There Are Signs MLB’s Antitrust Exemption is Nearing Extinction (part 2 of a 2-part series)
“There is no industry like baseball in our country. It has special status as a monopoly, and it is completely unregulated. Right now baseball exploits the hell out of the cities.”
— Andrew Zimbalist, American economist and Robert A. Woods Professor of Economics at Smith College.
“The initial rationale for the baseball exemption was probably not good law in 1921, when the Supreme Court ruled that the antitrust laws did not apply to baseball because baseball was not engaged in interstate commerce.”
— Roger Noll, American economist and emeritus professor of economics at Stanford University.
By Ken Reed
The special treatment MLB receives in the form of its antitrust exemption allows a small group of wealthy owners, who may or may not care about baseball beyond an economic perspective, to control a major cultural practice (indeed one historically called “the national pastime”) as they see fit.
Former MLB commissioner Fay Vincent said baseball should lose its exemption if the owners significantly dilute the commissioner’s traditional powers to act in the best interests of the game. Well, the owners didn’t like that. They decided they wanted a puppet they could control as commissioner. They fired Vincent for acting too independently. As he was shown the door, Vincent said he was just operating in “the best interests of baseball.”
The best interests of the game are not the top priority of baseball owners as long as their government-sanctioned cartel is allowed to continue. For owners of businesses in other industries, neglecting stakeholder groups’ needs, wants and expectations means eventual death – usually sooner rather than later.
2022 is the 100th anniversary of baseball’s antitrust exemption. For the first 50 years, with a few minor exceptions, baseball owners had an ironclad hold on the monopoly status given them via the antitrust exemption. However, 50 years ago there were signs that owners might not be able to keep the exemption forever.
In 1972, the Supreme Court took on the Curt Flood case (Flood v. Kuhn). In Flood, the Court stated what was obvious to so many legal and business observers, specifically that “professional baseball is a business, and it is engaged in interstate commerce.” Nevertheless, the Court ultimately upheld baseball’s antitrust exemption.
Ironically, it is a recent college athletics case that might be the impetus for eliminating MLB’s antitrust exemption. In NCAA v. Alston, the Supreme Court reached a 9-0 decision to uphold a ruling by the U.S. Court of Appeals for the Ninth Circuit that struck down NCAA caps on student-athlete academic benefits on antitrust grounds.
In Alston, Justice Neil Gorsuch, writing for the Court, addressed MLB’s exemption. He called it “unrealistic, inconsistent, and aberrational.” In his opinion, Gorsuch suggested that legislators address the problem with MLB’s antitrust exemption. But he also hinted that the Court could decide to abolish the Court’s MLB antitrust exemption if legislators continue to pass on the issue.
Eventually, the 100-year-old mistake that is baseball’s antitrust exemption will be fixed, either by Congress or the Supreme Court.
After watching how the owners operated in the recent lockout, the fix can’t come soon enough.
— Ken Reed, Sports Policy Director, League of Fans
Sports Forum Podcast
Episode #29 – League of Fans’ Sports Forum podcast: The Honorable Tom McMillen Visits League of Fans’ Sports Forum – McMillen is a former All-American basketball player, Olympian, Rhodes Scholar and U.S. Congressman, and has a long involvement with the President’s Council on Physical Fitness and Sport (now called the President’s Council on Fitness, Sports and Nutrition). We discuss the state of college athletics today, given the pressures of NIL, the transfer portal, sports gambling and huge media contracts. McMillen then provides great perspective on the poor state of physical fitness our young people are experiencing today.
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Episode #28 – League of Fans’ Sports Forum podcast: A Chat With Mano Watsa, a Leading Basketball and Life Educator – Watsa is President of PGC Basketball, the largest education basketball camp in the world. We discuss problems in youth sports today.
Episode #27 – League of Fans’ Sports Forum podcast: Kids’ Sports: How We Can Take Back the Game and Restore Quality Family Time In the Process – Linda Flanagan is author of “Take Back the Game: How Money and Mania Are Ruining Kids’ Sports and Why It Matters.” We discuss how commercialized and professionalized youth sports are hurting kids and their families.
Episode #26 – League of Fans’ Sports Forum podcast: How Can We Fix Youth Sports? – John O’Sullivan is Founder and CEO of Changing the Game Project and author of “Changing the Game: The Parents Guide to Raising Happy, High Performing Athletes and Giving Youth Sports Back to Our Kids.”
Episode #25 – League of Fans’ Sports Forum podcast: Physical Education Should Be a Critical Component of K-12 School Design – Michael Horn is co-founder of the Clayton Christensen Institute for Disruptive Innovation.
Episode #24 – League of Fans’ Sports Forum podcast: Mental Health and Athletes: Ending the Stigma – Nathan Braaten and Taylor Ricci are the founders of Dam Worth It, a non-profit created to end the stigma around mental health at colleges and universities through sport, storytelling, and community creation.
Media"How We Can Save Sports" author Ken Reed appears on Fox & Friends to explain how there's "too much adult in youth sports."
Ken Reed appears on Mornings with Gail from KFKA Radio in Colorado to discuss bad parenting in youth athletics.
“Should College Athletes Be Paid?” Ken Reed on The Morning Show from Wisconsin Public Radio
Ken Reed appears on KGNU Community Radio in Colorado (at 02:30) to discuss equality in sports and Title IX.
Ken Reed appears on the Ralph Nader Radio Hour (at 38:35) to discuss his book The Sports Reformers: Working to Make the World of Sports a Better Place, and to talk about some current sports issues.
- Reed Appears on Ralph Nader Radio Hour League of Fans’ sports policy director, Ken Reed, Ralph Nader and the New York Times’ Tyler Kepner discussed a variety of sports issues on Nader’s radio show as well as Reed’s updated book, How We Can Save Sports: A Game Plan. Reed's book was released in paperback in February, and has a new introduction and several updated sections.
League of Fans is a sports reform project founded by Ralph Nader to fight for the higher principles of justice, fair play, equal opportunity and civil rights in sports; and to encourage safety and civic responsibility in sports industry and culture.
Vanderbilt Sport & Society - On The Ball with Andrew Maraniss with guest Ken Reed, Sports Policy Director for League of Fans and author of How We Can Save Sports: A Game Plan
Sports & Torts – Ken Reed, Sports Policy Director, League of Fans – at the American Museum of Tort Law
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Ken Reed’s Author Page on Amazon