The Battered Bastards of Antitrust Law

The Battered Bastards of…

If you like a good baseball movie (that coincidentally raises interesting legal issues), The Battered Bastards of Baseball is well worth watching. It is a 2014 documentary that tells the story of how Bing Russell created the only independent baseball team in America at that time in 1973. Bing Russell was a former ball player turned Hollywood actor (best known

for playing Deputy Clem on “Bonanza”) and also incidentally Kurt Russell’s father.

[Source: Library of Congress]

Described as “one of baseball’s last great, unheralded true stories,” the movie tells the true story of the Portland Mavericks, a (now defunct) minor league baseball team in Portland, Oregon without a Major League affiliation, that successfully played in a city that was previously considered a wasteland for professional baseball.

The Battered Bastards of Baseball makes clear that Bing Russell was no fan of Major League Baseball and that the league was no fan of his. In the words of one reviewer: “The Battered Bastards of Baseball is as much about the independent spirit as it is about baseball. The Mavericks’ in your face attitude was contagious to fans, and during their short reign, they - and Bing Russell - basically held up their middle finger to the sports establishment and said we’re playing this game on our terms, not yours. They were the real life Bad News Bears.” Id. (emphasis added).

Tryouts for the Mavericks were open to the public, and drew in crowds of hopefuls from across America, many of whom had been previously rejected by organized baseball. Skeptics said the team would never work, but the Mavericks played five seasons from 1973 through 1977, and “generated unprecedented success: they shattered attendance records, signed Kurt Russell - Bing’s son - as a player and team Vice President, produced the most successful batboy in baseball (filmmaker Todd Field), re-launched the controversial career of Jim Bouton, hired the first female general manager in baseball, and inspired a beloved bubblegum - Big League Chew.” Id.

In their final and finest season, the Mavericks had the best record in the league and won the southern division by 22 games, their third division title in as many seasons. The Mavericks attracted 125,300 fans to 33 regular season home dates (an average of almost 3,800 per game), setting a record for the highest short-season attendance in minor league history.

[Spoiler alert in case you haven’t seen the movie – you may want to stop now and come back after you watch it]

As portrayed in the movie, the Portland Mavericks’ unconventional approach and undeniable success embarrassed and arguably threatened Major League Baseball. After Bing Russell created such a phenomenally successful program with the Mavericks, Major League Baseball’s interest was renewed in Portland – whether directly intended to stifle the competition from the independent Portland Mavericks or not – the result was the same.

In 1978, Major League Baseball took back the Portland territory and added the new Portland Beavers team, forcing the Mavericks out. In sharp contrast to the popularity of Bing Russell’s Mavericks, the 1978 Beavers drew only 96,395 fans to 69 home games, an average of under 1,400 per game.

The Battered Bastards of Baseball ends on a positive note. Even though the Mavericks were shut down, Bing Russell refused the accept the paltry $5,000 offered by the Major League and instead took the league to arbitration. Ultimately, the league paid Russell the highest payout for a minor league territory in history — $206,000. Id.

What does this great baseball movie have to do with the law? A lot actually . . .

And in large part because of this guy

Justice Oliver Wendell Holmes Jr. is widely respected as one of the finest judicial minds of all time, and he was also (interesting legal trivia) the oldest person ever to sit on the Supreme Court of the United States. He sat on the bench from 1902 to 1932 and retired when he was 90 years old.

In 1922, Justice Holmes authored a unanimous Supreme Court case, Federal Baseball Club v. National League, 259 U.S. 200 (1922), that has shaped the landscape of American baseball for the past 99 years.

First, a little background on antitrust law . . .

Pursuant to its Commerce Clause power, Congress enacted the Sherman Antitrust Act (the “Sherman Act”), 15 U.S.C. § 1 et seq., in 1890 which sets out the most basic substantive prohibitions of the federal antitrust laws. Section 1 of the Sherman Act makes illegal “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. Section 2 prohibits monopolization as well as attempts and conspiracies to monopolize. 15 U.S.C. § 2.

Without getting too technical about it, the Sherman Act is a federal law which prevents businesses from conspiring with one another in an effort to thwart competition, agreeing to fix prices and otherwise undermining the market, which might hurt consumers. It and other such laws were passed in the late 19th century and early 20th century after massive business combinations — referred to as “trusts” — in key industries came to monopolize wide swaths of the economy. Thus the name, “antitrust” laws.

The key thing about the Sherman Act, though, is that it can only apply to business that engages in “interstate commerce.” That is, business that crosses state lines. The reason is pretty basic: the Constitution does not give Congress the power to simply regulate the economy, full stop. It can only do so with respect to interstate commerce. Stuff that happens only within a single state’s borders is not subject to the Sherman Act. . . . .

Back to baseball . . .

Baseball games are clearly interstate commerce, right? One team is in New York, another is in Chicago and they have to take trains or planes to get to one another. Fans from Philly may go to Washington to watch a game, traveling and spending money across state lines to do so. Even as early as 1922 some games had been broadcast on the radio, sending their signals — and advertisements — across state lines. The very essence of the business of baseball, then as now, involved multi-state travel and interstate commerce. Indeed, professional sports as both historically and currently constructed are the very definition of national operations.


In the Federal Baseball Club case, the Supreme Court ruled that federal antitrust laws did NOT apply to baseball because, as stated in the opinion written by Justice Oliver Wendell Holmes, “the business is giving exhibitions of baseball” – and is not interstate commerce. In other words, the “exhibitions” of baseball were purely local affairs that would not fall within federal antitrust regulations. Federal Baseball Club, 259 U.S. at 208. It did not matter that players had to cross state lines to compete with each other.

Why It Matters?

The antitrust laws are supposed to promote and protect competition. In short, the Federal Baseball Club case was a huge victory for Major League baseball, granting the entire sport an exemption to the Sherman Act. Without the protection of antitrust laws, monopolistic behavior or contracts by Major League Baseball could not be reigned in purely as violative of antitrust laws. Without the protection of antitrust laws, Major League Baseball is free to maintain monopolistic power by anticompetitive means. Without the protection of antitrust laws, Bing Russell’s Portland Maverick’s get squashed.

So, how could Justice Holmes, arguably one of the greatest legal minds in history, write an opinion stating that baseball was not subject to the Sherman Act because it’s not interstate commerce – and why did the entire United States Supreme Court at the time agree with him? We don’t really know. Justice Holmes did not expand on the opinion. In the words of Craig Calcaterra, “While there are far worse Supreme Court decisions on record in terms of intent and effect, Federal Baseball does stand as one of the worst reasoned decisions ever. Mostly because Justice Holmes really, really just wanted the baseball owners to win, logic and the law be damned.”

Another commentator speculated that the Court simply “exempted baseball from the antitrust laws because it was the national pastime.” Roger 1. Abrams, “Blackmun’s List,” 6 Va. Sports & Ent. L. J. 181, 183 (2006–7)

The Federal Baseball Club decision has been widely criticized by judges and commentators. The decision has been described as “not one of Holmes’ happiest days,” Salerno v. Am. League of Prof’l Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970) (Friendly, J.) (“We freely acknowledge our belief that Federal Baseball was not one of Justice Holmes’ happiest days [and] that the rationale in Toolson is extremely dubious . . . .”); an “‘aberration’ that makes little sense given the heavily interstate nature of the ‘business of baseball’ today.” City of San Jose v. Office of the Comm’r of Baseball, 2013 WL 5609346, at *10 (N.D. Cal. Oct. 11, 2013) (citing Flood, 407 U.S. at 282); “[b]aseball’s most infamous opinion” Eldon L. Ham, “Aside the Aside: The True Precedent of Baseball in Law,” 13 Marq. Sports L. Rev. 213, 215 (2003); a “clearly wrong” decision based on a “curious and narrow misreading of the antitrust laws and/or [an] utter misunderstanding of the nature of the business of baseball” Paul Finkelman, “Baseball and the Rule of Law Revisited,” 25 T. Jefferson L. Rev. 17, 30 (2002); and a “simple and simplistic” decision that forms “a source of embarrassment for scholars of Holmes.” Baseball and the American Legal Mind 75–76 (Spencer Weber Waller et al. eds., 1995).

In a later dissenting opinion, another Justice of the Supreme Court, Justice Douglas, described the Federal Baseball Club decision as a “narrow parochial view of commerce” that will not survive the Court’s “modern decisions.” Flood v. Kuhn, 407 U.S. 258, 286 (1972) (Douglas, J., dissenting). Justice Douglas attacked the decision as “a derelict in the stream of the law that we, its creator, should remove.” Id.

Will this Issue Be Fixed . . . Maybe!

In the words of the Ninth Circuit, “Only Congress and the Supreme Court are empowered to question [the precedent’s] continued vitality, and with it, the fate of baseball’s singular and historic exemption from the antitrust laws.” City of San Jose v. Office of the Comm'r of Baseball, 776 F.3d 686, 692 (9th Cir. 2015)

The Supreme Court had the opportunity to revisit Federal Baseball Club in 1953 in Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953), and again in 1972 in Flood v. Kuhn, 407 U.S. 258 (1972). The series of three cases have come to be known as the “Baseball Trilogy”: Federal Baseball Club v. National League, 259 U.S. 200 (1922); Toolson v. N.Y. Yankees, Inc., 346 U.S. 356 (1953); and Flood v. Kuhn, 407 U.S. 258 (1972).

However, in both subsequent cases, Toolson and Flood, the Supreme Court refused to overturn Federal Baseball Club. In fact, the Flood v. Kuhn decision went a step further, and determined that baseball was exempt from state antitrust laws as well. See id. at 284--85. In Flood, the Court also found Major League Baseball was engaged in interstate commerce. However, applying the legal concept of “stare decisis” the Court refused to overturn baseball’s original antitrust exemption from Federal Baseball, deeming it necessary to preserve precedent.

Stare decisis is Latin for “to stand by things decided.” In short, it is the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis ”promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt. See, e.g., Alleyne v. United States, 570 U.S. 99, 118 (2013) (Sotomayor, J., concurring) (“We generally adhere to our prior decisions even if we question their soundness . . . .”).

Fortunately, stare decisis does not mean that unsound decisions can never be re-examined and overturned. Payne v. Tennessee, 501 U.S. 808, 827-28 (1991) (“Stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision.”).

It is worth noting that today’s Supreme Court has a number of confirmed baseball fans on the bench. Justice Sonia Sotomayor is a Yankee fan—she threw out the first pitch at a game at Yankee’s Stadium in 2009 and sat in “The Judges Chamber” for a game in 2017, in the section named for outfielder Aaron Judge. She again took the mound to throw the opening pitch at a Nationals game during their 2019 season. Id. Justice Elena Kagan is a New York Mets fan. In Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399 (2012), in order to illustrate how the word “a” can sometimes mean “any,” Justice Kagan wrote: “If your child admits that she ‘did not read a book all summer,’ you will surmise that she did not read any book (but went to the movies a lot). . . . And if a sports-fan friend bemoans that ‘the New York Mets do not have a chance of winning the World Series,’ you will gather that the team has no chance whatsoever (because they have no hitting).” Appeal to reverse baseball’s antitrust rule is a desperate swing for the fences. The Washington Post.

Justice Stephen G. Breyer, formerly a judge in Boston, referred to the Red Sox during a case involving the National Football League because he said he knew baseball better. Id. Justice Brett Kavanagh roots for his hometown Washington Nationals. Id. And, Justice Samuel Alito is a Philadelphia Phillies fan. Indeed, when Justice Alito delivered the 2008 Supreme Court Historical Society’s annual lecture, he chose to discuss the baseball antitrust exemption. Published originally in the Journal of Supreme Court History 34, no. 2 (July 2009): 183–95, Justice Alito’s speech acknowledged all of the criticism that the Federal Baseball Club decision has received, but stated that the decision was in keeping with the Court’s understanding of the Commerce Clause at that time.

Another Justice that might be willing to carve inroads into the 99 year old precedent of the Federal Baseball Club, is Justice Gorsuch. In 2016, when he was on the Tenth Circuit Court of Appeals, Justice Gorsuch cited Federal Baseball Club and Toolson in a concurring opinion. In Direct Marketing Ass’n v. Brohl, 814 F.3d 1129, 1151 (10th Cir. 2016), Judge Gorsuch described Federal Baseball Club as a “precedential island[]” that “manage[s] to survive indefinitely even when surrounded by a sea of contrary law…. [that] would never expand but would, if anything, wash away with the tides of time”.

In the words of Yogi Berra, “It ain’t over ‘til it’s over.”

If you have questions about this article, please contact Alison Feehan ( at 804-377-1279, or Steve Setliff ( at 804-377-1261.