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Take me out to the courthouse

SbannerhedshotUCLA professor Stuart Banner teaches property law as well as the law school’s Supreme Court Clinic and has clerked for former Supreme Court Justice Sandra Day O’Connor. Banner is also a lifelong baseball fan, who uses cases involving baseball in his teaching as stark examples of the court sticking with precedent even though everyone agrees that the issue would be decided differently today.
 
Banner has written eight books about topics ranging from the death penalty to the struggle to control airspace since the Wright brothers took to the skies. In his latest book, "The Baseball Trust: A History of Baseball’s Antitrust Exemption" (Oxford University Press, 2013), he examines the history of baseball through its important court cases. Banner, who as a 5-year-old went with his dad to watch the Mets take on the Orioles in the 1969 World Series, maintains that those who long for a return to the more innocent days of our national pastime might be surprised when they read about the game’s litigious history.
 
What team did you grow up rooting for? What’s your favorite team now?
 
I grew up rooting for the Mets, and I’m still a Mets fan. When our kids were born, we lived in St. Louis, and we took the kids to Cardinals games, so I became a Cardinals fan too. And now I’ve been at UCLA for 12 years, and we’ve been taking the kids to Dodgers games, so I’m a Dodgers fan too. That’s three teams — all in the National League — but at least they’re all in different divisions.
 
 
Why did you want to write this book?
 
Baseball’s exemption from antitrust law is something that is well-known to sports fans, because it’s mentioned in the media a lot. It always struck me as a puzzle: Why does baseball have this legal advantage over other sports? I wrote the book because I wanted to figure out how this situation came to be.
 
 
What do you think about baseball’s exemption from antitrust law?
 
It doesn’t make any policy sense. If baseball deserves an exemption, so do the other sports. If the other sports should be subject to antitrust law, so should baseball. The exemption can only be explained as a historical artifact — the outcome of a series of court decisions and strategic decisions by baseball’s lawyers.
 
 
How has baseball’s exemption from antitrust law worked to its advantage?
 
For much of the 20th century, baseball’s exemption shielded the reserve clause from antitrust attack. The reserve clause was a standard term in player contracts that, in effect, bound the player to the team for his entire career. Teams could trade or cut players, but players could not sell their services to the highest bidder. That ended in the 1970s with the advent of free agency. But baseball still receives advantages from the antitrust exemption. The two most important are: (1) baseball can prevent teams from changing cities, a practice that would likely violate antitrust law if antitrust law applied to baseball; and (2) baseball can operate its minor leagues, which have a structure that would be susceptible to antitrust challenge if antitrust law applied.
 
 
How has baseball’s exemption made it different from the other leagues?
 
These days, the main difference is that the other sports leagues can’t prevent teams from changing cities. For example, when the Rams moved from L.A. to St. Louis, the NFL at first tried to stop the move. But the league backed down when the Rams threatened an antitrust suit. In the past 40 years, only one baseball team has changed cities — the Montreal Expos became the Washington Nationals. During that same period, football has seen seven moves, basketball has seen eight (not even counting the Nets, who have moved twice within the New York metro area), and hockey has seen nine.
 
 
Baseballtrustbookcover2Which case do you think had the most impact on how fans view or interact with the game?
 
The most well-known of the Supreme Court’s baseball antitrust cases is Flood v. Kuhn, because it is the most recent (from 1972), and because it is the only one that involved a star player (Curt Flood, who was one of the best outfielders of the 1960s). Flood had been traded from the Cardinals to the Philadelphia Phillies, but he wanted to decide for himself which team he would play for. He sued Bowie Kuhn, the commissioner of baseball, and alleged that the reserve clause (which required him to play for the Phillies) violated antitrust law. But the Supreme Court once again reaffirmed that baseball is exempt from antitrust law.
 
 
How long did it take you to write the book?
 
Two or three years. One of the best things about the process was getting to do research at the Baseball Hall of Fame in Cooperstown, which has an excellent research library with lots of manuscript collections from early baseball officials. [The research center] is just one room, so you end up talking to the other people. One day I was working next to Babe Ruth’s granddaughter and her husband, who were writing a play about Babe Ruth. The archivists brought out one of Ruth’s bats — it was enormous, much thicker and heavier than any other bat I had ever seen. 
 
The archivists think that Ruth only used it in batting practice, because it would have been so hard to use it in a game. Another day, I met a woman who had played in the All-American Girls Baseball League, a women’s league that existed for about a decade in the 1940s and 1950s (it’s the league depicted in the movie, "A League of Their Own"). Her family had brought her there to see if they had any news clippings from her playing career, and they did — they brought out a big folder of clippings.
 
 
What kind of reaction have you received thus far?
 
Usually my books are only reviewed in academic journals. When the New York Times review came out, I started getting emails from all sorts of people I hadn’t been in touch with for years. It was like a substitute for Facebook.
 
 
Did anything surprise you when researching and writing the book?
 
Here’s something I found in some unpublished court transcripts in the archives at the Hall of Fame. In the first serious antitrust suit against baseball, filed in 1915 by a competing league called the Federal League, the judge simply sat on the case, and did nothing for an entire year until the Federal League ran out of money and had to settle with baseball. Only then did the judge admit to the lawyers on both sides that he had intentionally refrained from deciding the case because had he decided, he would have found that baseball was violating antitrust law, and he didn’t want to harm baseball. The judge was named Kenesaw Mountain Landis. A few years later, the grateful team owners made him baseball’s first commissioner.
 
 
What do you think baseball fans would find most surprising in the book?
 
With all the stories in the news about legal disputes and squabbles over money, baseball fans are sometimes nostalgic for an earlier era they imagine was less litigious and less money-focused. But one message of the book is that players and team owners were arguing over money, often in court, from the 1870s on.