Flood responded, "I think then every ballplayer would have a chance to really negotiate a contract just like in any other business."^[149] Cooper asked Goldberg if he would like his client's response struck from the record, to which Goldberg replied, "No, I like that answer."^[150]

Miller was the next to testify, arguing to abolish the reserve clause.^[145] He referred to it exclusively as the "reserve clause system", as the specific clause was no longer included in contracts but was a fundamental aspect of MLB, and he critiqued the fairness of such a system.^[151] Flood and Miller were supported by former baseball players such asJackie Robinson, who testified that without "some change in the reserve system, I can see nothing else but that the players go on strike".^[145]Hank Greenberg, a former Detroit Tiger, recalled that he had been notified of his trade to thePittsburgh Pirates by telegram,^[152] and he testified that the "reserve clause should be eliminated entirely, thereby creating a new image for baseball".^[145] The one MLB owner to testify in Flood's favor wasBill Veeck, who declared that every player "at least once in his career should be able to determine his own future and not be held in perpetuity".^[153]

Defense witnesses included Kuhn, Feeney, Pro Football CommissionerPete Rozelle, and several MLB executives.^[153] One day of the trial consisted entirely of the testimony ofRobert R. Nathan, an economic consultant who said that the reserve system did stifle competition, but that the alternative would lead to smaller-market teams like theMilwaukee Braves being choked out by teams in large markets like Philadelphia and New York.^[154] This sentiment was later echoed by team owners includingBob Reynolds of theLos Angeles Angels,Frank Dale of the Cincinnati Reds,John McHale of theMontreal Expos, andEwing Kauffman of theKansas City Royals, all of whom insisted that the reserve system was necessary to preserve the "economic health" of their respective franchises.^[155] On the sixth day of the trial, Kuhn argued in favor of the historical precedents set by the reserve clause and Supreme Court.^[156] He was careful not to criticize Flood personally, instead attacking the MLBPA as acting in bad faith and not committing to "realistic negotiations" with the owners.^[157]

The trial ended in June, and both sides were given a month to submit post-trial briefs to Cooper.^[158] By this time, Flood appeared to have lost interest in the proceedings. He had been absent from Veeck's testimony, having gone toShea Stadium to watch Gibson pitch against theNew York Mets.^[153] Flood's team produced an 88-page document detailing the inconsistencies on baseball's position: while baseball may have been exempted from federal antitrust laws underFederal Baseball andToolson, it was still subject to state antitrust laws. The 133-page brief from MLB's attorneys, meanwhile, suggested that Flood was acting as a pawn of the Players Association.^[159] In August, Cooper delivered a 47-page opinion in which he upheld the reserve clause under the precedent set byToolson.^[153] He also rejected the Thirteenth Amendmentcause of action, saying that Flood was under no obligation to actually play for Philadelphia: while retiring from baseball would bring him financial harm, that option was still open.^[160][161]

Flood had also argued that if federal antitrust state law did not reach baseball, then equivalent state laws had to. Cooper disagreed, citing the Wisconsin Supreme Court's ruling for the Braves^[73] and the Second Circuit's inSalerno,^[79] the latter of which was binding precedent on the Southern District. Noting that the reserve clause had not been at issue there, Cooper concluded that "[the] application of various and diverse state laws here would seriously interfere with league play and the operation of organized baseball.^[162]

Shortly after Cooper rendered his decision, Flood appealed it to the Second Circuit.^[163] In April 1971, a unanimous opinion by JudgeSterry R. Waterman upheld Cooper's decision underFederal Baseball and all subsequent rulings on the principle ofstare decisis.^[164] It also citedRadvovich to suggest that while baseball's exemption from the antitrust laws under which other sports leagues fell was "unrealistic", "inconsistent", and "illogical",^[70] it was still the Supreme Court's prerogative to overrule it andToolson.^[165] JudgeLeonard P. Moore wrote aconcurring opinion tracing in greater detail the history of baseball and its antitrust exemption, which he did not believe the Supreme Court would revoke. He concluded that, aside from theChicago Black Sox scandal baseball had managed to grow and retain the public's interest remarkably well without judicial intervention. "[I] would limit the participation of the courts in the conduct of baseball's affairs tothe throwing out by the Chief Justice (in the absence of the President) of the first ball of the baseball season."^[166]

In July, Flood's attorneys filed acertiorari petition with the clerk of the U.S. Supreme Court, the first step towards asking the Court to hear the case.^[167] MLB's attorneys submitted their response to the writ in August, and the Court agreed to hear the case two months later,^[168] a decision that troubled Kuhn since it indicated that at least four justices saw a potential issue with the case and might be inclined to reverse.^[169]

In his absence from the Phillies as the case moved through the courts, Flood's rights returned to the Cardinals, who negotiated another trade with Philadelphia. The Phillies received two minor leagueprospects and placed Flood on their voluntary retirement list, which meant that he did not count against their 40-man roster, but if he chose to return to baseball, he could only play for Philadelphia.^[170] TheWashington Senators acquired Flood's rights from Philadelphia partway through the 1971 season, and Flood accepted a one-year, $110,000 contract to recoup the financial losses that came with missing the 1970 season.^[163] Senators ownerBob Short promised Flood that accepting a deal with the team would not damage his court case, as he could argue that he had already accrued damages from missing the previous season.^[171]

Flood played only 13 games with the Senators, quitting on April 28 after performing poorly, and moved toMadrid to distance himself from baseball and the stress of his court case,^[172] but still collecting $55,000 in salary. "I tried", he wrote in a telegram to Short. "Very serious problems mounting every day. A year and a half is too much."^[169]

Once the Supreme Court agreed to hear the case, both sides submittedbriefs. Flood's attorneys received a two-week extension from JusticeThurgood Marshall and submitted theirs in December 1971, while MLB responded at the end of January 1972.^[168] Goldberg's brief had eliminated the Thirteenth Amendment concerns entirely and focused on how the reserve system had become "drastically more restrictive" since its introduction and previous litigation.^[173] Paul Porter and Lou Hoynes responded to Goldberg's antitrust assertions by arguing that Flood's case was a labor dispute that should have been settled in acollective bargaining agreement (CBA) between league and union, not in court.^[174]

Oral arguments inFlood v. Kuhn were heard on March 20, with both sides allowed to speak for 30 minutes.^[174] Goldberg, appearing before the Court since he had left it in 1965,^[169] went first on Flood's behalf, speaking of the unfairness of the reserve clause and how it had in 1965 been made worse through its extension to rookie players signing their first contracts to play in the minor leagues. He told JusticeWilliam J. Brennan Jr. that Flood would oppose the reserve clause even if it had been the result of collective bargaining. JusticeByron White asked if playing baseball was not covered under the labor exemption to antitrust law; Goldberg noted that Kuhn himself had described baseball as entertainment, which the Court had previously ruled was interstate commerce. "Every commentator has said it's an anomaly in the law to adhere toFederal Baseball andToolson as wrongly decided", Goldberg concluded, commenting that if thesteelworkers union, a former client, had agreed to similar terms with any employers binding a member or members to them for his entire working life, that contractual provision would clearly be seen as aper se violation of the law.^[175]

Paul A. Porter came next, arguing for Kuhn and MLB in rebuttal that baseball was unique, even compared to other sports, in the antitrust context because of the portion of its revenues invested in player development through their extensive farm systems. Louis Hoynes, counsel for the NL, argued MLB's case.^[k] He placed great emphasis on the MLBPA, which he said "has in fact controlled this litigation from beginning to end", to suggest that the real goal of the lawsuit was to make far more sweeping changes to the business aspect of baseball, and that these matters were far better addressed at the bargaining table.^[175]

Following oral arguments, the Court took an unofficialvoice vote in order of seniority.^[176] Chief JusticeWarren E. Burger began by admitting that "Toolson is probably wrong", but he did not say whether he believed the lower courts' rulings should be reversed.^[177]William O. Douglas voted to reverse the previous decisions and wanted toremand the case to district court for a new trial.^[176] Brennan agreed thatToolson should be overturned, but he also believed thatFlood was primarily a labor dispute that should remanded for a new trial that did not focus on antitrust concerns.^[178] JusticePotter Stewart voted to uphold the lower courts' rulings under Congress's explicit decision to exempt baseball from antitrust laws, and his position was joined by Marshall and JusticeByron White. JusticeHarry Blackmun also saw the case as a labor dispute and tentatively voted to affirm.^[179] JusticeLewis F. Powell Jr. recused himself, as he owned stock in Anheuser-Busch.^[180] While waiting for confirmation that the Cardinals were a subsidiary of the company,^[181] he stated in a voice vote that he believed the lower courts' rulings should be reversed, as it made "no sense" that baseball received different treatment in antitrust cases than other sports such as football.^[179] JusticeWilliam Rehnquist, the last to vote, affirmed the decision of the lower courts.^[179]

Without Powell, the court remained at a 4–4 deadlock until Burger changed his vote in favor of MLB.^[180] On June 19, 1972, the Court delivered its decision,^[174] with both parties notified by telegram that the lower courts' rulings had been upheld by a 5–3 margin. Blackmun, Stewart, Rehnquist, Burger, and White formed the majority, with Douglas, Marshall, and Brennandissenting.^[182] Had the 4–4 tie remained, the decision of the lower courts would have been affirmed, but the Court would not have published any opinions.^[183] None of the opinions specifically addressed the reserve clause; all instead focused on baseball's antitrust exemption.^[184]

Stewart had been asked to select the writer for the majority, a duty which he imparted on Blackmun, a noted baseball fan and the only member of the majority whose opinions seemed to have wavered on the case.^[185] Stewart told Blackmun to "do it very briefly ... Write aper curiam and we'll get rid of it".^[186] Blackmun's draft was over 20 pages long and divided into five sections.^[180] Rather than rewriting the majority opinion after seeing a draft of the dissenting opinions, as is custom, Blackmun's only major alteration between his first and second drafts was in expanding his list of notable baseball players from 74 to 88.^[187]

Section I of Blackmun's opinion^[188] has been described as an "ode to baseball".^[180] The first three paragraphs detail the history of the sport, beginning with the first organized game in 1846 and continuing through the formation of the MLBPA in 1966. This is followed by a list of 88 players he considered great.^[189] Some of them were beyond an average fan's knowledge, includingHeinie Groh,Dan Brouthers, andChief Bender.^[190] While Blackmun never explicitly cited the origins of his list, he kept a copy of theEncyclopedia of Baseball on his chambers desk, and many of the players he lists are found inThe Glory of Their Times byLawrence Ritter.^[191] It is rumored that Marshall called Blackmun after seeing the original draft of the opinion to ask why no black players were included. Blackmun responded that there were no great black players in the golden age of baseball, but he ultimately included Jackie Robinson,Satchel Page, andRoy Campanella.^[192] Blackmun denied this rumor, saying that Campanella had been on his original list, and he later said that the one player he had forgotten wasMel Ott.^[190] Section I concludes with various baseball arcana, includingRing Lardner's reference to the "World Serious", a line from the poem "Baseball's Sad Lexicon", and quotes fromGeorge Bernard Shaw,Franklin Pierce Adams, and "Casey at the Bat".^[193]

The remainder of Blackmun's opinion proceeds as standard. Section II, titled "The Petitioner", outlines Flood's career, salary history, and the trade that had provided the impetus for the lawsuit.^[194] Section III, titled "The Present Litigation", summarized Flood's lawsuit.^[195][180] Section IV discusses the legal precedents set byFederal Baseball andToolson.^[196][197] Finally, Section V presents the rationale of the court, with eight specific findings concluding that baseball, while a type of interstate commerce, is also a unique industry exempt from antitrust laws.^[198][199] Blackmun's opinion focuses primarily onstare decisis, conceding that while the decision inFederal Baseball to exempt the sport from antitrust status was an "anomaly", its precedent was sufficient that changes could only be made through Congress.^[200][201]

White indicated his concurrence in a note, and Burger with a short written opinion. Both explicitly said that they did not concur with Blackmun's Section I. White, a formerfootball star at theUniversity of Colorado, believed that Blackmun's rambling ode to baseball was demeaning to the Court.^[202] Burger, meanwhile, showed his sympathy for Douglas's dissent but argued thatToolson had been precedent for so long that he could not support Flood and the upheaval that would cause.^[185] "The error, if such it be, is one on which the affairs of a great many people have rested for a long time", he wrote. "Courts are not the forum in which this tangled web ought to be unsnarled."^[203]Bob Woodward andScott Armstrong's 1979 Supreme Court biography,The Brethren, claimed that many justices were embarrassed by Section I's overt sentimentality.^[171]

The three remaining justices wrote two dissents. Justice Douglas, with Brennan concurring,^[204] calledFederal Baseball "a derelict in the stream of the law that we, its creator, should remove. Only a romantic view of a rather dismal business account over the last 50 years would keep that derelict in midstream."^[l] Douglas directly critiqued the assertion that baseball had remained the same in the 50 years following the decision inFederal Baseball, and that the sport had become "big business that is packaged with beer, with broadcasting, and with other industries".^[204] He particularly rebuked Blackmun's assurance that Congress would handle any alterations to the antitrust exemption, writing that they had not done so to this point.^[206] Douglas was the only member of the Court who had also been on the bench for theToolson decision, in which he had voted in favor of upholdingFederal Baseball. He used his dissent inFlood to express his regret for that decision, writing that "the unbroken silence of Congress should not prevent us from correcting our own mistakes".^[202][207]

Brennan also concurred in Marshall's dissent,^[204] a reversal of his voice vote, in which he had implied that he would affirm the appellate ruling on the basis of Congress's antitrust exemption for baseball. "This is a difficult case", he admitted, "because we are torn between the principle ofstare decisis and the knowledge thatFederal Baseball andToolson are totally at odds with more recent and better reasoned cases." Marshall focused his dissent on the issue of Flood as an individual, whose rights he believed were impinged upon by a system that held players in perpetuity.^[208] He would have overruled both precedents and reversed.^[202][209]

He explicitly invokedRadovich andInternational Boxing, as cause for the Court to reverse its rulings on baseball to consistently apply antitrust legislation across all professional athletics:^[210][211]

The importance of the antitrust laws to every citizen must not be minimized. They are as important to baseball players as they are to football players, lawyers, doctors, or members of any other class of workers. Baseball players cannot be denied the benefits of competition merely because club owners view other economic interests as being more important, unless Congress says so.

Marshall clarified that he believed the particulars of Flood's case belonged at the level of the district courts as a labor dispute, where that lower court could investigate whether the antitrust violations practiced by MLB circumvented the league's CBA with the Players Association.^[184][212]

The ruling inFlood v. Kuhn came as a surprise to many sportswriters and scholars who were following the case. Harold Spaeth, a political scientist atMichigan State University, had predicted that Flood would prevail either unanimously or with Rehnquist as the sole dissent. Sportswriter Tom Dowling, who had been present for the oral arguments, believed that the case would be remanded, Flood awarded damages, and Kuhn would have to work with the players to create afree agency system.^[213] Despite the owners' legal victory, popular opinion had turned against the league, with some polls showing baseball fans favoring Flood by an 8:1 margin.^[214]

Kuhn called the decision "constructive" and said he looked forward to discussing free agency with the players in the next contract negotiation. "The last thing I wanted was for the clubs to view theFlood decision as an excuse for doing nothing," he wrote later. "Change was in the wind. Other sports were changing; we could not possibly sit still."^[215][m]

Flood never returned to professional baseball. He lived in Spain for four years, owning a bar and laying carpet.^[184] Upon his return to the United States, he worked as a broadcast announcer for his hometownOakland Athletics, as aLittle League Baseball coach, and as commissioner of a senior baseball league.^[217] While working for the Athletics, he ran into Kuhn at a 1980 pregame party atYankee Stadium. During an amicable conversation, Kuhn told Flood that while he had never doubted Flood's sincerity in pursuing the case and did not take it personally, Flood should still not have taken his Senators' salary.^[216]

TheGold Glove Award Flood had won for the 1969 season but not formally received due to his legal dispute was presented to him in 1994.^[217] He was diagnosed withthroat cancer in 1996 and died ofpneumonia at aLos Angeles hospital in January 1997.^[218] The year after his death, he was posthumously elected to theBaseball Reliquary, which honors players both for their on-field statistics and for their off-field character.^[219]

The breakdown of Busch's relationship with Flood was compounded by the Cardinals' decision to terminateHarry Caray's announcer contract. These upheavals left Busch emotionally disturbed, with his son Adolphus Busch IV later writing, "[s]omething had occurred that made him question whether he should stay on as CEO of the company or retire".^[220] In 1975, his other son,August Busch III, began aboardroom coup to oust his increasingly erratic father from Anheuser-Busch.^[221] While August took over the brewing industry, he allowed Gussie to remain president of the Cardinals as long as he accepted his son's usurpation and publicly announced that he was retiring of his own accord.^[222] Busch died of pneumonia andcongestive heart failure in September 1989.^[223]

Their loss inFlood signalled to the MLBPA that any serious revisions to the league's operations could not go through the courts.^[224] The original CBA between the league and Players Association had created anarbitration system for labor disputes.^[225] Miller used it to the players' advantage, encouraging them not to sign contracts and arbitrate their salary disputes.^[226] MLB's first official free agent wasCatfish Hunter, who in 1974 took theOakland Athletics to arbitration over abreach of contract. Arbitrator Peter Seitz declared Hunter's contract with the Athletics void, allowing him to sign with whatever team he wished. The $5.5 million contract he eventually signed with the Yankees was at the time the largest of any major league player.^[227]

Also in 1974,Los Angeles Dodgers pitcherAndy Messersmith, who had led the NL inwins that season, asked ownerWalter O'Malley for both a raise and ano-trade clause added to his 1975 contract. O'Malley granted Messersmith the raise, but he could not offer a no-trade contract, arguing that it was against league rules.^[228] Messersmith refused to sign his contract until the clause was added, and the Dodgers renewed his previous contract without his consent.^[229] When O'Malley refused to include a no-trade clause again at the end of the 1975 season, Messersmith discussed his options with Miller.^[230] The union director connected him withDave McNally, who had retired partway through the previous season after theBaltimore Orioles traded him to theMontreal Expos.^[230] If McNally ever chose to unretire from baseball, the reserve clause meant that he would have to play for the Expos. McNally, a strong union supporter, joined Messersmith to ensure the case went to arbitration rather than letting the Dodgers negotiate independently.^[231]

In October 1975, the MLBPA filed grievances on behalf of Messersmith and McNally, arguing that their contracts with the Dodgers and Expos had expired after the 1975 season, leaving both players essentially free agents.^[232] The central argument around Messersmith's case regarded the Uniform Player's Contract of the Basic Agreement, which stated that "the Club shall have the right ... to renew his contract for the period of one year on the same terms".^[233] Messersmith understood the contract to mean that the Dodgers had the right to extend his contract unilaterally for the 1975 season, but now that the season had passed, he was no longer under contract with the team. The Dodgers front office argued that renewing Messersmith's contract also renewed the one-year option, and that they could continue to extend his contract in perpetuity.^[234]

On December 23, 1975, Seitz ruled in favor of the two pitchers that the Basic Argument only allowed unilateral extensions for a period of one year. Moments after issuing his ruling, the owners fired him as an arbitrator.^[235] Seitz's decision was based on the question of whether the reserve clause extended to players whose contracts had expired. Rule 4-A(a) suggested that reservations only applied to players under active contract, while Major League Rule 3(g) prohibited opposing owners from approaching reserved players regardless of their contract status.^[236] Seitz rested his decision on the Cincinnati Peace Compact that had united the National and American Leagues in 1903, which applied the reserve clause only to players under active contract.^[237]

Seitz never addressed the antitrust exemption in his ruling, focusing on the CBA, particularly this provision of the 1970 version: "Regardless of any provision herein, this Agreement does not deal with the reserve system."^[238] Because the CBA did not directly deal with the system, any challenges to it were allowed to pass through arbitration.^[239] After Seitz's ruling, the owners challenged his decision in federal court for theWestern District of Missouri before JudgeJohn Watkins Oliver.^[240]

The case turned on the three 1960 Supreme Court cases known collectively as the "Steelworkers Trilogy",^[n] which define the role and scope of arbitration in resolving labor disputes.^[241] MLB, through the plaintiffKansas City Royals, argued that a more recent Court decision^[242] modified the Steelworkers precedents such that the issue of the reserve clause was not arbitrable because the agreement demonstrated an intent to exclude it from arbitration. Oliver did not find the record to support that claim and reiterated the dictum from one of the trilogy cases^[243] that doubts as to arbitrability are to be resolved in its favor.^[244]

Oliver's decision was upheld again by theEighth Circuit, where JudgeGerald Heaney wrote for a unanimous panel that found no fault with his reasoning.^[245] The owners decided against taking their case to the Supreme Court.^[246]

Kuhn did not consider theFlood decision to be a victory for MLB's ownership, as it made the reserve clause a target for future contract negotiations.^[247] The MLB collective bargaining agreement made its first amendment to the reserve system after the1973 Major League Baseball lockout. The "Curt Flood rule" provided that any player with 10 years of major league service, five of which had been with their current team, could veto a proposed trade.^[248] This CBA expired at the end of 1975, requiring the owners and players to negotiate a new one.^[246] After clashing with the players over many aspects of this agreement, the owners institutedanother lockout in March 1976 and came to an agreement in July.^[249]

Under the 1976 agreement, players who had signed a contract with their team before August 9 of that year would become free agents at the end ofthat season. The club was allowed to extend their contract for one year, at which point the player would enter free agency in 1977.^[250] All players who signed contracts after that date would automatically reach free agency after six years of major league service. Any player with five seasons of service, meanwhile, could demand a trade from the owner and provide a list of teams he did not wish to be traded to. If that player was not moved to an agreeable team by March 15, he would also become a free agent.^[249]

While Congress responded toFlood with two bills that would have repealed baseball's antitrust exemption, they were unpopular with legislators, and the only immediate legal effect was a 1973 bill expanding the broadcast of sold-out regular-season professional sporting events.^[251] Their next move was to create the Select Committee on Professional Sports in May 1976, which was presided over by California DemocratB. F. Sisk.^[252]

The Sisk Committee explored several contemporary issues in professional sports, including baseball's antitrust exemption. The league argued that the exemption was necessary to maintain a competitive balance among teams, and the Committee was also tempted to uphold the exemption through veiled promises that new MLB franchises would expand into their districts. While the Sisk Committee ultimately found that there was no adequate justification for baseball's antitrust exemption and recommended that it be lifted accordingly, no bills to that effect were introduced.^[253] The committee also recommended a successor committee be established on sports antitrust law, but it was never established; a study was done in 1981.^[254] RepresentativeGillis Long attempted to pass a bill that would strip MLB of its "favorite son treatment", which he announced in a hearing withNBA CommissionerLarry O'Brien, but it died in committee.^[254]

In January 1995, a bill that would have eliminated baseball's antitrust exemption was introduced to the Senate, where it died in committee soon after the resolution of the1995 strike. SenatorOrrin Hatch reintroduced the bill the day after Flood's death as the "Curt Flood Act of 1997". The bill amended theClayton Act to "clarify that major league baseball players and owners have the same legal rights, and the same restrictions, under the antitrust laws as the players and owners in other professional sports leagues".^[255] The bill was voted out of committee that October and was approved by Congress the following January. PresidentBill Clinton signed the Curt Flood Act of 1998 (CFA) into law on October 28, 1998.^[256][257] While the relationships between major league players and ownership now fell under federal antitrust protections,^[o] other aspects of professional baseball, including franchise expansion, relocation, ownership, and ownership transfers, as well as "the marketing and sales of the entertainment product", remained exempt.^[259][260]

TheFurthering Access and Networks for Sports Act, known as the FANS Act, initially proposed to further limit the exemption. Introduced in the Senate byRichard Blumenthal,Democrat ofConnecticut, in 2013, with cosponsorship byRepublicanJohn McCain ofArizona, it was primarily motivated by fan anger over the control exerted over cable and Internet broadcasts of games by all four professional sports leagues and major cable providers. While its greatest changes were proposed for the SBA, primarily affecting the NFL's blackout policies, it also would have repealed the language of the CFA that keeps the reserve clause in force for minor league players and the language that applies to broadcasting.^[261] TheJudiciary Committee held hearings on it over a year later,^[262] but it never came to any vote.^[263] In the next Congress the two senators reintroduced the bill, but without the provisions amending the CFA.^[264] It was again referred to the Judiciary Committee and died there.^[265]

Seven years later, in the wake of the2021–22 lockout, MLB's first work stoppage in a quarter-century, Democratic SenatorDick Durbin ofIllinois, chairman of the Judiciary Committee, said that "at this moment in time we should be revisiting this issue" of baseball's antitrust exemption. A Republican member of the committee,Mike Lee ofUtah, had already introduced a bill to end the exemption the year before. "There's no reason that Major League Baseball should be treated any differently than any other professional sports leagues in America" he had said then. Other Republicans on the committee, such asTed Cruz of Texas, supported the bill because they were upset about MLB's decision to move the2021 All-Star Game from Atlanta following protests over the Georgia legislature's passage ofa controversial electoral reform law.^[266]

Later in 1972, JudgeLeon Higginbotham of theEastern District of Pennsylvania became the first to consider an extension of the baseball antitrust exemption in the wake ofFlood.Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc. was brought by thePhiladelphia Blazers of theWorld Hockey Association (WHA) against theNational Hockey League's (NHL)Philadelphia Flyers. The WHA, the first league to attempt to compete with the NHL in offering major league professionalice hockey, alleged that the older league had violated the Sherman Act with its attempts to deter its players from signing with WHA teams. Higginbotham easily found that the NHL was not exempt from antitrust law:^[267]

Maybe in 1922 when the Supreme Court decided the baseball case, hockey was also, as Mr. Justice Holmes then described baseball, primarily an effort to give exhibitions with profits and interstate commerce contacts as mere incidentals. But today, as I review the instant record, hockey is primarily a multi-state, bi-national business, where thefundamental motive is the making of money. From its multiple interstate contacts it is a business in commerce subject to the federal anti-trust laws.

In a footnote, Higginbotham acknowledged that the Supreme Court had never had to decide whether hockey shared baseball's exemption. He based his decision on the cases that had denied it to other sports and similar industries, such asShuster,International Boxing andRadovich. From the text ofFlood, he took further note^[268] of Blackmun's passing statement that hockey was "presumably" among the other major professional team sports subject to antitrust law.^[269]

Two decades later, another judge of the Eastern District,John R. Padova, heard a case claiming baseball's antitrust exemption sufficed to make it a private-partystate actor. The plaintiffs, two Philadelphia-area members of a partnership that sought to acquire theSan Francisco Giants and move the team to Florida, alleged that MLB had not only conspired with other defendants at the behest of the federal government, the city of San Francisco and other local governmental entities in theBay Area to prevent the move but, in the process, defamed plaintiffs by insinuating that they had connections toorganized crime. Padova citedJackson v. Metropolitan Edison Co., in which the Supreme Court had held that the extensive regulation of a public utility does not make it a state actor,^[270] andSan Francisco Arts & Athletics, Inc. v. United States Olympic Committee, which held the same regarding the respondent'strademark on the term "Olympic" regarding athletic contests, denying its use by the organizers of theGay Games.^[271] "Simply uttering the word 'encouraged,' however, is not enough to equate Baseball's actions with those of the federal government", Padova wrote. "[T]he governmental involvement alleged here can, at best, be viewed as mere acquiescence, as opposed to the 'significant,' active encouragement required to adequately link defendants' actions to the federal government."^[272]

A 1992 suit by a female minor league umpire alleginggender discrimination revisited the questionSalerno had brought but in the post-Flood era: does the antitrust exemption extend to baseball's relationships with its non-player employees? Finding that the baseball trilogy offered "little guidance" in that area, JudgeRobert P. Patterson Jr. of the Southern District took note ofFlood's reference to the exemption being rooted in baseball's "unique characteristics and needs"^[273] and the Wisconsin Supreme Court'sBraves dictum that the antitrust exemption probably did not cover all business activities related to baseball.^[274] "[T]he exemption does not provide baseball with blanket immunity for anti-competitive behavior in every context in which it operates", Patterson concluded. "Anti-competitive conduct toward umpires is not an essential part of baseball and in no way enhances its vitality or viability."^[275][p]

Florida officials again attempted to investigate MLB in the wake of its2001 contraction plan, which would have shut down two franchises that conductedspring training in the state. Again MLB responded that the antitrust exemption applied to quash the state'scivil investigative demands (CIDs). On appeal, anEleventh Circuit panel revisited the issue ofMilwaukee Braves: what aspects of baseball can state antitrust law regulate?^[276]

JudgeGerald Bard Tjoflat wrote that the amount of teams that play was another decision "integral to the business of baseball" and thus beyond the reach of federal law. A paragraph inFlood that briefly addressed the state antitrust issue was, while "hardly a model of clarity", led him to accept MLB's theory that under theSupremacy Clause, "the Supreme Court'sCommerce Clause jurisprudence, when applied to professional baseball, must be read to establish a uniqueper se rule that prohibits the application of state antitrust laws when the federal exemption is triggered ... [F]ederal law establishes a universal exemption in the name of uniformity."^[277][q] In his conclusion, Tjoflat conceded that while "[t]he exemption was founded upon a dubious premise, and it has been upheld in subsequent cases because of an equally dubious premise", and it was thus understandable that Florida should seek a more limited exemption, that was nevertheless the prerogative of the Supreme Court or Congress.^[279]

In 2013 the owners of two of theWrigley Rooftops, the viewing areas erected atop privately owned buildings on the streets adjacent toWrigley Field, from whichChicago Cubs games and other events atWrigley Field can be seen, sued the team alleging its owners, the Ricketts family, had been indulging in anticompetitive practices to force the sale of some of the remaining rooftops to the team in violation of an earlier agreement. The plaintiffs anticipated the team's likely invocation of the baseball antitrust exemption by arguing that it applied only to MLB and not individual franchises. JudgeVirginia M. Kendall of theNorthern District of Illinois rejected that argument in denying them apreliminary injunction, noting thatToolson had affirmedFederal Baseball with a team as defendant, as well as theCincinnati Reds in its companion case,Corbett v. Chandler.^[280]

SinceFlood lower courts have divided over whether baseball's antitrust exemption was limited in scope to the reserve clause^[281] (the minority position, taken by only two courts^[282]) or covered baseball generally.^[283][284] To resolve this question, some courts have generally turned the inquiry to the role the reserve clause played in the originalFederal Baseball case,^[285] or looked to the text of the three Supreme Court decisions establishing and affirming the exemption.^[283]

The first court to consider this question afterFlood^[r] was theSeventh Circuit, when it heardCharles O. Finley & Co. Inc. v. Kuhn on appeal in 1977. The plaintiff, theOakland Athletics (A's), had sued over the commissioner's decision to block the sales of three players beforethe 1976 season as "not in the best interests of baseball", a power of the office rarely invoked; Kuhn believed that Finley was almost giving away star players in a "fire sale" in advance of free agency to other teams already rich in talent that did not have to part with any of their stars. The A's argued that Kuhn and Major League Baseball had engaged inrestraint of trade and sought damages, in part under antitrust law, which they argued covered the commissioner's actions asFlood had only held the reserve clause covered by the antitrust exemption as outlined inFederal Baseball and affirmed inToolson.^[283]

After the district court had grantedsummary judgement for defendants on all counts, JudgeRobert Arthur Sprecher wrote for a panel that unanimously affirmed. In considering the scope of the antitrust exemption, Sprecher looked toRadovich and the three baseball cases. In all of them, the Court had regular referred to "the business of baseball" as the subject of the exemption, leading Sprecher to conclude that "it appears clear ... that the Supreme Court intended to exempt the business of baseball, not any particular facet of that business, from the federal antitrust laws."^[283] In a short concurrence,Thomas E. Fairchild, now the circuit's chief judge, referred to his majority opinion fromMilwaukee Braves during his time on theWisconsin Supreme Court to support his belief thatFederal Baseball had not been concerned with the reserve clause.^[288]

In 1982 JudgeGabrielle Kirk McDonald of theSouthern District of Texas heard a suit brought against theHouston Astros byKYST-AM after the team cancelled its radio broadcasting contract with the station in favor of KENR (nowKNTH), also a defendant. The Astros moved to dismiss on the basis of the antitrust exemption, but McDonald noted thatGardella had left unresolved the question, alluded to in later cases, of whether the exemption reached broadcasts of baseball games. She observed that theSports Broadcasting Act of 1961 (SBA), granting all professional team sports including baseball an exemption from the Sherman Act to allow leagues to negotiate television broadcast rights contracts on behalf of all member clubs. "The fact that interstate broadcasting has on the one hand subjected other professional sports to the antitrust laws, but has not on the other hand affected the baseball exemption, is perplexing."^[289]

McDonald decided that there was nothing in the Supreme Court's jurisprudence on the baseball exemption to show that it was anything more than an "aberration" to be left undisturbed. As for Congress, reports prepared prior toToolson and, later, during the passage of the SBA, showed that it readFederal Baseball as concerned primarily with protecting baseball's right to protect its own league structure, which was not an issue in the instant case. "Congress has not exempted radio broadcasting from the antitrust laws, and there is no reason to believe Congress intended to exempt radio broadcasting of baseball from those laws."^[289][s]

WhileFinley had held the exemption broadly applicable to the business of baseball, McDonald pointed to where the Seventh Circuit had qualified it as "not apply[ing] wholesale to all cases which may have some attenuated relation with the business of baseball".^[291] Other lower court cases demonstrated this with two recent examples of lawsuits involving baseball and allegations of unfair trade practices inconcession stand operations^[292][t] and baseballtrading cards,^[294] in which she noted that neither defendant had raised the antitrust exemption.^[u] "The baseball exemption today is an anachronism" she concluded. "Defendants have not presented a reason to extend it."^[289]

Three cases in the 21st century have dealt with the scope of the antitrust exemption following the CFA. In the early 2010s a group of fans brought suit against MLB, the NHL and severalcable companies andregional sports networks (RSNs) over theirout-of-market (OOM) sports packages. At the time those who wished to watch all their favorite teams' away games could only do so if they bought a costly OOM package which included virtuallyall games; many of them were only interested in a small fraction of them and thus found the expense of an OOM package undesirable. Cablecast agreements between the leagues, cable providers and RSNs blacked out OOM games in the team's home markets if they were cablecast on national cable networks. The fans alleged these arrangements were an antitrust violation meant to force them to buy the OOM packages.^[295]

MLB had raised its antitrust exemption and theFederal Baseball–Toolson–Flood trilogy as a defense. JudgeShira Scheindlin of the Southern District rejected it in 2014. "The continued viability and scope of the baseball exemption are far from clear", she wrote. MLB had argued the language ofToolson applied to all aspects of its business, not just the reserve clause, which had been rendered moot by the CFA. But she responded that none of the cases consolidated withToolson had mentioned broadcasting. "Indeed, because television broadcasting is an interstate industry by nature, it cannot fall within the exemption defined byFederal Baseball", she wrote. "It would be strange to readToolson to expandFederal Baseball's holding to territorial broadcasting restrictionssub silentio."^[285]

Case law had not resolved the issue. While most courts had found that afterFlood the exemption still applied to all aspects of baseball, another had found in 1993 that it only applied to the reserve clause. The SBA indicated to Scheindlin that Congress at that time understood the broadcast of baseball games was not covered by the exemption. She was also unpersuaded by aCongressional Budget Office cost estimate of the CFA that included broadcast rights, since that could not be seen as sufficiently indicative of congressional intent, and language in the Act listing aspects of the baseball business that would not be affected by the law were also too vague to conclude that they were intended as specifically targeted at broadcast rights.^[285]

"Exceptions to the antitrust laws are to be construed narrowly", Scheindlin wrote, citing Supreme Court precedent to that effect.^[296] Noting again that outsideFlood the Supreme Court had indicated baseball's antitrust exemption to be so legally dubious that it could not extend it to other sports, "I therefore decline to apply the exemption to a subject that is not central to the business of baseball, and that Congress did not intend to exempt—namely baseball's contracts for television broadcasting rights.^[285][v]

A year later, another case reached the appellate courts seeking to apply state antitrust law to baseball, when theNinth Circuit heardCity of San Jose v. Office of the Commissioner of Major League Baseball. The case concerned an effort by the Athletics to move to a new stadium proposed to be built inSan Jose in order to remain in the Bay Area. In order to do so, the Giants had to give their assent asSanta Clara County was within their exclusive territory, and they had not been willing to. The city claimed that MLB was conspiring with other defendants to prevent the move.^[284]

The circuit's chief judge,Alex Kozinski, wrote for a panel that unanimously held for MLB. He rejected the city's argument that the antitrust exemption was limited to the reserve clause by pointing out that the circuit had held otherwise in deciding the Portland Beavers case^[w] shortly beforeFlood, which had turned on franchise relocation, the same issue at hand in the instant case. Further, the CFA had specifically exempted franchise relocation. "Flood's clear implication" Kozinski wrote, "is that the scope of the baseball exemption is coextensive with the degree of congressional acquiescence, and the case for congressional acquiescence with respect to franchise relocation is in fact far stronger than it was for the reserve clause at issue inFlood itself."^[298]

In 2017, hearing the appeal ofRight Field Rooftops, the Seventh Circuit considered itsFinley precedent and held that the sale of seats at locations outside the ballpark was within the antitrust exemption as well. "This exemption protects the general 'business of baseball' from antitrust laws, and the public display of baseball games is integral to that business", wrote JudgeWilliam J. Bauer. "By attempting to set a minimum ticket price, purchasing rooftops, threatening to block rooftops with signage that did not sell to the Cubs, and beginning construction at Wrigley Field, the Cubs' conduct is part and parcel of the 'business of providing public baseball games for profit' thatFederal Baseball and its progeny exempted from antitrust law."^[299]

InPiazza, Judge Padova foundFinley's reading ofFlood and the cases leading to it incorrect. The more expansive reading sought by MLB to bar suit in the instant case, he allowed, might have been correct prior toFlood. But since that case had conceded that the factual basis for the exemption was no longer consistent with the Court's broadened reading of theCommerce Clause, Padova sawFederal Baseball andToolson's continuing value as precedent to rest solely on those aspects covered bystare decisis inFlood.^[281]

For Padova, the "gravamen" ofFederal Baseball, as shown in theD.C. Circuit's decision affirmed in that case, was MLB's use of the reserve clause to hamper the FL's efforts to sign players. TheFlood Court, he noted, had more than once referred to the clause as the specific issue inToolson as well, and saw its instant case as similarly limited: "For the third time in 50 years the Court is askedspecifically to rule that professional baseball'sreserve system is within the reach of the antitrust laws."^[300](emphasis Padova's).^[281]

Padova identified two shortcomings with the Seventh Circuit'sFinley opinion. First, it downplayed the role theFlood Court saw the reserve clause playing in the previous cases, wrongly suggesting it had only been mentioned twice, and peripherally, in the majority, omitting the quotations he had found significant. Second, "[a]pplication of the doctrine ofstare decisis simply permits no other way to readFlood than as confining the precedential value ofFederal Baseball andToolson to the precise facts there involved."^[281]

A year later, theFlorida Supreme Court was considering another case related to the Giants' possible move to that state. The state'sattorney general,Bob Butterworth, had issuedcivil investigative demands (CIDs) to the NL and other parties in an attempt to find out whether any of them broke Florida state antitrust law to keep the team from moving. The NL argued the antitrust exemption meant they would not have to comply.^[282] A trial court agreed, as did the state'sFifth District Court of Appeal, but it certified the question to the state's Supreme Court.^[301]

Writing for the six majority justices,Major B. Harding foundPiazza more convincing thanFinley and other cases that had held similarly. "There is no question thatPiazza is against the great weight of federal cases regarding the scope of the exemption. However, none of the other cases have engaged in such a comprehensive analysis ofFlood and its implications", he wrote. "In fact, many of the cases simply state that baseball is exempt and cite to one or more of the baseball trilogy without any discussion at all."^[302][x]

Concurring justiceBen Overton said thatPiazza had changed his mind on the issue. He called on the U.S. Supreme Court to take the case and settle the question.^[304] The one dissenter,Parker Lee McDonald, mostly quoted at length from the trial judge's opinion holding that the question of franchise relocation was an essential part of the business of baseball and thus the antitrust exemption applied, barring the CIDs.^[305]

The following year, in dismissing a suit against MLB brought by fans and businesses claiming to have been adversely affected bythe recent strike, JudgeCarolyn R. Dimmick of theWestern District of Washington rejected the plaintiffs' reliance onPiazza andButterworth as attacks on the validity of the antitrust exemption as a bar to their claims. She conceded that the Florida Supreme Court's complaint thatFinley and the other precedents supporting a broad exemption were deficient in their reasoning, but noted that both they and Padova had omitted from their analysis theFlood Court's concluding statement quoting fromToolson:^[306] "Congress had no intention of including the business of baseball within the scope of the federal antitrust laws."^[307]

But after Butterworth raisedPiazza again in a 2001 suit over CIDs he issued again in response toMLB's plan to eliminate two teams the following season, federal judgeRobert Lewis Hinkle of Florida'sNorthern District was unimpressed. Engaging in the same close reading of the baseball trilogy, he held that "[t]he assertion that [Federal Baseball] was solely a reserve clause case is simply not true", noting that the case discussed a wide range of allegedly unlawful trade practices.^[308] He criticizedPiazza in a footnote: "Whatever the lower court might have thought, the Supreme Court thoughtFederal Baseball dealt with other issues, over and above the reserve clause. It is an odd approach to interpreting Supreme Court cases to disregard that Court's own description of a case in favor of a lower court's description."^[309]

The briefper curiam opinion inToolson had not mentioned the reserve clause. The later cases in the 1950s—Shuster,International Boxing andRadovich—also lent support to a broad scope for baseball's antitrust exemption. Hinkle observed that the first mentioned only "the business of baseball", and the latter two, as they had also concerned sports, would likely have mentioned the reserve clause in declining to extend baseball's exemption to those sports (The judge foundInternational Boxing particularly on point as the reserve clause has no equivalent in that sport, and thus the Court would have said that if it saw baseball's exemption as so confined).^[310]

InFlood, "[n]ot once did the Court intimate in any way that it was only the reserve clause that was exempt", Hinkle wrote. "To the contrary, the Court's articulation of the exemption was always phrased as the business of baseball, never as simply the reserve clause." He followed this with a detailed review of theFlood Court's view of all the predecessor cases. "Not once did the Court intimate in any way that it was only the reserve clause that was exempt. To the contrary, the Court's articulation of the exemption was always phrased as the business of baseball, never as simply the reserve clause."^[311]

Hinkle readFlood as establishing that it was up to Congress to modify or repeal baseball's antitrust exemption, rather than defining the scope of that exemption:^[312]

...Flood was a ruling not about whether the antitrust exemption should be terminated but aboutwho should make that decision. The Court determined that the decision whether to terminate baseball's antitrust exemption should be made by Congress, not by the Court. That was explicitly the basis forFlood's holding. The Court's rationale remains every bit as valid today as it was whenFlood was decided...Flood constitutes an unequivocal, binding decision of the United States Supreme Court, establishing that the business of baseball is exempt from the antitrust laws, as it has been since 1922, and as it will remain unless and until Congress decides otherwise. Period.

In 2021 the Supreme Court ruled inNational Collegiate Athletic Association v. Alston that the petitioner did not have the same antitrust exemption as baseball. JusticeNeil Gorsuch disparaged that exemption in his opinion for a unanimous Court:^[313]

To be sure, this Court once dallied with something that looks a bit like an antitrust exemption for professional baseball. InFederal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, [citations omitted], the Court reasoned that "exhibitions" of "base ball" did not implicate the Sherman Act because they did not involve interstate trade or commerce—even though teams regularly crossed state lines (as they do today) to make money and enhance their commercial success.[citations omitted] But this Court has refused to extendFederal Baseball's reasoning to other sports leagues—and has even acknowledged criticisms of the decision as "'unrealistic'" and "'inconsistent'" and "aberration[al]."

That passage set off speculation that the next time the baseball exemption, almost a century old, came before the Court, it might be ready to finally overruleFederal Baseball.Baseball America noted that the opinion also took the unusual step of citing, inline, theamicus curiae brief filed by Advocates for Minor Leaguers, which has sought to have the antitrust exemption overturned. "I think that today's opinion signals that the current composition of the Supreme Court has a significant skepticism about baseball's antitrust exemption", saidHarry Marino, director of that organization. "I read their segment of the opinion about the antitrust opinion as an invitation to litigants to raise the issue in front of the court".^[314]

The case that has been seen as possibly giving the Court that opportunity was already in the courts. As a result of theMinor League Baseball consolidation plan, theStaten Island Yankees' ownership group, Nostalgic Partners, decided late in 2020 that they had no choice but to fold the team after the parent New York Yankees revoked their affiliation with the club. They were not the only minor league team so affected. Since they had bought the club's majority interest 10 years earlier under the promise that the major-league Yankees, who owned a 5 percent stake, would retain that affiliation in perpetuity, Nostalgic brought suit in state court for breach of contract,promissory estoppel andtortious interference. MLB and its commissioner's office were also named as defendants.^[315] A month later theTri-City ValleyCats, based in theupstate city ofTroy, who had moved to theindependentFrontier League after their MLB parent, theHouston Astros, similarly ended their affiliation, filed a similar suit.^[316]

Later in 2021 the court dismissed most, but not all, of both teams' claims. The ValleyCats lost on breach of contract, since their agreement with the Astros had ended in 2020, but prevailed on tortious interference. Conversely, the Staten Island Yankees lost their tortious interference claims while the court found the parent Yankees, from whom Nostalgic had bought the team, had represented at the time of sale that they would never de-affiliate regardless of the status of the contract. Both teams called the results a success and indicated they would proceed withdiscovery. The parent Yankees noted how many of the Staten Island Yankees' claims had been dismissed and anticipated that the remaining ones would fall on appeal.^[317][318]

In December, both teams, joined by the similarly de-affiliatedNorwich Sea Unicorns andSalem-Keizer Volcanoes, filed a federal antitrust suit in the Southern District against MLB. The plaintiffs pointed to the skeptical passage inAlston and said "[we] thus have objectively good reasons to believe that the Supreme Court would no longer apply the 'unrealistic' and 'inconsistent' and 'aberration[al]' baseball antitrust exemption if presented with a proper case for reconsidering it ... This is that case." One of the lawyers involved told a sportspodcast that since it seemed that the Court had been inviting a challenge inAlston, "[w]e've decided we're going to accept that invitation."^[319]

Sam Ehrlich, aBoise State legal studies professor whose writings about the baseball antitrust exemption include an amicus brief inAlston,^[320] toldThe Washington Post that claim was more than just talk. "Everything in the complaint is compelling. Everything they said is a clear antitrust violation. Baseball, the way it's been operating in the minor leagues, is a clear violation of antitrust law except that it has this exemption."^[319]

In aUniversity of Cincinnati Law Review article, Ehrlich was more equivocal. He called the case "arguably the most compelling threat to the baseball exemption in nearly two decades",^[321] and suggested two paths to victory once the case reached the Supreme Court, as it likely would have to. One was for the Court to acceptPiazza andButterworth's reading ofFlood that limited it to the reserve clause and that the CFA thus merely left the existing exemption intact without clarifying it or defining it in any way. The other way was to follow the "changing market realities" line of thinking that had led toAlston from its predecessor,NCAA v. Board of Regents of the University of Oklahoma,^[322] and hold similarly that the changes in baseball sinceFlood justified setting that decision aside.^[323]

But he also pointed to reasons why the case might fail to overturn the exemption. Six of the current justices at that time had been part of a Court that had deniedcertiorari to recent cases challenging the exemption such asSan Jose andRight Field.^[324] Also,Alston had targeted a "quasi-exemption" aimed at preserving amateurism in college athletics by one previous decision, whereasFlood reaffirmed an exemption established in two earlier decisions and addressed to some degree by legislation. Lastly, Gorsuch's language inAlston may also have been meant to affirm how unique and special the baseball exemption is: "To this end,Alston and other cases which declined to extend the baseball exemption to other sports only serve to strengthen the baseball exemptioneven more." Ehrlich described this as the "better read" rather than an invitation to bring a case bringing down the exemption.^[325]

Blackmun's opinion was immediately unpopular among sportswriters such as Arthur Daley ofThe New York Times, who decried it as revealing "a total lack of logic".^[171] It has retrospectively been criticized by legal scholars as well, who are unhappy both with the rigid application ofstare decisis and with the continued exemptions received by baseball for its reputation as the "national pastime".^[326]

William Eskridge has referred toFlood v. Kuhn and the other cases in the "baseball trilogy" as "the most frequently criticized example of excessively strict stare decisis" among legal scholars.^[327] For Kevin D. McDonald, the case is both "indefensible as a matter of fact or policy" and "an embarrassment to the Court".^[328] Roger Ian Abrams, atNortheastern, wrote that the Court had "boxed itself in" by insisting on upholdingFederal Baseball inFlood despite acknowledging the different circumstances regarding those two cases.^[329] David Snyder went so far as to say that in arguingFlood, "the Supreme Court had completely lost sight of the factual, legal and conceptual underpinnings ofFederal Baseball".^[330] Morgen Sullivan notes that there is a contradiction in theFlood ruling, as the opinion explicitly states that baseball's antitrust exemption is limited to the reserve system, but ends by quoting a line inToolson that expands the exemption to "the business of baseball".^[331] Mitchell Nathanson, meanwhile, states that the Supreme Court "finally acknowledged the absurdity of Holmes' contention ... but then inserted its own absurdity when it concluded that the fact that baseball is engaged in interstate commerce was nevertheless irrelevant".^[332]

Some judges upholdingFlood have said they do so reluctantly, only out of duty to precedent, and have criticized it themselves. InCrist, after callingToolson "shaky" and questioning its divination of Congressional intent from its inaction, JudgeTjoflat called the Court's "beneath that consistency is a layer of inconsistency"^[201] defense of the baseball exemption inFlood "puzzling ... [T]he reasoning behind the present rule seems to be a rigid notion ofstare decisis, coupled with a hesitancy to render a decision that would operate prospectively only."^[333]

Of particular contention to scholars is the Court's assertion that Congress would undo baseball's antitrust exemption. Citing their previous inaction, Abrams argues that Congress had sufficiently demonstrated its refusal to act, leaving the matter to the Courts.^[334] William Basil Tsimpris has contrasted the application ofstare decisis inFlood with the Court's ruling inHelvering v. Hallock, in which it was stated that Congress was unlikely to take action on a precedent, giving the Court the burden of self-correction.^[335] For McDonald, the decision to leave baseball's antitrust status to Congress was a poor interpretation ofFederal Baseball, as Holmes never specified that legislation was the only pathway to undo his ruling.^[40]

In attempting to understand why MLB repeatedly enjoyed antitrust exemptions not afforded to other sports, scholars have largely targeted baseball's romantic reputation in American culture,^[336] as exemplified byFlood's Section I. Abrams wrote that Blackmun "may have confused thebusiness of baseball with the gloriousgame of baseball, thus explaining the sentimentality of Section I,^[200] which has been criticized as "rambling and syrupy", "juvenile", and even "bizarre".^[337] Savanna Nolan observed that even "the more serious elements of the opinion have a touch of ridiculousness" due to Blackmun's feelings towards the sport.^[338] Abrams also argued that Blackmun had likely usedLawrence Ritter's 1966 bookThe Glory of Their Times as his primary source,^[339] and showed how the careers of many of the players Blackmun listed had been impacted, often adversely, by the reserve system.^[340]

Stephen Ross takes a slightly more positive view, justifying Section I as a means "to establish the unique role that baseball plays in American culture", but nevertheless rationalizes that romantic picture influenced the Court's decision to exempt baseball from other business rules.^[341] Another commentator, Paul Campos of theUniversity of Colorado Law School, has defended it as a "trace of resistance to the hyperrationality of contemporary legal discourse". Blackmun, he wrote:^[342]

attempts to evoke the mysterious, inexplicable hold that baseball has on the core of American culture through a kind of prelapsarian naming of names that will both provide the uninitiated with insight into the special nature of baseball history, and represent a transrational justification for his—in the best sense—deeply conservative impulse not to tamper with the traditional social order of the game.

"IfFlood is seen ... as a decision grounded in a desire to adopt sound legal rules for sports leagues, Part I makes eminent sense", saysIllinois law professor Stephen F. Ross. He reads it as doing exactly that, countering critics who charge it with being an overly strict application ofstare decisis by showing how Blackmun and the other majority justices could reasonably, at that time, have been convinced that "contemporary antitrust doctrines would condemn many arrangements among owners that are arguably essential to baseball".^[343]

Blackmun himself acknowledged in 1987, that his colleagues on the Court had, as Burger and Douglas's opinions suggest, seen it as "beneath [our] dignity". But he expressed no regrets,^[344] save the discovery by hisclerks that, after the decision had issued, he had forgottenMel Ott. In his personal copy of the decision he penciled Ott's name in.^[345]

• 1972 in baseball
• Baseball law
• List of United States Supreme Court cases by the Burger Court
• Bosman ruling – 1995 European Court of Justice decision that allowed unrestricted free agency in the European Union

• Flynn, Neil F. (2006).Baseball's Reserve System: The Case and Trial of Curt Flood vs. Major League Baseball. Walnut Park Group.ISBN 0-9776578-0-9.
• John P. Morris,In the Wake of theFlood, 38Law and Contemporary Problems 85 (1973).

• Text ofFlood v. Kuhn,407 U.S. 258 (1972) is available from: CourtListener Google Scholar Justia Library of Congress Oyez (oral argument audio)

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