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Eldon Ham: How The Great Baseball Oxymoron Undermines America

By Eldon Ham-

(CBS) One of the most absurd judicial cop-outs of all time is 40 years old on June 19, 2012: the red-letter day when the United States Supreme Court affirmed by a 5-3 Nixon-packed vote that the interstate multi-billion dollar game of major league baseball is not really a business in interstate commerce. Sort of. Meanwhile, the fallout still undermines faith and confidence in Washington, which is much more serious than a mere baseball aberration.

The Flood Court had initially observed just the opposite about baseball and business, then ruled against Flood anyway by refusing to overrule the oxymoronic antitrust exemption. When St. Louis star outfielder Curt Flood had been traded to Philadelphia in 1969, he sued, claiming that baseball was an illegal consortium of wealthy owners flaunting the otherwise powerful federal antitrust laws. Flood lost—not because he was wrong, but because he was too right. In 1972 the Court suggested that the baseball antitrust exemption, which was created by an equally bizarre 1922 ruling in Federal Base Ball v. National League, is both wrong and stupid, but it has been ridiculously wrong for so long that Congress should change it, not the Court. (Good thing the uninspired Flood Court hadn't been around for Plessy v. Ferguson or Brown v. Board of Ed.)

This antitrust fiction proved to be great for baseball owners and a problem for baseball players, but, above all, it is decidedly not good for America. We are supposed to be a democratic nation of laws, and we all want to believe in a fair shot from our judicial system. So it is not good for America when the highest court in the land fails to acknowledge that major league baseball, with its billion dollar owners, multi-million dollar players, and staggering television deals, is not an interstate business—especially since it has already ruled just the opposite for the NFL, NBA, and NHL.

No, Americans are not protesting in the streets over this court-fabricated baseball enigma. But most educated Americans are vaguely aware that baseball is somehow preposterously insulated from our near-sacred antitrust laws that have already been applied to the old Standard Oil trusts, Microsoft, and even today's NFL, and that this both wrong and delusional. Delusion is not a good trait for any high court. Therefore, when the Supreme Court actually elects our president, particularly the candidate with fewer votes, it's just par for the course for many Americans who already believe that the Court will make up whatever it feels like to satisfy the whims of the day—like the separate but equal doctrine, the Florida hanging chad ruling, or the Court's persistent detour from baseball reality where the national pastime is still not regarded as an interstate business.

Leaving something up to Congress is like officially sending Godot to purgatory. Game over. Meanwhile, the antitrust exemption is embarrassing. It is low hanging fruit for anyone, domestic or foreign, looking for new ways to laugh at America and mock our alleged rules of law.

Not many really care that baseball is exempt from antitrust perhaps partly because too few still care at all anymore. And that's a lot to care about. Too many Americans gave up on justice somewhere between Nixon's Watergate and Clinton's Monica-gate. For the rest, the last straw may have been on December 12, 2000, when the Supreme Court decided to elect a president by snubbing a plethora of absentee ballots and hanging, dimpled, pregnant chads to stop the Florida vote recount.

No, the baseball antitrust exemption is not the most pressing issue for a nation drowning in debt with a deadlocked Congress, but confidence and faith in at least some part of our government is crucial. It's too late for the Supreme Court to right the ridiculous wrong stemming from Curt Flood since it needs an active live case to do so; but Congress could still do it.

We cannot get Congress to agree on budgets, taxes, health care, or even evolution, but maybe it could at least agree on one of the most American of all institutions: baseball. Yes, in 1998 the Curt Flood Act was passed to give certain antitrust protection for players, but that was a hollow effort since (a) the players' union still technically exempts the game from labor antitrust issues anyway, and (b) it still leaves the owners free to conspire against each other, the entire business world, and all the fans. At this point, perhaps some kind of bona fide agreement across the aisle, especially one that fixes a great legal fiction, might just bolster a little confidence in the sanity of Washington.

Curt Flood got screwed by baseball, the Supreme Court, and politics. Where he was concerned, maybe the fictional Annie Savoy from the iconic baseball film Bull Durham got it right: "… bad trades are part of baseball - now who can forget Frank Robinson for Milt Pappas, for God's sake?" But for the rest of us, the Curt Flood fiction is an affront to law and common sense that undermines America. If Washington can't even get it right on baseball, how can we ever have faith in the budget process?

Eldon L. Ham is a member of the faculty at IIT/Chicago-Kent College of Law where he has taught Sports, Law & Society since 1994 and won the Distinguished Service Award in 2010. He is also the designated legal analyst for WSCR Sports Radio in Chicago, the three-time past chair of the Chicago Bar Association Law & Literature Committee, and the author of four books on topics of sports history including the newest release Broadcasting Baseball: A history of the national pastime on radio and television (a 2012 finalist for the ForeWord Magazine Book of the Year Awards). He has been nationally quoted in such venues as the New York Times, USA Today, Business Week,, Chicago Sun-Times, Washington Post, and many more, and his articles have been published by the New York Times, Harvard University Sports Law Journal, Street & Smith Sports Business Journal, Chicago Tribune, Philadelphia Inquirer, Baltimore Sun, St. Louis Post Dispatch, Cincinnati Enquirer, Trial Magazine, Seton Hall Sports Law Journal, Marquette Sports Law Review, and others. Mr. Ham graduated from the University of Illinois—Urbana and Chicago-Kent College of Law, then practiced law in Chicago for 35 years, often representing scores of athletes, agents, and sports entrepreneurs. For additional background, please visit

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