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June 10, 2013
Stuart Banner's "The Baseball Trust"
The Baseball Trust: A History of Baseball's Antitrust Exemption
Baseball's antitrust exemption is one of those semi-esoteric topics that rears its ugly head periodically in certain circles, typically when baseball gets involved in some controversy that pisses off a Congressperson. Steroids and team movement come to mind. The exemption is widely known to exist in those circles, but its history is shrouded in some semblance of mystery—people know the Supreme Court was somehow involved in its creation, that the NFL and NBA and NHL have no such exemption, and that Congress could take it away at the drop of a hat, assuming Congress can actually do anything, hat-drops or no, these days. Some of this is the age of the exemption (a 1922 Supreme Court case created/recognized it) and some the simple fact that law is hard and legal history even harder.
Fortunately, Stuart Banner, a legal historian who teaches at UCLA and whose list of books betrays that his particular corner of legal history is very much oriented toward property law but who has also written on the death penalty and securities regulation, wrote a book clearing the whole mess up. The Baseball Trust, despite its academic provenance and its academic press, is engaging and approachable and, though I say this as a lawyer who may have lost touch with what it means not to have a legal education, ought to be very readable by the layman.
Banner's main goal is the dispelling of myth, in particular the myth that baseball's antitrust exemption arose from the Supreme Court's misguided love for the game that caused it to be blind to the legal and factual reality of America. This myth arises, it seems, largely from the most recent major baseball case, Flood v. Kuhn, in which Justice Blackmun wrote a faintly embarrassing ode to the game, replete with an idiosyncratic list of 70-some-odd great players, great executives, and Stuffy McInnis. The die had, however, by this point long been cast. The truth is more banal: the "exemption" arose in a different legal (and political, and social, and technological, not that we can separate any of these) time, when the understanding of what power the federal government had was very different from the modern conception of the definition of "interstate commerce," the power to regulate which is the foundation of vast swaths of Congress's legislation, and in particular antitrust legislation.
The exemption, in other words, did not arise as an "exemption" from the antitrust laws but a decision that baseball did not operate in interstate commerce. Today, that looks silly—of course baseball operates in interstate commerce: we watch the games on the Internet!—and Banner freely acknowledges this to be true. Television and radio in particular changed our notion of whether baseball was local or national, but the "exemption" case was decided in 1922, and was not exactly controversial.
Banner traces the history leading into and out of that 1922 case, including, where necessary, proceedings and events happening in parallel in theater or other sports, showing at each step along the way how the events that came before led inexorably to this point. The overarching story of The Baseball Trust is how one decision, one moment, in our legal system of precedent and history, can affect laws and lives for decades to come. The law is replete with such stories; that baseball exists as a vehicle to tell it is fortunate if this book reaches the wider audience that I hope it will.
If I have a quibble, it's that I wished for more antitrust analysis, at least in the hypothetical. The history of baseball antitrust litigation is replete with the possibility that, had the case not settled or some other circumstances ensued, an application of the antitrust laws may have happened. In these moments, an attempt by Banner to crunch the doctrine and lay out the possibilities for how that analysis would have run may have added something. Banner, though, is a historian, not an antitrust scholar, and he may have felt it beyond his ken. Alternatively, the book may have suffered from such interruptions in the narrative flow. Antitrust law is scintillating stuff to some of us, but I can understand most people rolling their eyes as I suggest this. In any case, the book as it stands is a fantastic accomplishment and it doesn't need me around mucking it up.