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In 1903, the American and
National Leagues united to form Major League Baseball (“MLB”). By agreement among the team owners, player contracts included a “reserve clause,” binding
players to the same team throughout
their careers—unless they were traded
or released. In 1914, a separate group of owners established the Federal League
and offered higher salaries to its players without the “reserve clause.” Struggling
for survival, owners in the Federal League sued MLB, contending that the clause in the contracts binding the MLB players to one team throughout their careers violated the Sherman Antitrust Act by limiting competition for their services. MLB offered a settlement which satisfied all but the owner of the Baltimore Terrapins. The Terrapins persisted in their claims all the way to the United States
Flood, who in late 1969 had been traded
to the Philadelphia Phillies. Baseball Commissioner Bowie Kuhn upheld the trade. Flood sued the Commissioner, asking the Court to overrule its earlier decisions. He also lost on appeal. Even though the Supreme Court has over the years applied the antitrust laws to other sports, such as professional boxing, the National Football League, and the National Basketball Association, baseball is technically protected to this very day. The majority opinion in Flood v. Kuhn was written by Justice Harry Blackmun, who, incidentally, authored the landmark decision in Roe
v. Wade one year later. Section I of the Flood opinion, an introduction titled “The Game,” paid tribute to the rich history of America’s game, laying the groundwork for the decision by the Court. Blackmun
Supreme Court. In 1922, legendary Justice Oliver Wendell Holmes, Jr. wrote for the majority, ruling against the Terrapins and giving deference to our “national pastime,” holding that “personal effort not related to production, is not a subject of commerce, and, therefore, not a violation of the Antitrust Act.”
Berg’s  ndings ultimately reached the desk of President Roosevelt. In a conversation with the CIA Director, FDR remarked: “Give my regards to the catcher.”
even made reference to the poem “Casey at the Bat” and the famous double play refrain “Tinker
to Evers to Chance.” Finally, he named a total of eighty-three players, managers, and owners, all prominent in the early years of the sport and almost all of whom were long ago enshrined in Cooperstown’s Baseball Hall of Fame.
One of the players included on the Blackmun list raised more than a few eyebrows. Even the most knowledgeable fans
The reserve clause has
survived two subsequent
challenges. In 1950,
pitcher George Toolson
filed suit against the talent
laden NY Yankees who had reassigned him to the minor leagues rather than allowing him to sign with another team. Applying the doctrine of stare decisis, a principle of law encouraging consistency in decision making, the Court ruled against Toolson on the basis that Congress, since the Federal League opinion, had chosen not
did not recognize the name Moe Berg—a weak hitting, backup catcher for his entire major league career. His statistics were unimpressive. Between 1923 and 1939, Berg played with five different teams, compiling a lifetime batting average of only .243. He was thirty before he hit his first home run. In 1933, his Washington Senators won the American League Pennant. Berg sat on the bench and watched throughout the five- game World Series. Nevertheless, in the following spring, Berg was included among a team of All-Stars, including the likes
of Babe Ruth, Lou Gehrig, Lefty Gomez, and Jimmie Foxx, on an exhibition tour
to amend the antitrust law by extending its provisions to baseball players. Toolson, who spent sixteen years in the minors, not only lost his case but never played in a major-league game.
The second suit involved the St. Louis Cardinals’ star center fielder Curt
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