How Justice Stevens Changed Baseball

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Justice John Paul Stevens officially retires from the Supreme Court today, after a near record tenure of almost 35 years that began in December 1975 under President Gerald Ford. We will leave it to other departments to calculate Justice Stevens's judicial batting average over his long career. But we can't resist noting that his appointment came about in so distant a political universe that the New York Times was then saluting President Ford's new chief of staff Dick Cheney for his "unusually high reputation for competence and skill."

Getting back to the business at hand, The New York Times recently reported that, when not engaged with such trivial matters as civil rights, or capital punishment, or executive power in time of war, the Justices of the Supreme Court, display a "sometimes fanatical devotion to baseball." It is especially appropriate that notice is being taken, to quote the Times again, of the "intense devotion to the national pastime at the Supreme Court" as Justice Stevens prepares to leave the Court. Not because Justice Stevens is an ardent Cubs fan who was at Wrigley Field the day Babe Ruth either called--or did not call--a home run shot in the 1932 World Series, but because Justice Stevens may claim to hold his own place in the history of the national pastime.

In 1951, the future Justice Stevens was a young antitrust lawyer in Chicago when he was tapped to serve as associate counsel to the Monopoly Power Subcommittee of the House of Representatives' Judiciary Committee by Edward H. Levi, who was the dean of the University of Chicago Law School and serving as Chief Counsel to the subcommittee. (It was not the last time that Levi would steer Stevens's career path. A quarter-century later, as President Ford's Attorney General, Levi would be instrumental in securing Stevens's nomination to the Supreme Court.) Among the industries targeted for congressional investigation--along with such glamorous headline-grabbers as newsprint, paper pulp, and aluminum--was organized baseball.

The inquiry had been triggered by baseball's own request for legislation to codify and immunize from any future judicial attack the antitrust exemption that the Supreme Court had extended in 1922. That year, the Supreme Court, in an opinion written by the usually, but not invariably, great Oliver Wendell Holmes Jr., ruled that professional baseball was not subject to federal antitrust law because the sport was not engaged in interstate commerce. Although Holmes recognized that professional baseball teams obviously traveled across state lines to play out their schedules, he reasoned that such travel was incidental to the playing of the games themselves, which were local affairs, conducted within the borders of a state.

Holmes thereby provided the legal--or perhaps more accurately the extra-legal--framework for the entire development of organized professional baseball thereafter. Although the case decided by Holmes involved a clash between two rival baseball leagues, the most notable effect of that decision was to bar players from mounting challenges under antitrust law to the "reserve system" under which major league teams agreed to respect each other's right to a perpetual claim on the services of its players and not engage in competitive bidding for playing talent.

Thirty years later it could hardly be doubted that, as baseball's own executives privately acknowledged, "professional baseball... is BIG BUSINESS." And the sport's ruling councils plainly feared that courts might revisit that ruling in light of present day economic realities. So beginning on July 30, 1951 and continuing into the fall, the top officials of the national pastime found themselves on a congressional hot seat that was more usually occupied with accused Communists, mafiosi, and labor racketeers. The 1950s would be without parallel as the decade of congressional investigations, which with the advent of television provided something of a new national pastime, and the other national pastime's own "grand inquest" was now at hand.

As curious crowds thronged the Capitol amidst a crush of reporters and newsreel cameras, a diverse lineup of baseball notables took the witness table, including major and minor league officials, team owners, ball players, even sports writers, and associate committee counsel Stevens was asking many of the questions. Not always with success in getting clear answers, as press accounts of his persistent pursuit of a characteristically elusive Branch Rickey show. And Stevens also had to confront a rather forthright rebuke from one witness: sports columnist Red Smith insisted "that in these times I think there are graver matters. I think there are more pressing matters to deal with." Perhaps relieving any frustration and sting from such encounters, Stevens did have the chance to engage in a more amicable interchange with Phil Wrigley, owner of his own beloved Cubs.

Associate counsel Stevens also played a role in the one piece of intrigue that surfaced during the hearings. Someone had leaked to the Committee an apparent copy of an internal baseball "Steering Committee Report" from 1946 that expressed concerns about the legality and enforceability of the reserve clause. Stevens participated in the effort to secure confirmation of the existence of the report and production of a copy. After some back and forth, organized baseball produced the report which indeed contain those observations. What passed unremarked, however, in the congressional committee's deliberations, was a portion of the report that has attracted the most attention in recent decades. That was a section entitled the "Race Question," which revealed considerable discomfort, to say the least, among the sport's top executives with the impending integration of major league baseball the year before Jackie Robinson's rookie season with the Brooklyn Dodgers.

The 1951 hearings proved to be a turning point in the history of American sports. They had a more enduring impact than the much better remembered piece of that year's baseball history: Bobby Thomson's "shot heard round the world" that won the 1951 National League pennant playoff for the New York Giants. Never before had the business of a major league sport become the lead story on the nation's sports pages, spilling over, indeed, onto the front page. The business of sports had become, and ever after would be, the public's business as well.

And that year's hearings proved just the prelude to a continuing congressional inquiry into the baseball business. By decade's end, Casey Stengel, Mickey Mantle, Ted Williams, Bob Feller, Jackie Robinson, Hank Greenberg, Walter O'Malley, and Horace Stoneham had joined the ranks of baseball notables taking seats at a congressional hearing table. How baseball responded to the challenges highlighted by the issues raised by Congress would define the future contours of the sport, and determine whether, and how, baseball would retain its claim to the "national pastime."

Along with the public testimony, the committee, its counsel, and its staff amassed and analyzed a wealth of never before available internal documentation on a broad range of subjects including team income, profits and loss, player contract rules and policies, plans (or more particularly lack of same) for territorial expansion, relations between the major and minor leagues, and even the sport's racial politics. Without the record compiled by the Committee it would simply be impossible to write a well-grounded history of the business of baseball--and anyone who tries (as I can personally testify) is heavily indebted to the committee, its counsel, and its staff. In fact, the Report on "Organized Baseball issued by the subcommittee after the conclusion of the hearings remains the best overall study of the economic and legal structure of the sport from its late nineteenth century origins through the middle of the last century.

When it came to summing up its investigation, the Celler Committee rendered something of a split decision. On the one hand, the Committee's report concluded:

[T]he overwhelming preponderance of the evidence established baseball's need for some sort of reserve clause. Baseball's history shows that chaotic conditions prevailed when there was no reserve clause. Experience points to no feasible substitute to protect the integrity of the game or to guarantee a comparatively even competitive struggle. The evidence adduced at the hearings would clearly not justify the enactment of legislation flatly condemning the reserve clause.

On the other, the Committee also concluded that Congress should not enact the legislation proposed by organized baseball to give it and other professional sports complete immunity from the antitrust laws. And Congress did not.

But in the mysterious ways that the law can operate, Congress's failure to act would become the basis for the Supreme Court's repeated unwillingness to set aside baseball's antitrust exemption originally conferred by Justice Holmes in 1922, even as the Court determined that no other professional sport (including football in a 1957 ruling, Radovich v. National Football League) was entitled to the same immunity. And among Justice Stevens's final opinions was a ruling a few weeks ago (American Needle, Inc. v. National Football League) that the National Football League's' monopolistic marketing arrangements for team logo apparel was subject to scrutiny under antitrust law standards. When it came to baseball, however, the Supreme Court ruled first in 1953 and then in 1972, that it was up to Congress to overturn a precedent upon which the baseball business had relied for so long. It was only an arbitrator's ruling in 1975, not a judicial decision, that effectively ended the reserve system, allowing players to become free agents

That 1972 decision, barring St. Louis Cardinal outfielder Curt Flood's challenge to the sport's reserve system that granted teams control over their players for the life of their careers, was written by Justice Blackmun who cited the Celler Committee's Report's blessing of the reserve clause in his opinion. The Flood case reached the Supreme Court just a little more than three years before Justice Stevens's appointment. It would have been interesting had he made it to the Court in time to rule on it.

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Henry D. Fetter is the author of Taking on the Yankees: Winning and Losing in the Business of Baseball and has written widely about the business and politics of sports. More

Henry D. Fetter is the author of Taking on the Yankees: Winning and Losing in the Business of Baseball (WW Norton). He has written about the business and politics of sports, the American left, Jewish and Israeli history, and legal affairs for publications including the New York Times, Wall Street Journal, the Times Literary Supplement, the Journal of Sport History, Israel Affairs, The Public Interest, American Communist History, The National Pastime, and the Encyclopedia of American Jewish History, and his work has appeared in several baseball history anthologies.

His article "Revising the Revisionists: Walter O' Malley, Robert Moses and the End of the Brooklyn Dodgers" was awarded the Kerr History Prize for the best article published in 2008 in the journal New York History; an earlier version of that article was presented at the Columbia University symposium "Robert Moses: New Perspectives on the Master Builder" (March 2007) and received a McFarland-SABR Baseball Research Award. He is the recipient of research grants from the Society for American Baseball Research and the Harry S. Truman Library Institute.

Fetter is a graduate of Harvard Law School and also holds degrees in history from Harvard College and the University of California, Berkeley. A native New Yorker, he attended his first major league baseball game at Brooklyn's Ebbets Field on Memorial Day 1955 and some years later followed the Dodgers to Los Angeles where he has practiced business and entertainment litigation for the past 30 years.
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