RECAP: “Baseball, Law, and Society” Lock-In

With baseball locked out, and with Columbians locked in at home due to snow, a trio of presenters took to Zoom for the Friday, February 4 installment of the Colloquium Series to speak on the nation’s pastime, from its early days to its present state.

“Unwritten Rules: Flood v. Kuhn at 50”

“It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

—Oliver Wendell Holmes, The Path of Law (1897)

And yet, as Kinder Institute Associate Professor and MU Law Wall Family Fellow Tommy Bennett made clear throughout his portion of the talk, it is in this blindly imitative state that baseball finds itself today, at the golden anniversary of the landmark Flood v. Kuhn Supreme Court case. To get to Flood requires first going through Federal Baseball Club v. National League (1922), where the high court, drawing on a consistent-with-its-time interpretation of the Constitution’s Commerce Clause, unanimously decided in favor of the league, reversing an initial ruling that found Major League Baseball (MLB) guilty of conspiring to monopolize the sport and, in doing so, deeming MLB exempt from antitrust regulation under the Sherman or Clayton Acts. The grounds? In spite of players crossing state lines to compete, the actual games, Holmes argued in his majority opinion, were purely local affairs and thus outside of Congress’ purview when it came to regulating interstate commerce.

Fast-forward to Flood and what was being challenged was Paragraph 10a of MLB’s Uniform Player Contract, better known as the Reserve Clause, which held that if a team and player don’t agree on terms of a new contract, the club has a right to renew the player’s deal for a period of one year on the same terms as the prior season. The prevailing view (though certainly not the only one) was that this functionally gave teams a perpetual option on players’ services, so when Curt Flood, a defensive revelation in center and a fixture in the St. Louis community, approached the Cardinals after the 1969 season looking for a $100,000 contract, the front office traded him to the Phillies rather than concede. Flood refused the trade and filed suit against the league, its then Commissioner Bowie Kuhn, and all 24 teams, on the grounds that his inability to negotiate with other teams until his one-year team option expired (also per the Reserve Clause) violated the Sherman Act’s protection against restraint of trade.

Flood lost, but as Prof. Bennett pointed out, the terms of the loss are somewhat indefensible and confounding: one might even say revolting. For one, during the New Deal, the Court’s interpretation of the Commerce Clause shifted dramatically, un-narrowing itself to include pre-commercial activities and indirect economic impact as subsumable under interstate commerce and thereby squarely within Congress’ regulatory jurisdiction. With this, Federal Baseball Club found itself disconnected from its times, and as Flood’s case wound its way through the court system, jurists had no option but to acknowledge this. As Justice Jerome Frank of the 2nd Circuit Court of Appeals noted, given recent Supreme Court decisions, Federal Baseball Club was an “impotent zombi[e].” Precedent, however, nonetheless prevailed, both at the 2nd Circuit and the Supreme Court, where Justice Harry Blackmun, one of a new wave of justices appointed by Nixon, relied almost entirely on the common law doctrine of stare decisis in his majority opinion, surrendering curiously and unnecessarily to the idea that questions decided by previous courts should be decided similarly in the future, regardless of how inconsistent those decisions might be with evolving interpretations of the law. Amazingly, Prof. Bennett added, Blackmun somehow managed to contradict Federal Baseball Club even in upholding it.

Months before the ruling in Flood, the Major League Baseball Players Association struck for the first time in league history, emerging from the labor strife victorious in so far as the reserve clause was replaced by an independent process of arbitration, ultimately paving the way for modern free agency. This change alone would lead one to believe that Flood is due to be revisited, and the antitrust exemption due to be overturned, a conclusion only compounded by the fact that the Roberts Court has become increasingly interested in hearing cases that ask it to overrule precedent, including the one established in Roe v. Wade, a year prior to Flood v. Kuhn. Baseball, though, remains mired under the heavy hand of Henry IV.

“Proposing Policy: Where Baseball Can Begin”

In September, first-year MU Law Student Alexis Brudnicki went to MLB headquarters in New York to present her proposal for how the league could—and how and why it must—improve its procedures for reporting, investigating, and ruling in cases of sexual harassment and violence in the workplace. The proposal, which lays out research on reforms in other industries that MLB could utilize to unwind its own inefficiencies, consists of four key components that all combat the power imbalance that currently exists for women in baseball.

  1. Addressing Policy Gaps: Freelancers—journalists, statisticians, and much more—make up a sizable portion of the workforce that orbits and sustains professional baseball, but their lack of official affiliation with the league leaves them largely unprotected. They have no HR department; they have no bosses who are attached to any of the entities where the problems they encounter are coming from. New policies must be drawn up, then, to ensure that women beat writers for The Athletic, for example, have a place to go when they are harassed on the job. Brudnicki added that, while the question of “where to go” is clearer for league employees, women who experience sexual misconduct still face the problem of being in an environment where they are a significant minority and where everyone is constantly scared for their jobs.
  2. Pathways to Victim Assistance: As part of the process of addressing policy gaps, Brudnicki proposed to the league the creation of an ombuds program, which, whether embedded in or independent from MLB, would let people coming forward with reports of sexual harassment and violence know that there was an office devoted to defending their interests.
  3. Education: At all levels—from scouts, to staffers, to players, to members of the front office—the league would benefit mightily from robust training in, for example, bystander intervention. Climate surveys could determine exactly where and what forms of training are most needed, and league officials committed to such surveys when Brudnicki met with them, though it warrants mention that these surveys have yet to be implemented.
  4. Advocacy for All Reporters: Reporters of sexual harassment and violence might be confident they understand how the process works. They might know people involved and know the facts are on their side. They might anticipate—and receive—a favorable outcome, and yet the entire experience is still stressful and demeaning. In a 100-day trial, a reporter might not get a lawyer until day 90. The fear that comes with occurrences like this—the fear that what is promised might vanish according to the whims of a disinterested bureaucrat—would at least be mitigated by a clear chain of advocates who work with reporters at every step in the process.

“The Negro Major Leagues and the Kansas City Black Community, 1920-1948”

Over 10,000 people—Boy Scouts troops, Elks Lodge members, to say nothing of droves of regular fans—turned out for opening day of the Kansas City Monarchs’ 1923 season. The city’s mayor, Frank Cromwell, threw out the first pitch (“somewhere near the plate”) to the mayor of Kansas City, Kansas. On some level, this might keep perfectly with our Norman Rockwell vision of baseball. But as MU History Ph.D. Candidate Japheth Knopp noted in painting this scene, it should be treated as anything but familiar. Here were two white mayors ceremonially kicking off the start of the Negro League season at least a decade prior to when traditional historical narratives tell us that Democratic politics and politicians started coming into, and appealing to, African American communities. Why Kansas City?

As Knopp explained, K.C. was uniquely ahead of what we might consider a traditional historical timeline. Many late-1870s Exodusters stopped in Kansas City instead of heading further west into the plains, finding employment in major industries—railroads, meatpacking, smelting—that were open to hiring Black men. This meant, on one hand, that the city had a substantial African American population before The Great Migration. It likewise meant that economic vitalization had already begun in African American communities by World War I and, in turn, that K.C. didn’t experience the racialized labor strife of the 1920s to anywhere near the extent that other urban centers did.

When talks to start the Negro National League were being planned, Kansas City, with its flourishing Black business district at 18th and Vine, was a natural host site. Kansas City, too, was a natural home for a team, and the Monarchs, founded in 1920, became a centerpiece, culturally and economically, of the African American community in the city. It was also at this time that the Kansas City Call first went to print, rapidly establishing itself as one the largest, most successful Black-owned newspapers in the nation (and the largest Black-run business in the Midwest). The Call celebrated commerce, education, and desegregation, and denounced crime in the community, but as Knopp noted, its sports section played a particularly fascinating part in the paper’s politics. Because of the Monarchs’ popularity, reporters followed players to the spots around the Western Hemisphere where they moonlit during the off-season, sending stories home from Mexico or the Dominican Republic about social life in already de-segregated states. Of course, these reporters also were there for Spring Training in Georgia, where Klansmen showed up at the ballpark gates…

For more on baseball and Kansas City during the reign of the Pendergast Machine and in the wake of Jackie Robinson breaking the color barrier, visit the Kinder Institute YouTube page, where a recording of the talk can be found.