U.S. Supreme Court Klor's, Inc. v. Broadway-Hale Stores,
Inc., 359
U.S. 207 (1959) Klor's, Inc. v. Broadway-Hale
Stores, Inc. No. 76 Argued February 25-26,
1959 Decided April 6, 1959 359
U.S. 207 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus Petitioner, which operates a retail store selling radios,
television sets, refrigerators, and other household appliances,
brought this action for treble damages under § 4 of the Clayton Act
against respondents, a chain of department stores and 10 national
manufacturers and their distributors, alleging that the
manufacturers and distributors conspired among themselves and with
the chain of department stores either not to sell to petitioner or
to do so only at discriminatory prices and highly unfavorable
terms, in violation of §§ 1 and 2 of the Sherman Act, and that this
had seriously damaged petitioner. Respondents did not deny these
allegations, but moved for summary judgment and dismissal of the
complaint for failure to state a cause of action. They filed
affidavits that there were hundreds of other retailers selling the
same and competing appliances in the same community, and contended
that the controversy was a "purely private quarrel" between
petitioner and the chain of department stores, which did not amount
to a "public wrong" proscribed by the Sherman Act. Held: Petitioner's allegations clearly showed a group
boycott, which is forbidden by the Sherman Act, and respondents'
affidavits provided no defense to the charges. Pp. 359 U. S.
208 -214.

															(a) A group boycott is not to be tolerated merely because the
victim is only one merchant whose business is so small that his
destruction makes little difference to the economy. P. 359 U. S.
213 .

															(b) Monopoly can as surely thrive by the elimination of small
businessmen, one at a time, as it can by driving them out in large
groups. P. 359 U. S.
213 .

															255 F.2d 214, reversed and cause remanded. Page 359 U. S. 208 MR. JUSTICE BLACK delivered the opinion of the Court.

															Klor's, Inc., operates a retail store on Mission Street, San
Francisco, California; Broadway-Hale Stores, Inc., a chain of
department stores, operates one of its stores next door. The two
stores compete in the sale of radios, television sets,
refrigerators, and other household appliances. Claiming that
Broadway-Hale and 10 national manufacturers and their distributors
have conspired to restrain and monopolize commerce in violation of
§§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C.
§§ 1, 2, Klor's brought this action for treble damages and
injunction in the United States District Court. [ Footnote 1 ] Page 359 U. S. 209 In support of its claim, Klor's made the following allegations:
George Klor started an appliance store some years before 1952, and
has operated it ever since either individually or as Klor's, Inc.
Klor's is as well equipped as Broadway-Hale to handle all brands of
appliances. Nevertheless, manufacturers and distributors of such
well known brands as General Electric, RCA, Admiral, Zenith,
Emerson, and others [ Footnote
2 ] have conspired among themselves and with Broadway-Hale
either not to sell to Klor's or to sell to it only at
discriminatory prices and highly unfavorable terms. Broadway-Hale
has used its "monopolistic" buying power to bring about this
situation. The business of manufacturing, distributing and selling
household appliances is in interstate commerce. The concerted
refusal to deal with Klor's has seriously handicapped its ability
to compete, and has already caused it a great loss of profits,
goodwill, reputation, and prestige.

															The defendants did not dispute these allegations, but sought
summary judgment and dismissal of the complaint for failure to
state a cause of action. They submitted unchallenged affidavits
which showed that there were Page 359 U. S. 210 hundreds of other household appliance retailers, some within a
few blocks of Klor's, who sold many competing brands of appliances,
including those the defendants refused to sell to Klor's. From the
allegations of the complaint, and from the affidavits supporting
the motion for summary judgment, the District Court concluded that
the controversy was a "purely private quarrel" between Klor's and
Broadway-Hale, which did not amount to a "public wrong proscribed
by the [Sherman] Act." On this ground, the complaint was dismissed
and summary judgment was entered for the defendants. The Court of
Appeals for the Ninth Circuit affirmed the summary judgment. 255
F.2d 214. It stated that "a violation of the Sherman Act requires
conduct of defendants by which the public is or conceivably may be
ultimately injured." 255 F.2d at 233. It held that here, the
required public injury was missing, since

															"there was no charge or proof that, by any act of defendants,
the price, quantity, or quality offered the public was affected,
nor that there was any intent or purpose to effect a change in, or
an influence on, prices, quantity, or quality. . . ." Id. at 230. The holding, if correct, means that, unless
the opportunities for customers to buy in a competitive market are
reduced, a group of powerful businessmen may act in concert to
deprive a single merchant, like Klor, of the goods he needs to
compete effectively. We granted certiorari to consider this
important question in the administration of the Sherman Act. 358
U.S. 809.

															We think Klor's allegations clearly show one type of trade
restraint and public harm the Sherman Act forbids, and that
defendants' affidavits provide no defense to the charges. Section 1
of the Sherman Act makes illegal any contract, combination or
conspiracy in restraint of trade, and § 2 forbids any person or
combination from monopolizing or attempting to monopolize any part
of Page 359 U. S. 211 interstate commerce. In the landmark case of Standard Oil
Co. v. United States, 221 U. S. 1 , this
Court read § 1 to prohibit those classes of contracts or acts which
the common law had deemed to be undue restraints of trade and those
which new times and economic conditions would make unreasonable. Id. at 221 U. S. 59 -60.
The Court construed § 2 as making

															"the prohibitions of the act all the more complete and perfect
by embracing all attempts to reach the end prohibited by the first
section, that is, restraints of trade, by any attempt to
monopolize, or monopolization thereof. . . ." Id. at 221 U. S. 61 . The
effect of both sections, the Court said, was to adopt the common
law proscription of all "contracts or acts which it was considered
had a monopolistic tendency . . . " and which interfered with the
"natural flow" of an appreciable amount of interstate commerce. Id. at 221 U. S. 57 , 221 U. S. 61 ; Eastern States Retail Lumber Dealers' Ass'n v. United
States, 234 U. S. 600 , 234 U. S. 609 .
The Court recognized that there were some agreements whose validity
depended on the surrounding circumstances. It emphasized, however,
that there were classes of restraints which, from their "nature or
character," were unduly restrictive, and hence forbidden by both
the common law and the statute. 221 U.S. at 221 U. S. 58 , 221 U. S. 65 .
[ Footnote 3 ] As to these
classes of restraints, the Court noted, Congress had determined its
own criteria of public harm, and it was not for the courts to
decide whether in an individual case injury had actually occurred. Id. at 221 U. S. 63 -68.
[ Footnote 4 ] Page 359 U. S. 212 Group boycotts, or concerted refusals by traders to deal with
other traders, have long been held to be in the forbidden category.
[ Footnote 5 ] They have not been
saved by allegations that they were reasonable in the specific
circumstances, nor by a failure to show that they "fixed or
regulated prices, parceled out or limited production, or brought
about a deterioration in quality." Fashion Originators' Guild
v. Federal Trade Commission, 312 U. S. 457 , 312 U. S. 466 , 312 U. S.
467 -468. Cf. United States v. Trenton Potteries
Co., 273 U. S. 392 .
Even when they operated to lower prices or temporarily to stimulate
competition, they were banned. For, as this Court said in Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U. S. 211 , 340 U. S.
213 ,

															"such agreements, no less than those to fix minimum prices,
cripple the freedom of traders and thereby restrain their ability
to sell in accordance with their own judgment." Cf. United States v. Patten, 226 U.
S. 525 , 226 U. S.
542 .

															Plainly the allegations of this complaint disclose such a
boycott. This is not a case of a single trader refusing to deal
with another, [ Footnote 6 ] nor
even of a manufacturer and a dealer agreeing to an exclusive
distributorship. Alleged Page 359 U. S. 213 in this complaint is a wide combination consisting or
manufacturers, distributors, and a retailer. This combination takes
from Klor's its freedom to buy appliances in an open competitive
market, and drives it out of business as a dealer in the
defendants' products. It deprives the manufacturers and
distributors of their freedom to sell to Klor's at the same prices
and conditions made available to Broadway-Hale, and, in some
instances, forbids them from selling to it on any terms whatsoever.
It interferes with the natural flow of interstate commerce. It
clearly has, by its "nature" and "character," a "monopolistic
tendency." As such, it is not to be tolerated merely because the
victim is just one merchant whose business is so small that his
destruction makes little difference to the economy. [ Footnote 7 ] Monopoly can as surely thrive by
the elimination of such small businessmen, one at a time, as it can
by driving them out in large groups. In recognition of this fact,
the Sherman Act has consistently been read to forbid all contracts
and combinations which "tend to create a monopoly," whether "the
tendency is a creeping Page 359 U. S. 214 one" or "one that proceeds at full gallop." International
Salt Co. v. United States, 332 U. S. 392 , 332 U. S.
396 .

															The judgment of the Court of Appeals is reversed, and the cause
is remanded to the District Court for trial. Reversed. MR. JUSTICE HARLAN, believing that the allegations of the
complaint are sufficient to entitle the petitioner to go to trial,
and that the matters set forth in respondents' affidavits are not
necessarily sufficient to constitute a defense irrespective of what
the petitioner may be able to prove at the trial, concurs in the
result.

															[ Footnote 1 ]

															Section 1 of the Sherman Act provides:

															"Every 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, is declared to be illegal. . .
."

															Section 2 of the Act reads,

															"Every person who shall monopolize, or attempt to monopolize, or
combine or conspire with any other person or persons, to monopolize
any part of the trade or commerce among the several States, or with
foreign nations, shall be deemed guilty of a misdemeanor. . .
."

															Section 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15,
states,

															"Any person who shall be injured in his business or property by
reason of anything forbidden in the antitrust laws may sue therefor
. . . and shall recover threefold the damages by him sustained. . .
."

															[ Footnote 2 ]

															The appliance manufacturers named in the complaint are: Admiral
Corp., Emerson Radio and Phonograph Corp., General Electric Co.,
Olympic Radio and Television, Inc., Philco Corp., Rheem
Manufacturing Co., Radio Corp. of America, Tappan Stove Co.,
Whirlpool Corp., Zenith Radio Corp.

															[ Footnote 3 ] See also United States v. American Tobacco Co., 221 U. S. 106 , 221 U. S. 179 ,
where the Court noted that the statute forbade all

															"acts or contracts or agreements or combinations . . . which,
either because of their inherent nature or effect or because of the
evident purpose of the acts, etc., injuriously retrained trade. . .
."

															[ Footnote 4 ] See also United States v. Trenton Potteries Co., 273 U. S. 392 , 273 U. S.
395 -401; Radovich v. National Football League, 352 U. S. 445 , 352 U. S.
453 -454. In this regard, the Sherman Act should be
contrasted with § 5 of the Federal Trade Commission Act, 38 Stat.
719, as amended, 15 U.S.C. § 45(b), which requires that the
Commission find "that a proceeding by it . . . would be to the
interest of the public" before it issues a complaint for unfair
competition. See Federal Trade Commission v. Klesner, 280 U. S. 19 , 280 U. S. 27 . But cf. Fashion Originators' Guild v. Federal Trade
Commission, 312 U. S. 457 , 312 U. S.
466 -467.

															[ Footnote 5 ] See, e.g., Eastern State Retail Lumber Dealers' Ass'n v.
United States, 234 U. S. 600 ; Binderup v. Pathe Exchange, Inc., 263 U.
S. 291 ; Fashion Originators' Guild v. Federal Trade
Commission, 312 U. S. 457 ; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U. S. 211 , 340 U. S. 214 ; Times-Picayune Publishing Co. v. United States, 345 U. S. 594 , 345 U. S. 625 ; Northern Pacific Ry. Co. v. United States, 356 U. S.
1 , 356 U. S. 5 .

															[ Footnote 6 ] Compare United States v. Colgate & Co., 250 U. S. 300 , with United States v. Schrader's Son, Inc., 252 U. S.
85 ; United States v. Bausch & Lomb Optical
Co., 321 U. S. 707 , 321 U. S.
719 -723; Lorain Journal Co. v. United States, 342 U. S. 143 .

															[ Footnote 7 ]

															The court below relied heavily on Apex Hosiery Co. v.
Leader, 310 U. S. 469 , in
reaching its conclusion. While some language in that case can be
read as supporting the position that no restraint on trade is
prohibited by § 1 of the Sherman Act unless it has or is intended
to have an effect on market prices, such statements must be
considered in the light of the fact that the defendant in that case
was a labor union. The Court in Apex recognized that the
Act is aimed primarily at combinations having commercial
objectives, and is applied only to a very limited extent to
organizations, like labor unions, which normally have other
objectives. See United States v. Hutcheson, 312 U.
S. 219 ; Allen Bradley Co. v. Local 3, International
Brotherhood of Electrical Workers, 325 U.
S. 797 . Moreover, cases subsequent to Apex have
made clear that an effect on prices is not essential to a Sherman
Act violation. See, e.g., Fashion Originators' Guild v. Federal
Trade Commission, 312 U. S. 457 , 312 U. S.
466 .

Summary: The Supreme Court ruled in favor of Klor's, Inc., finding that the allegations of a group boycott by Broadway-Hale Stores, Inc., and several national manufacturers and their distributors violated the Sherman Act. The Court held that a group boycott, even if targeting a single merchant, is forbidden and can lead to monopoly power. The case was sent back to the lower court for further proceedings.


U.S. Supreme Court Flood v. Kuhn, 407
U.S. 258 (1972) Flood v. Kuhn No. 71-32 Argued March 20, 1972 Decided June 19, 1972 407
U.S. 258 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus Petitioner, a professional baseball player "traded" to another
club without his previous knowledge or consent, brought this
antitrust suit after being refused the right to make his own
contract with another major league team, which is not permitted
under the reserve system. The District Court rendered judgment in
favor of respondents, and the Court of Appeals affirmed. Held: The longstanding exemption of professional
baseball from the antitrust laws, Federal Baseball Club v.
National League, 259 U. S. 200 (1922); Toolson v. New York Yankees, Inc., 346 U.
S. 356 (1953), is an established aberration, in the
light of the Court's holding that other interstate professional
sports are not similarly exempt, but one in which Congress has
acquiesced, and that is entitled to the benefit of stare
decisis. Removal of the resultant inconsistency at this late
date is a matter for legislative, not judicial, resolution. Pp. 407 U. S.
269 -285.

															443 F.2d 264, affirmed.

															BLACKMUN, J., delivered the opinion of the Court, in which
STEWART and REHNQUIST, JJ., joined, and in all but Part I of which
BURGER, C.J., and WHITE, J., joined. BURGER, C.J., filed a
concurring opinion, post, p. 407 U. S. 285 .
DOUGLAS, J., post, p. 407 U. S. 286 ,
and MARSHALL, J., post, p. 407 U. S. 288 ,
filed dissenting opinions, in which BRENNAN, J., joined. POWELL,
J., took no part in the consideration or decision of the case. Page 407 U. S. 259 MR. JUSTICE BLACKMUN delivered the opinion of the Court.

															For the third time in 50 years, the Court is asked specifically
to rule that professional baseball's reserve system is within the
reach of the federal antitrust laws. [ Footnote 1 ] Page 407 U. S. 260 Collateral issues of state law and of federal labor policy are
also advanced. I The Game It is a century and a quarter since the New York Nine defeated
the Knickerbockers 23 to 1 on Hoboken's Page 407 U. S. 261 Elysian Fields June 19, 1846, with Alexander Jay Cartwright as
the instigator and the umpire. The teams were amateur, but the
contest marked a significant date in baseball's beginnings. That
early game led ultimately to the development of professional
baseball and its tightly organized structure.

															The Cincinnati Red Stockings came into existence in 1869 upon an
outpouring of local pride. With only one Cincinnatian on the
payroll, this professional team traveled over 11,000 miles that
summer, winning 56 games and tying one. Shortly thereafter, on St.
Patrick's Day in 1871, the National Association of Professional
Baseball Players was founded and the professional league was
born.

															The ensuing colorful days are well known. The ardent follower
and the student of baseball know of General Abner Doubleday; the
formation of the National League in 1876; Chicago's supremacy in
the first year's competition under the leadership of Al Spalding
and with Cap Anson at third base; the formation of the American
Association and then of the Union Association in the 1880's; the
introduction of Sunday baseball; inter-league warfare with cut-rate
admission prices and player raiding; the development of the reserve
"clause"; the emergence in 1885 of the Brotherhood of Professional
Ball Players, and in 1890 of the Players League; the appearance of
the American League, or "junior circuit," in 1901, rising from the
minor Western Association; the first World Page 407 U. S. 262 Series in 1903, disruption in 1904, and the Series' resumption
in 1905; the short-lived Federal League on the majors' scene during
World War I years; the troublesome and discouraging episode of the
1919 Series; the home run ball; the shifting of franchises; the
expansion of the leagues; the installation in 1965 of the major
league draft of potential new players; and the formation of the
Major League Baseball Players Association in 1966. [ Footnote 2 ]

															Then there are the many names, celebrated for one reason or
another, that have sparked the diamond and its environs and that
have provided tinder for recaptured thrills, for reminiscence and
comparisons, and for conversation and anticipation in-season and
off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry
Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander,
Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus
Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard,
Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones,
Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam
Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred
Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man
McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie
Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe
Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny
Evers, Joe Tinker, Roy Campanela, Miller Huggins, Rube Bressler,
Dazzy Vance, Edd Roush, Bill Wambsganess, Clark Griffith, Branch
Rickey, Frank Chance, Cap Anson, Page 407 U. S. 263 Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby
Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy
McInnis, Charles Comiske, Roger Bresnahan, Bill Dickey, Zack Wheat,
George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred
Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill
Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit
Maranville, Jimmie Foxx, Lefty Grove. [ Footnote 3 ] The list seems endless.

															And one recalls the appropriate reference to the "World
Serious," attributed to Ring Lardner, Sr.; Ernest L. Thayer's
"Casey at the Bat"; [ Footnote
4 ] the ring of "Tinker to Page 407 U. S. 264 Evers to Chance"; [ Footnote
5 ] and all the other happenings, habits, and superstitions
about and around baseball that made it the "national pastime" or,
depending upon the point of view, "the great American tragedy."
[ Footnote 6 ] II The Petitioner The petitioner, Curtis Charles Flood, born in 1938, began his
major league career in 1956 when he signed a contract with the
Cincinnati Reds for a salary of $4,000 for the season. He had no
attorney or agent to advise him on that occasion. He was traded to
the St. Louis Cardinals before the 1958 season. Flood rose to fame
as a center fielder with the Cardinals during the years 1958-1969.
In those 12, seasons he compiled a batting average of .293. His
best offensive season was 1967, when he achieved .335. He was .301
or better in six of the 12 St. Louis years. He participated in the
1964, 1967, and 1968 World Series. He played errorless ball in the
field in 1966, and once enjoyed 223 consecutive errorless games.
Flood has received seven Golden Glove Awards. He was co-captain of
his team from 1965-1969. He ranks among the 10 major league
outfielders possessing the highest lifetime fielding averages. Page 407 U. S. 265 Flood's St. Louis compensation for the years shown was:

															1961 $13,500 (including a bonus for signing)

															1962 $16,000

															1963 $17,500

															1964 $23,000

															1965 $35,000

															1966 $45,000

															1967 $50,000

															1968 $72,500

															1969 $90,000

															These figures do not include any so-called fringe benefits or
World Series shares.

															But, at the age of 31, in October, 1969, Flood was traded to the
Philadelphia Phillies of the National League in a multi-player
transaction. He was not consulted about the trade. He was informed
by telephone and received formal notice only after the deal had
been consummated. In December, he complained to the Commissioner of
Baseball and asked that he be made a free agent and be placed at
liberty to strike his own bargain with any other major league team.
His request was denied.

															Flood then instituted this antitrust suit [ Footnote 7 ] in January, 1970, in federal court for
the Southern District of New York. The defendants (although not all
were named in each cause of action) were the Commissioner of
Baseball, the presidents of the two major leagues, and the 24 major
league clubs. In general, the complaint charged violations of the
federal antitrust laws and civil rights statutes, violation of
state statutes and the common law, and the imposition of a form of
peonage and involuntary Page 407 U. S. 266 servitude contrary to the Thirteenth Amendment and 42 U.S.C. §
1994, 18 U.S.C. § 1581, and 29 U.S.C. §§ 102 and 103. Petitioner
sought declaratory and injunctive relief and treble damages.

															Flood declined to play for Philadelphia in 1970, despite a
$100,000 salary offer, and he sat out the year. After the season
was concluded, Philadelphia sold its rights to Flood to the
Washington Senators. Washington and the petitioner were able to
come to terms for 1971 at a salary of $110,000. [ Footnote 8 ] Flood started the season but,
apparently because he was dissatisfied with his performance, he
left the Washington club on April 27, early in the campaign. He has
not played baseball since then. III The Present Litigation Judge Cooper, in a detailed opinion, first denied a preliminary
injunction, 309 F.
Supp. 793 (SDNY 1970), observing on the way:

															"Baseball has been the national pastime for over one hundred
years, and enjoys a unique place in our American heritage. Major
league professional baseball is avidly followed by millions of
fans, looked upon with fervor and pride, and provides a special
source of inspiration and competitive team spirit, especially for
the young."

															"Baseball's status in the life of the nation is so pervasive
that it would not strain credulity to say the Court can take
judicial notice that baseball is everybody's business. To put it
mildly and with restraint, it would be unfortunate indeed if a fine
sport and profession, which brings surcease from daily travail and
an escape from the ordinary to Page 407 U. S. 267 most inhabitants of this land, were to suffer in the least
because of undue concentration by any one or any group on
commercial and profit considerations. The game is on higher ground;
it behooves every one to keep it there."

															309 F. Supp. at 797. Flood's application for an early trial was
granted. The court next deferred until trial its decision on the
defendants' motions to dismiss the primary causes of action, but
granted a defense motion for summary judgment on an additional
cause of action. 312 F.
Supp. 404 (SDNY 1970).

															Trial to the court took place in May and June, 1970. An
extensive record was developed. In an ensuing opinion, 316 F.
Supp. 271 (SDNY 1970), Judge Cooper first noted that:

															"Plaintiff's witnesses in the main concede that some form of
reserve on players is a necessary element of the organization of
baseball as a league sport, but contend that the present
all-embracing system is needlessly restrictive, and offer various
alternatives which, in their view, might loosen the bonds without
sacrifice to the game. . . ."

															" * * * *" "Clearly, the preponderance of credible proof does not favor
elimination of the reserve clause. With the sole exception of
plaintiff himself, it shows that even plaintiff's witnesses do not
contend that it is wholly undesirable; in fact, they regard
substantial portions meritorious. . . ."

															316 F. Supp. at 275-276. He then held that Federal Baseball
Club v. National League, 259 U. S. 200 (1922), and Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953), were controlling; that it was not necessary to reach the
issue whether exemption from the antitrust laws would result
because aspects of Page 407 U. S. 268 baseball now are a subject of collective bargaining; that the
plaintiff's state law claims, those based on common law as well as
on statute, were to be denied because baseball was not "a matter
which admits of diversity of treatment," 316 F. Supp. at 280; that
the involuntary servitude claim failed because of the absence of
"the essential element of this cause of action, a showing of
compulsory service," 316 F.Supp. at 281-282; and that judgment was
to be entered for the defendants. Judge Cooper included a statement
of personal conviction to the effect that "negotiations could
produce an accommodation on the reserve system which would be
eminently fair and equitable to all concerned," and that "the
reserve clause can be fashioned so as to find acceptance by player
and club." 316 F. Supp. at 282 and 284.

															On appeal, the Second Circuit felt "compelled to affirm." 443
F.2d 264, 265 (1971). It regarded the issue of state law as one of
first impression, but concluded that the Commerce Clause precluded
its application. Judge Moore added a concurring opinion in which he
predicted, with respect to the suggested overruling of Federal
Baseball and Toolson, that "there is no likelihood
that such an event will occur." [ Footnote 9 ] 443 F.2d at 268, 272. Page 407 U. S. 269 We granted certiorari in order to look once again at this
troublesome and unusual situation. 404 U.S. 880 (1971). IV The Legal Background A. Federal Baseball Club v. National League, 259 U. S. 200 (1922), was a suit for treble damages instituted by a member of the
Federal League (Baltimore) against the National and American
Leagues and others. The plaintiff obtained a verdict in the trial
court, but the Court of Appeals reversed. The main brief filed by
the plaintiff with this Court discloses that it was strenuously
argued, among other things, that the business in which the
defendants were engaged was interstate commerce; that the
interstate relationship among the several clubs, located as they
were in different States, was predominant; that organized baseball
represented an investment of colossal wealth; that it was an
engagement in moneymaking; that gate receipts were divided by
agreement between the home club and the visiting club; and that the
business of baseball was to be distinguished from the mere playing
of the game as a sport for physical exercise and diversion. See
also 259 U.S. at 259 U. S.
201 -206.

															Mr. Justice Holmes, in speaking succinctly for a unanimous
Court, said:

															"The business is giving exhibitions of baseball, which are
purely state affairs. . . . But the fact that, in order to give the
exhibitions, the Leagues must induce free persons to cross state
lines and Page 407 U. S. 270 must arrange and pay for their doing so is not enough to change
the character of the business. . . . [T]he transport is a mere
incident, not the essential thing. That to which it is incident,
the exhibition, although made for money, would not be called trade
or commerce in the commonly accepted use of those words. As it is
put by the defendants, personal effort, not related to production,
is not a subject of commerce. That which, in its consummation, is
not commerce does not become commerce among the States because the
transportation that we have mentioned takes place. To repeat the
illustrations given by the Court below, a firm of lawyers sending
out a member to argue a case, or the Chautauqua lecture bureau
sending out lecturers, does not engage in such commerce because the
lawyer or lecturer goes to another State."

															"If we are right, the plaintiff's business is to be described in
the same way, and the restrictions by contract that prevented the
plaintiff from getting players to break their bargains and the
other conduct charged against the defendants were not an
interference with commerce among the States."

															259 U.S. at 259 U. S.
208 -209. [ Footnote
10 ] Page 407 U. S. 271 The Court thus chose not to be persuaded by opposing examples
proffered by the plaintiff, among them (a) Judge Learned Hand's
decision on a demurrer to a Sherman Act complaint with respect to
vaudeville entertainers traveling a theater circuit covering
several States, H. B. Marienelli, Ltd. v. United Booking
Offices, 227 F. 165 (SDNY 1914); (b) the first Mr. Justice
Harlan's opinion in International Textbook Co. v. Pigg, 217 U. S. 91 (1910), to the effect that correspondence courses pursued through
the mail constituted commerce among the States; and (c) Mr. Justice
Holmes' own opinion, for another unanimous Court, on demurrer in a
Sherman Act case, relating to cattle shipment, the interstate
movement of which was interrupted for the finding of purchasers at
the stockyards, Swift & Co. v. United States, 196 U. S. 375 (1905). The only earlier case the parties were able to locate where
the question was raised whether organized baseball was within the
Sherman Act was American League Baseball Club v. Chase, 86
Misc. 441, 149 N.Y.S. 6 (1914). That court had answered the
question in the negative.

															B. Federal Baseball was cited a year later, and without
disfavor, in another opinion by Mr. Justice Holmes for a unanimous
Court. The complaint charged antitrust violations with respect to
vaudeville bookings. It was held, however, that the claim was not
frivolous, and that the bill should not have been dismissed. Hart v. B. F. Keith Vaudeville Exchange, 262 U.
S. 271 (1923). [ Footnote 11 ]

															It has also been cited, not unfavorably, with respect to the
practice of law, United States v.
South-Eastern Page 407 U. S. 272 Underwriters Assn., 322 U. S. 533 , 322 U. S. 573 (1944) (Stone, C.J., dissenting); with respect to out-of-state
contractors, United States v. Employing Plasterers Assn., 347 U. S. 186 , 347 U. S.
196 -197 (1954) (Minton, J., dissenting); and upon a
general comparison reference, North American Co. v. SEC, 327 U. S. 686 , 327 U. S. 694 (1946).

															In the years that followed, baseball continued to be subject to
intermittent antitrust attack. The courts, however, rejected these
challenges on the authority of Federal Baseball. In some cases
stress was laid, although unsuccessfully, on new factors such as
the development of radio and television, with their substantial
additional revenues to baseball. [ Footnote 12 ] For the most part, however, the Holmes
opinion was generally and necessarily accepted as controlling
authority. [ Footnote 13 ] And
in the 1952 Report of the Subcommittee on Study of Monopoly Power
of the House Committee on the Judiciary, H.R.Rep. No. 2002, 82d
Cong., 2d Sess., 229, it was said, in conclusion:

															"On the other hand, the 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 Page 407 U. S. 273 struggle. The evidence adduced at the hearings would clearly not
justify the enactment of legislation flatly condemning the reserve
clause."

															C. The Court granted certiorari, 345 U.S. 963 (1953), in the Toolson, Kowalski, and Corbett cases, cited in
nn. 12 and | 12 and S. 258fn13|>13, supra, and, by a short per curiam (Warren, C.J., and Black, Frankfurter,
DOUGLAS, Jackson, Clark, and Minton, JJ.), affirmed the judgments
of the respective courts of appeals in those three cases. Toolson v. New York Yankees, Inc., 346 U.
S. 356 (1953). Federal Baseball was cited as
holding

															"that the business of providing public baseball games for profit
between clubs of professional baseball players was not within the
scope of the federal antitrust laws,"

															346 U.S. at 346 U. S. 357 ,
and:

															"Congress has had the ruling under consideration, but has not
seen fit to bring such business under these laws by legislation
having prospective effect. The business has thus been left for
thirty years to develop on the understanding that it was not
subject to existing antitrust legislation. The present cases ask us
to overrule the prior decision and, with retrospective effect, hold
the legislation applicable. We think that, if there are evils in
this field which now warrant application to it of the antitrust
laws, it should be by legislation. Without reexamination of the
underlying issues, the judgments below are affirmed on the
authority of Federal Baseball Club of Baltimore v. National
League of Professional Baseball Clubs, supra, so far as that
decision determines that Congress had no intention of including the
business of baseball within the scope of the federal antitrust
laws." Ibid. This quotation reveals four reasons for the Court's affirmance
of Toolson and its companion cases: (a) Congressional
awareness for three decades of the Court's ruling in Federal
Baseball, coupled with congressional Page 407 U. S. 274 inaction. (b) The fact that baseball was left alone to develop
for that period upon the understanding that the reserve system was
not subject to existing federal antitrust laws. (c) A reluctance to
overrule Federal Baseball with consequent retroactive effect. (d) A
professed desire that any needed remedy be provided by legislation,
rather than by court decree. The emphasis in Toolson was
on the determination, attributed even to Federal Baseball, that Congress had no intention to include baseball within the reach
of the federal antitrust laws. Two Justices (Burton and Reed, JJ.)
dissented, stressing the factual aspects, revenue sources, and the
absence of an express exemption of organized baseball from the
Sherman Act. 346 U.S. at 346 U. S. 357 .
The 1952 congressional study was mentioned. Id. at 346 U. S. 358 , 346 U. S. 359 , 346 U. S.
361 .

															It is of interest to note that, in Toolson, the
petitioner had argued flatly that Federal Baseball "is
wrong, and must be overruled," Brief for Petitioner, No. 18, O.T.
1953, p. 19, and that Thomas Reed Powell, a constitutional scholar
of no small stature, urged, as counsel for an amicus, that
"baseball is a unique enterprise," Brief for Boston American League
Base Ball Co. as Amicus Curiae 2, and that "unbridled
competition as applied to baseball would not be in the public
interest." Id. at 14.

															D. United States v. Shubert, 348 U.
S. 222 (1955), was a civil antitrust action against
defendants engaged in the production of legitimate theatrical
attractions throughout the United States and in operating theaters
for the presentation of such attractions. The District Court had
dismissed the complaint on the authority of Federal
Baseball and Toolson. 120 F. Supp. 15 (SDNY 1953).
This Court reversed. Mr. Chief Justice Warren noted the Court's
broad conception of "trade or commerce" in the antitrust statutes
and the types of enterprises already held to be within the reach of
that phrase. Page 407 U. S. 275 He stated that Federal Baseball and Toolson afforded no basis for a conclusion that businesses built around the
performance of local exhibitions are exempt from the antitrust
laws. 348 U.S. at 348 U. S. 227 .
He then went on to elucidate the holding in Toolson by
meticulously spelling out the factors mentioned above:

															"In Federal Baseball, the Court, speaking through Mr.
Justice Holmes, was dealing with the business of baseball and
nothing else. . . . The travel, the Court concluded, was 'a mere
incident, not the essential thing.' . . ."

															" * * * *" "In Toolson, where the issue was the same as in Federal Baseball, the Court was confronted with a unique
combination of circumstances. For over 30 years, there had stood a
decision of this Court specifically fixing the status of the
baseball business under the antitrust laws, and more particularly
the validity of the so-called 'reserve clause.' During this period,
in reliance on the Federal Baseball precedent, the
baseball business had grown and developed. . . . And Congress,
although it had actively considered the ruling, had not seen fit to
reject it by amendatory legislation. Against this background, the
Court in Toolson was asked to overrule Federal
Baseball on the ground that it was out of step with subsequent
decisions reflecting present-day concepts of interstate commerce.
The Court, in view of the circumstances of the case, declined to do
so. But neither did the Court necessarily reaffirm all that was
said in Federal Baseball. Instead, '[w]ithout
reexamination of the underlying issues,' the Court adhered to Federal Baseball so far as that decision determines that
Congress had no intention of including the business of baseball
within the scope of the federal antitrust laws."

															346 Page 407 U. S. 276 U.S. at 346 U. S. 357 .
In short, Toolson was a narrow application of the rule of stare decisis. ". . . If the Toolson holding is to be expanded -- or
contracted -- the appropriate remedy lies with Congress."

															348 U.S. at 348 U. S.
228 -230.

															E. United States v. International Boxing Club, 348 U. S. 236 (1955), was a companion to Shubert, and was decided the
same day. This was a civil antitrust action against defendants
engaged in the business of promoting professional championship
boxing contests. Here again, the District Court had dismissed the
complaint in reliance upon Federal Baseball and Toolson. The Chief Justice observed that,

															"if it were not for Federal Baseball and Toolson, we think that it would be too clear for dispute
that the Government's allegations bring the defendants within the
scope of the Act."

															348 U.S. at 348 U. S.
240 -241. He pointed out that the defendants relied on
the two baseball cases, but also would have been content with a
more restrictive interpretation of them than the Shubert defendants, for the boxing defendants argued that the cases
immunized only businesses that involve exhibitions of an athletic
nature. The Court accepted neither argument. It again noted, 348
U.S. at 348 U. S. 242 ,
that " Toolson neither overruled Federal Baseball nor necessarily reaffirmed all that was said in Federal
Baseball. " It stated:

															"The controlling consideration in Federal Baseball and Hart was, instead, a very practical one -- the degree of
interstate activity involved in the particular business under
review. It follows that stare decisis cannot help the
defendants here; for, contrary to their argument, Federal
Baseball did not hold that all businesses based on
professional sports were outside the scope of the antitrust laws.
The issue confronting us is, therefore, not whether a previously
granted exemption should continue, Page 407 U. S. 277 but whether an exemption should be granted in the first
instance. And that issue is for Congress to resolve, not this
Court."

															348 U.S. at 348 U. S.
243 .

															The Court noted the presence then in Congress of various bills
forbidding the application of the antitrust laws to "organized
professional sports enterprises"; the holding of extensive hearings
on some of these; subcommittee opposition; a postponement
recommendation as to baseball; and the fact that "Congress thus
left intact the then-existing coverage of the antitrust laws." 348
U.S. at 348 U. S.
243 -244.

															Mr. Justice Frankfurter, joined by Mr. Justice Minton,
dissented. "It would baffle the subtlest ingenuity," he said,

															"to find a single differentiating factor between other sporting
exhibitions . . . and baseball insofar as the conduct of the sport
is relevant to the criteria or considerations by which the Sherman
Law becomes applicable to a 'trade or commerce.'"

															348 U.S. at 348 U. S. 248 .
He went on:

															"The Court decided as it did in the Toolson case as an
application of the doctrine of stare decisis. That
doctrine is not, to be sure, an imprisonment of reason. But neither
is it a whimsy. It can hardly be that this Court gave a preferred
position to baseball because it is the great American sport. . . .
If stare decisis be one aspect of law, as it is, to
disregard it in identical situations is mere caprice."

															"Congress, on the other hand, may yield to sentiment and be
capricious, subject only to due process. . . ."

															"Between them, this case and Shubert illustrate that
nice but rational distinctions are inevitable in adjudication. I
agree with the Court's opinion in Shubert for precisely
the reason that constrains me to dissent in this case."

															348 U.S. at 348 U. S.
249 -250. Page 407 U. S. 278 Mr. Justice Minton also separately dissented on the ground that
boxing is not trade or commerce. He added the comment that
"Congress has not attempted" to control baseball and boxing. 348
U.S. at 348 U. S. 251 , 348 U. S. 253 .
The two dissenting Justices, thus, did not call for the overruling
of Federal Baseball and Toolson; they merely felt
that boxing should be under the same umbrella of freedom as was
baseball and, as Mr. Justice Frankfurter said, 348 U.S. at 348 U. S. 250 ,
they could not exempt baseball "to the exclusion of every other
sport different not one legal jot or tittle from it." [ Footnote 14 ]

															F. The parade marched on. Radovich v. National Football
League, 352 U. S. 445 (1957), was a civil Clayton Act case testing the application of the
antitrust laws to professional football. The District Court
dismissed. The Ninth Circuit affirmed in part on the basis of Federal Baseball and Toolson. The court did not
hesitate to "confess that the strength of the pull" of the baseball
cases and of International Boxing "is about equal," but
then observed that "[f]ootball is a team sport" and boxing an
individual one. 231 F.2d 620, 622.

															This Court reversed with an opinion by Mr. Justice Clark. He
said that the Court made its ruling in Toolson "because it was concluded that more harm would be done in
overruling Federal Baseball than in upholding a ruling
which, at best, was of dubious validity."

															352 U.S. at 352 U. S. 450 .
He noted that Congress had not acted. He then said:

															"All this, combined with the flood of litigation that would
follow its repudiation, the harassment that would ensue, and the
retroactive effect of such a decision, led the Court to the
practical result that Page 407 U. S. 279 it should sustain the unequivocal line of authority reaching
over many years."

															"[S]ince Toolson and Federal Baseball are
still cited as controlling authority in antitrust actions involving
other fields of business, we now specifically limit the rule there
established to the facts there involved, i.e., the
business of organized professional baseball. As long as the
Congress continues to acquiesce, we should adhere to -- but not
extend -- the interpretation of the Act made in those cases. . .
."

															"If this ruling is unrealistic, inconsistent, or illogical, it
is sufficient to answer, aside from the distinctions between the
businesses, that, were we considering the question of baseball for
the first time upon a clean slate, we would have no doubts. But Federal Baseball held the business of baseball outside the
scope of the Act. No other business claiming the coverage of those
cases has such an adjudication. We therefore conclude that the
orderly way to eliminate error or discrimination, if any there be,
is by legislation, and not by court decision. Congressional
processes are more accommodative, affording the whole industry
hearings and an opportunity to assist in the formulation of new
legislation. The resulting product is therefore more likely to
protect the industry and the public alike. The whole scope of
congressional action would be known long in advance, and effective
dates for the legislation could be set in the future without the
injustices of retroactivity and surprise which might follow court
action."

															352 U.S. at 352 U. S.
450 -452 (footnote omitted).

															Mr. Justice Frankfurter dissented essentially for the reasons
stated in his dissent in International Boxing, Page 407 U. S. 280 352 U.S. at 352 U. S. 455 .
Mr. Justice Harlan, joined by MR. JUSTICE BRENNAN, also dissented
because he, too, was "unable to distinguish football from
baseball." 352 U.S. at 352 U. S. 456 .
Here again, the dissenting Justices did not call for the overruling
of the baseball decisions. They merely could not distinguish the
two sports, and, out of respect for stare decisis, , voted
to affirm.

															G. Finally, in Haywood v. National Basketball Assn., 401 U. S. 1204 (1971) , MR. JUSTICE DOUGLAS, in his capacity as Circuit Justice,
reinstated a District Court's injunction pendente lite in
favor of a professional basketball player and said, "Basketball . .
. does not enjoy exemption from the antitrust laws." 401 U.S. at 401 U. S.
1205 . [ Footnote
15 ]

															H. This series of decisions understandably spawned extensive
commentary, [ Footnote 16 ]
some of it mildly critical and Page 407 U. S. 281 much of it not; nearly all of it looked to Congress for any
remedy that might be deemed essential.

															I. Legislative proposals have been numerous and persistent.
Since Toolson, more than 50 bills have been introduced in
Congress relative to the applicability or nonapplicability of the
antitrust laws to baseball. [ Footnote 17 ] A few of these passed one house or the
other. Those that did would have expanded, not restricted, the
reserve system's exemption to other professional league sports. And
the Act of Sept. 30, 1961, Pub.L. 87-331, 75 Stat. 732, and the
merger addition thereto effected by the Act of Nov. 8, 1966, Pub.L.
89-800, § 6(b), Page 407 U. S. 282 80 Stat. 1515, 15 U.S.C. §§ 1291-1295, were also expansive,
rather than restrictive, as to antitrust exemption. [ Footnote 18 ] V In view of all this, it seems appropriate now to say that:

															1. Professional baseball is a business, and it is engaged in
interstate commerce.

															2. With its reserve system enjoying exemption from the federal
antitrust laws, baseball is, in a very distinct sense, an exception
and an anomaly. Federal Baseball and Toolson have
become an aberration confined to baseball.

															3. Even though others might regard this as "unrealistic,
inconsistent, or illogical," see Radovich, 352 U.S. at 352 U. S. 452 ,
the aberration is an established one, and one that has been
recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases
in this Court. It is an aberration that has been with us now for
half a century, one heretofore deemed fully entitled to the benefit
of stare decisis, and one that has survived the Court's
expanding concept of interstate commerce. It rests on a recognition
and an acceptance of baseball's unique characteristics and
needs.

															4. Other professional sports operating interstate --
football, Page 407 U. S. 283 boxing, basketball, and, presumably, hockey [ Footnote 19 ] and golf [ Footnote 20 ] -- are not so exempt.

															5. The advent of radio and television, with their consequent
increased coverage and additional revenues, has not occasioned an
overruling of Federal Baseball and Toolson. 6. The Court has emphasized that, since 1922, baseball, with
full and continuing congressional awareness, has been allowed to
develop and to expand unhindered by federal legislative action.
Remedial legislation has been introduced repeatedly in Congress,
but none has ever been enacted. The Court, accordingly, has
concluded that Congress as yet has had no intention to subject
baseball's reserve system to the reach of the antitrust statutes.
This, obviously, has been deemed to be something other than mere
congressional silence and passivity. Cf. Boys Markets, Inc. v.
Retail Clerks Union, 398 U. S. 235 , 398 U. S.
241 -242 (1970).

															7. The Court has expressed concern about the confusion and the
retroactivity problems that inevitably would result with a judicial
overturning of Federal Baseball. It has voiced a
preference that, if any change is to be made, it come by
legislative action that, by its nature, is only prospective in
operation.

															8. The Court noted in Radovich, 352 U.S. at 352 U. S. 452 ,
that the slate with respect to baseball is not clean. Indeed, it
has not been clean for half a century.

															This emphasis and this concern are still with us. We continue to
be loath, 50 years after Federal Baseball and almost two
decades after Toolson, to overturn those cases judicially
when Congress, by its positive inaction, Page 407 U. S. 284 has allowed those decisions to stand for so long and, far beyond
mere inference and implication, has clearly evinced a desire not to
disapprove them legislatively.

															Accordingly, we adhere once again to Federal Baseball and Toolson, and to their application to professional
baseball. We adhere also to International Boxing and Radovich, and to their respective applications to
professional boxing and professional football. If there is any
inconsistency or illogic in all this, it is an inconsistency and
illogic of long standing that is to be remedied by the Congress,
and not by this Court. If we were to act otherwise, we would be
withdrawing from the conclusion as to congressional intent made in Toolson and from the concerns as to retrospectivity
therein expressed. Under these circumstances, there is merit in
consistency, even though some might claim that beneath that
consistency is a layer of inconsistency.

															The petitioner's argument as to the application of state
antitrust laws deserves a word. Judge Cooper rejected the state law
claims because state antitrust regulation would conflict with
federal policy and because national "uniformity [is required] in
any regulation of baseball and its reserve system." 316 F. Supp. at
280. The Court of Appeals, in affirming, stated,

															"[A]s the burden on interstate commerce outweighs the states'
interests in regulating baseball's reserve system, the Commerce
Clause precludes the application here of state antitrust law."

															443 F.2d at 268. As applied to organized baseball, and in the
light of this Court's observations and holdings in Federal
Baseball, in Toolson, in Shubert, in nternational Boxing, and in Radovich, and despite
baseball's allegedly inconsistent position taken in the past with
respect to the application of state law, [ Footnote 21 ] Page 407 U. S. 285 these statements adequately dispose of the state law claims.

															The conclusion we have reached makes it unnecessary for us to
consider the respondents' additional argument that the reserve
system is a mandatory subject of collective bargaining and that
federal labor policy therefore exempts the reserve system from the
operation of federal antitrust laws. [ Footnote 22 ]

															We repeat for this case what was said in Toolson: "Without reexamination of the underlying issues, the [judgment]
below [is] affirmed on the authority of Federal Baseball Club
of Baltimore v. National League of Professional Baseball Clubs,
supra, so far as that decision determines that Congress had no
intention of including the business of baseball within the scope of
the federal antitrust laws."

															346 U.S. at 346 U. S. 357 .
And what the Court said in Federal Baseball in 1922, and
what it said in Toolson in 1953, we say again here in
1972: the remedy, if any is indicated, is for congressional, and
not judicial, action.

															The judgment of the Court of Appeals is Affirmed. MR. JUSTICE WHITE joins in the judgment of the Court, and in all
but Part I of the Court's opinion.

															MR. JUSTICE POWELL took no part in the consideration or decision
of this case.

															[ Footnote 1 ]

															The reserve system, publicly introduced into baseball contracts
in 1887, see Metropolitan Exhibition Co. v. Ewing, 42 F.
198, 202-204 (CC SDNY 1890), centers in the uniformity of player
contracts; the confinement of the player to the club that has him
under the contract; the assignability of the player's contract; and
the ability of the club annually to renew the contract
unilaterally, subject to a stated salary minimum. Thus,

															A. Rule 3 of the Major League Rules provides in part:

															"(a) UNIFORM CONTRACT. To preserve morale and to produce the
similarity of conditions necessary to keen competition, the
contracts between all clubs and their players in the Major Leagues
shall be in a single form which shall be prescribed by the Major
League Executive Council. No club shall make a contract different
from the uniform contract or a contract containing a non-reserve
clause, except with the written approval of the Commissioner. . .
."

															" * * * *" "(g) TAMPERING. To preserve discipline and competition, and to
prevent the enticement of players, coaches, managers and umpires,
there shall be no negotiations or dealings respecting employment,
either present or prospective, between any player, coach or manager
and any club other than the club with which he is under contract or
acceptance of terms, or by which he is reserved, or which has the
player on its Negotiation List, or between any umpire and any
league other than the league with which he is under contract or
acceptance of terms, unless the club or league with which he is
connected shall have, in writing, expressly authorized such
negotiations or dealings prior to their commencement."

															B. Rule 9 of the Major League Rules provides in part:

															"(a) NOTICE. A club may assign to another club an existing
contract with a player. The player, upon receipt of written notice
of such assignment, is by his contract bound to serve the
assignee."

															" * * * *" "After the date of such assignment, all rights and obligations
of the assignor clubs thereunder shall become the rights and
obligations of the assignee club. . . ."

															C.Rules 3 and 9 of the Professional Baseball Rules contain
provisions parallel to those just quoted.

															D. The Uniform Player's Contract provides in part:

															"4. (a) . . . The Player agrees that, in addition to other
remedies, the Club shall be entitled to injunctive and other
equitable relief to prevent a breach of this contract by the
Player, including, among others, the right to enjoin the Player
from playing baseball for any other person or organization during
the term of this contract."

															"5. (a). The Player agrees that, while under contract, and prior
to expiration of the Club's right to renew this contract, he will
not play baseball otherwise than for the Club, except that the
Player may participate in post-season games under the conditions
prescribed in the Major League Rules. . . ."

															"6. (a) The Player agrees that this contract may be assigned by
the Club (and reassigned by any assignee Club) to any other Club in
accordance with the Major League Rules and the Professional
Baseball Rules."

															"10. (a) On or before January 15 (or if a Sunday, then the next
preceding business day) of the year next following the last playing
season covered by this contract, the Club may tender to the Player
a contract for the term of that year by mailing the same to the
Player at his address following his signature hereto, or if none be
given, then at his last address of record with the Club. If prior
to the March 1 next succeeding said January 15, the Player and the
Club have not agreed upon the terms of such contract, then on or
before 10 days after said March 1, the Club shall have the right by
written notice to the Player at said address to renew this contract
for the period of one year on the same terms, except that the
amount payable to the Player shall be such as the club shall fix in
said notice; provided, however, that said amount, if fixed by Major
League Club, shall be an amount payable at a rate not less than 80%
of the rate stipulated for the preceding year."

															"(b) The Club's right to renew this contract, as provided in
subparagraph (a) of this paragraph 10, and the promise of the
Player not to play otherwise than with the Club have been taken
into consideration in determining the amount payable under
paragraph 2 hereof."

															[ Footnote 2 ] See generally The Baseball Encyclopedia (1969); L.
Ritter, The Glory of Their Times (1966); 1 & 2 H. Seymour,
Baseball (1960, 1971); 1 & 2 D. Voigt, American Baseball (1966,
1970).

															[ Footnote 3 ]

															These are names only from earlier years. By mentioning some, one
risks unintended omission of others equally celebrated.

															[ Footnote 4 ]

															Millions have known and enjoyed baseball. One writer
knowledgeable in the field of sports almost assumed that everyone
did until, one day, he discovered otherwise:

															"I knew a cove who'd never heard of Washington and Lee,"

															"Of Caesar and Napoleon from the ancient jamboree,"

															"But, bli'me, there are queerer things than anything like
that,"

															"For here's a cove who never heard of 'Casey at the Bat'!"

															" * * * *" "Ten million never heard of Keats, or Shelley, Burns or
Poe;"

															"But they know 'the air was shattered by the force of Casey's
blow';"

															"They never heard of Shakespeare, nor of Dickens, like as
not,"

															"But they know the somber drama from old Mudville's haunted
lot."

															"He never heard of Casey! Am I dreaming? Is it true?"

															"Is fame but windblown ashes when the summer day is
through?"

															"Does greatness fade so quickly and is grandeur doomed to
die"

															"That bloomed in early morning, ere the dusk rides down the
sky?"

															"He Never Heard of Casey" Grantland Rice, The Sportlight, New
York Herald Tribune, June 1, 1926, p. 23.

															[ Footnote 5 ]

															"These are the saddest of possible words,"

															"'Tinker to Evers to Chance.'"

															"Trio of bear cubs, and fleeter than birds,"

															"'Tinker to Evers to Chance.'"

															"Ruthlessly pricking our gonfalon bubble,"

															"Making a Giant hit into a double -- "

															"Words that are weighty with nothing but trouble:"

															"'Tinker to Evers to Chance.'"

															Franklin Pierce Adams, Baseball's Sad Lexicon.

															[ Footnote 6 ]

															George Bernard Shaw, The Sporting News, May 27, 1943, p. 15,
col. 4.

															[ Footnote 7 ]

															Concededly supported by the Major League Baseball Players
Association, the players' collective bargaining representative. Tr.
of Oral Arg. 12.

															[ Footnote 8 ]

															The parties agreed that Flood's participating in baseball in
1971 would be without prejudice to his case.

															[ Footnote 9 ]

															"And properly so. Baseball's welfare and future should not be
for politically insulated interpreters of technical antitrust
statutes, but rather should be for the voters, through their
elected representatives. If baseball is to be damaged by statutory
regulation, let the congressman face his constituents the next
November, and also face the consequences of his baseball voting
record."

															443 F.2d at 272. Cf. Judge Friendly's comments in Salerno v. American League, 429 F.2d 1003, 1005 (CA2
1970), cert. denied sub nom. Salerno v. Kuhn, 400 U.S.
1001 (1971):

															"We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes' happiest days, that the
rationale of Toolson is extremely dubious, and that, to
use the Supreme Court's own adjectives, the distinction between
baseball and other professional sports is 'unrealistic,'
'inconsistent' and 'illogical.'. . . While we should not fall out
of our chairs with surprise at the news that Federal
Baseball and Toolson had been overruled, we are not
at all certain the Court is ready to give them a happy
despatch."

															[ Footnote 10 ]

															"What really saved baseball, legally, at least, for the next
half century was the protective canopy spread over it by the United
States Supreme Court's decision in the Baltimore Federal League
antitrust suit against Organized Baseball in 1922. In it Justice
Holmes, speaking for a unanimous court, ruled that the business of
giving baseball exhibitions for profit was not 'trade or commerce
in the commonly accepted use of those words,' because 'personal
effort, not related to production, is not a subject of commerce;'
nor was it interstate, because the movement of ball clubs across
state lines was merely 'incidental' to the business. It should be
noted that, contrary to what many believe, Holmes did call baseball
a business; time and again, those who have not troubled to read the
text of the decision have claimed incorrectly that the court said
baseball was a sport, and not a business."

															2 . Seymour, Baseball 420 (1971).

															[ Footnote 11 ]

															On remand of the Hart case, the trial court dismissed
the complaint at the close of the evidence. The Second Circuit
affirmed on the ground that the plaintiff's evidence failed to
establish that the interstate transportation was more than
incidental. 12 F.2d 341 (1926). This Court denied certiorari, 273
U.S. 703 (1926).

															[ Footnote 12 ] Toolson v. New York Yankees, Inc., 101 F. Supp.
93 (SD Cal.1951), aff'd, 200 F.2d 198 (CA9 1952); Kowalski v. Chandler, 202 F.2d 413 (CA6 1953). See
Salerno v. American League, 429 F.2d 1003 (CA2 1970), cert. denied sub nom. Salerno v. Kuhn, 400 U.S. 1001
(1971). But cf. Gardella v. Chandler, 172 F.2d 402 (CA2
1949) (this case, we are advised, was subsequently settled); Martin v. National League Baseball Club, 174 F.2d 917 (CA2
1949).

															[ Footnote 13 ] Corbett v. Chandler, 202 F.2d 428 (CA6 1953); Portland Baseball Club, Inc. v. Baltimore Baseball Club,
Inc., 282 F.2d 680 (CA9 1960); Niemiec v. Seattle Rainier
Baseball Club, Inc., 67 F. Supp.
705 (WD Wash.1946). See State v. Milwaukee Braves,
Inc., 31 Wis.2d 699, 144 N.W.2d 1, cert. denied, 385
U.S. 990 (1966).

															[ Footnote 14 ]

															The case's final chapter is International Boxing Club v.
United States, 358 U. S. 242 (1959).

															[ Footnote 15 ] See also Denver Rockets v. All-Pro Management,
Inc., 325 F.
Supp. 1049 , 1060 (CD Cal.1971); Washington Professional
Basketball Corp. v. National Basketball Assn., 147 F.
Supp. 154 (SDNY 1956).

															[ Footnote 16 ]

															Neville, Baseball and the Antitrust Laws, 16 Fordham L.Rev. 208
(1947); Eckler, Baseball -- Sport or Commerce?, 17 U.Chi.L.Rev. 56
(1949); Comment, Monopsony in Manpower: Organized Baseball Meets
the Antitrust Laws, 62 Yale L.J. 576 (1953); P. Gregory, The
Baseball Player, An Economic Study, c.19 (1956); Note, The Super
Bowl and the Sherman Act: Professional Team Sports and the
Antitrust Laws, 81 Harv.L.Rev. 418 (1967); The Supreme Court, 1953
Term, 68 Harv.L.Rev. 105, 136-138 (1954); The Supreme Court, 1956
Term, 71 Harv.L.Rev. 94, 170-173 (1957); Note, 32 Va.L.Rev. 1164
(1946); Note, 24 Notre Dame Law. 372 (1949); Note, 53 Col.L.Rev.
242 (1953); Note, 22 U.Kan.City L.Rev. 173 (1954); Note, 25
Miss.L.J. 270 (1954); Note, 29 N.Y.U.L.Rev. 213 (1954); Note, 105
U.Pa.L.Rev. 110 (1956); Note, 32 Texas L.Rev. 890 (1954); Note, 35
B.U.L.Rev. 447 (1955); Note, 57 Col.L.Rev. 725 (1957); Note, 23
Geo.Wash.L.Rev. 606 (1955); Note, 1 How.L, J. 281 (1955); Note, 26
Miss.L.J. 271 (1955); Note, 9 Sw.L.J. 369 (1955); Note, 29 Temple
L.Q. 103 (1955); Note, 29 Tul,L.Rev. 793 (1955); Note, 62
Dick.L.Rev. 96 (1957); Note, 11 Sw.L.J. 516 (1957); Note, 36
N.C.L.Rev. 315 (1958); Note, 35 Fordham L.Rev. 350 (1966); Note, 8
B.C.Ind. & Com.L.Rev. 341 (1967); Note, 13 Wayne L.Rev. 417
(1967); Note, 2 Rutgers-Camden L.J. 302 (1970); Note, 8 San Diego
L.Rev. 92 (1970); Note, 12 B. C Ind. & Com.I.Rev. 737 (1971);
Note, 12 Wm. & Mary L.Rev. 859 (1971).

															[ Footnote 17 ]

															Hearings on H.R. 5307 et al. before the Antitrust
Subcommittee of the House Committee on the Judiciary, 85th Cong.,
1st Sess. (1957); Hearings on H.R. 10378 and S. 4070 before the
Subcommittee on Antitrust and Monopoly of the Senate Committee on
the Judiciary, 85th Cong., 2d Sess. (1958); Hearings on H.R. 2370 et al. before the Antitrust Subcommittee of the House
Committee on the Judiciary, 86th Cong., 1st Sess. (1959) (not
printed); Hearings on S. 616 and S. 886 before the Subcommittee on
Antitrust and Monopoly of the Senate Committee on the Judiciary,
86th Cong., 1st Sess. (1959); Hearings on S. 3483 before the
Subcommittee on Antitrust and Monopoly of the Senate Committee on
the Judiciary, 86th Cong., 2d Sess. (1960); Hearings on S. 2391
before the Subcommittee on Antitrust and Monopoly of the Senate
Committee on the Judiciary, 88th Cong., 2d Sess (1964); S.Rep. No.
1303, 88th Cong., 2d Sess. (1964); Hearings on S. 950 before the
Subcommittee on Antitrust and Monopoly of the Senate Committee on
the Judiciary, 89th Cong., 1st Sess. (1965); S.Rep. No. 462, 89th
Cong., 1st Sess. (1965). Bills introduced in the 92d Cong., 1st
Sess., and bearing on the subject are S. 2599, S. 2616, H.R. 2305,
H.R. 11033, and H.R. 10825.

															[ Footnote 18 ]

															Title 15 U.S.C. § 1294 reads:

															"Nothing contained in this chapter shall be deemed to change,
determine, or otherwise affect the applicability or nonapplicability of the antitrust laws to any act,
contract, agreement, rule, course of conduct, or other activity by,
between, or among persons engaging in, conducting, or participating
in the organized professional team sports of football, baseball,
basketball, or hockey, except the agreements to which section 1291
of this title shall apply."

															(Emphasis supplied.)

															[ Footnote 19 ] Peto v. Madison Square Garden Corp., 1958 Trade Cases,
� 69,106 (SDNY 1958).

															[ Footnote 20 ] Deesen v. Professional Golfers' Assn., 358 F.2d 165
(CA9), cert. denied, 385 U.S. 846 (1966).

															[ Footnote 21 ] See Brief for Respondent in Federal Baseball, No. 204, O.T. 1921, p. 67, and in Toolson, No. 18, O.T.
1953, p. 30. See also State v. Milwaukee Braves, Inc., 31
Wis.2d 699, 144 N.W.2d 1, cert. denied, 385 U.S. 990
(1966).

															[ Footnote 22 ] See Jacobs & Winter, Antitrust Principles and,
Collective Bargaining by Athletes: Of Superstars in Peonage, 81
Yale L.J. 1 (1971), suggesting present-day irrelevancy of the
antitrust issue.

															MR. CHIEF JUSTICE BURGER, concurring.

															I concur in all but Part I of the Court's opinion but, like MR.
JUSTICE DOUGLAS, I have grave reservations Page 407 U. S. 286 as to the correctness of Toolson v. New York Yankees,
Inc., 346 U. S. 356 (1953); as he notes in his dissent, he joined that holding but has
"lived to regret it." The error, if such it be, is one on which the
affairs of a great many people have rested for a long time. Courts
are not the forum in which this tangled web ought to be unsnarled.
I agree with MR. JUSTICE DOUGLAS that congressional inaction is not
a solid base, but the least undesirable course now is to let the
matter rest with Congress; it is time the Congress acted to solve
this problem.

															MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN concurs,
dissenting.

															This Court's decision in Federal Baseball Club v. National
League, 259 U. S. 200 ,
made in 1922, is a derelict in the stream of the law that we, its
creator, should remove. Only a romantic view [ Footnote 2/1 ] of a rather dismal business account over
the last 50 years would keep that derelict in midstream.

															In 1922, the Court had a narrow, parochial view of commerce.
With the demise of the old landmarks of that era, particularly United States v. Knight Co., 156 U. S.
1 , Hammer v. Dagenhart, 247 U.
S. 251 , and Paul v.
Virginia , 8 Wall. 168, the whole concept of
commerce has changed.

															Under the modern decisions such as Mandeville Island Farms
v. American Crystal Sugar Co., 334 U.
S. 219 ; United States v. Darby, 312 U.
S. 100 ; Wickard v. Filburn, 317 U.
S. 111 ; United States v. South-Eastern Underwriters
Assn., 322 U. S. 533 , the
power of Congress was recognized as broad enough to reach all
phases of the vast operations of our national industrial
system. Page 407 U. S. 287 An industry so dependent on radio and television as is baseball
and gleaning vast interstate revenues ( see H.R.Rep. No.
2002, 82d Cong., 2d Sess., 4, 5 (1952)) would be hard put today to
say with the Court in the Federal Baseball Club case that
baseball was only a local exhibition, not trade or commerce.

															Baseball is today big business that is packaged with beer, with
broadcasting, and with other industries. The beneficiaries of the Federal Baseball Club decision are not the Babe Ruths, Ty
Cobbs, and Lou Gehrigs.

															The owners, whose records many say reveal a proclivity for
predatory practices, do not come to us with equities. The equities
are with the victims of the reserve clause. I use the word
"victims" in the Sherman Act sense, since a contract which forbids
anyone to practice his calling is commonly called an unreasonable
restraint of trade. [ Footnote 2/2 ] Gardella v. Chandler, 172 F.2d 402 (CA2). And see
Haywood v. National Basketball Assn., 401 U.
S. 1204 (DOUGLAS, J., in chambers).

															If congressional inaction is our guide, we should rely upon the
fact that Congress has refused to enact bills broadly exempting
professional sports from antitrust regulation. [ Footnote 2/3 ] H.R.Rep. No. 2002, 82d Cong., 2d
Sess. Page 407 U. S. 288 (1952). The only statutory exemption granted by Congress to
professional sports concerns broadcasting rights. 15 U.S.C. §§
1291-1295. I would not ascribe a broader exemption through inaction
than Congress has seen fit to grant explicitly.

															There can be no doubt "that, were we considering the question of
baseball for the first time upon a clean slate" [ Footnote 2/4 ] we would hold it to be subject to
federal antitrust regulation. Radovich v. National Football
League, 352 U. S. 445 , 352 U. S. 452 .
The unbroken silence of Congress should not prevent us from
correcting our own mistakes.

															[ Footnote 2/1 ]

															While I joined the Court's opinion in Toolson v. New York
Yankee, Inc., 346 U. S. 356 , I
have lived to regret it; and I would now correct what I believe to
be its fundamental error.

															[ Footnote 2/2 ]

															Had this same group boycott occurred in another industry, Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.
S. 207 ; United States v. Shubert, 348 U.
S. 222 ; or even in another sport, Haywood v.
National Basketball Assn., 401 U. S. 1204 (DOUGLAS, J., in chambers); Radovich v. National Football
League, 352 U. S. 445 ; United States v. International Boxing Club, 348 U.
S. 236 , we would have no difficulty in sustaining
petitioner's claim.

															[ Footnote 2/3 ]

															The Court's reliance upon congressional inaction disregards the
wisdom of Helvering v. Hallock, 309 U.
S. 106 , 309 U. S.
119 -121, where we said:

															"Nor does want of specific Congressional repudiations . . .
serve as an implied instruction by Congress to us not to
reconsider, in the light of new experience . . . those decisions. .
. . It would require very persuasive circumstances enveloping
Congressional silence to debar this Court from reexamining its own
doctrines. . . . Various considerations of parliamentary tactics
and strategy might be suggested as reasons for the inaction of . .
. Congress, but they would only be sufficient to indicate that we
walk on quicksand when we try to find, in the absence of corrective
legislation, a controlling legal principle."

															And see United States v. South-Eastern Underwriters Assn., 322 U. S. 533 , 322 U. S.
556 -561.

															[ Footnote 2/4 ]

															This case gives us for the first time a full record showing the
reserve clause in actual operation.

															MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.

															Petitioner was a major league baseball player from 1956, when he
signed a contract with the Cincinnati Reds, until 1969, when his
12-year career with the St. Louis Cardinals, which had obtained him
from the Reds, ended and he was traded to the Philadelphia
Phillies. He had no notice that the Cardinals were contemplating a
trade, no opportunity to indicate the teams with which he would
prefer playing, and no desire to go to Philadelphia. After
receiving formal notification of the trade, petitioner wrote to the
Commissioner of Baseball protesting that he was not Page 407 U. S. 289 "a piece of property to be bought and sold irrespective of my
wishes," [ Footnote 3/1 ] and urging
that he had the right to consider offers from other teams than the
Phillies. He requested that the Commissioner inform all of the
major league teams that he was available for the 1970 season. His
request was denied, and petitioner was informed that he had no
choice but to play for Philadelphia or not to play at all.

															To non-athletes, it might appear that petitioner was virtually
enslaved by the owners of major league baseball clubs who bartered
among themselves for his services. But athletes know that it was
not servitude that bound petitioner to the club owners; it was the
reserve system. The essence of that system is that a player is
bound to the club with which he first signs a contract for the rest
of his playing days. [ Footnote 3/2 ]
He cannot escape from the club except by retiring, and he cannot
prevent the club from assigning his contract to any other club.

															Petitioner brought this action in the United States District
Court for the Southern District of New York. He alleged, among
other things, that the reserve system was an unreasonable restraint
of trade in violation of Page 407 U. S. 290 federal antitrust laws. [ Footnote
3/3 ] The District Court thought itself bound by prior decisions
of this Court, and found for the respondents after a full trial. 309 F.
Supp. 793 (1970). The United States Court of Appeals for the
Second Circuit affirmed. 443 F.2d 264 (1971). We granted certiorari
on October 19, 1971, 404 U.S. 880, in order to take a further look
at the precedents relied upon by the lower courts.

															This is a difficult case because we are torn between the
principle of stare decisis and the knowledge that the
decisions in Federal Baseball Club v. National League, 259 U. S. 200 (1922), and Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953), are totally at odds with more recent and better reasoned
cases.

															In Federal Baseball Club, a team in the Federal League
brought an antitrust action against the National and American
Leagues and others. In his opinion for a unanimous Court, Mr.
Justice Holmes wrote that the business being considered was "giving
exhibitions of baseball, which are purely state affairs." 259 U.S.
at 259 U. S. 208 .
Hence, the Court held that baseball was not within the purview of
the antitrust laws. Thirty-one years later, the Court reaffirmed
this decision, without reexamining it, in Toolson, a
one-paragraph per curiam opinion. Like this case, Toolson involved an attack on the reserve system. The
Court said:

															"The business has . . . been left for thirty years to develop,
on the understanding that it was not Page 407 U. S. 291 subject to existing antitrust legislation. The present cases ask
us to overrule the prior decision and, with retrospective effect,
hold the legislation applicable. We think that, if there are evils
in this field which now warrant application to it of the antitrust
laws, it should be by legislation." Id. at 346 U. S.
357 .

															Much more time has passed since Toolson, and Congress
has not acted. We must now decide whether to adhere to the
reasoning of Toolson -- i.e., to refuse to
reexamine the underlying basis of Federal Baseball Club --
or to proceed with a reexamination and let the chips fall where
they may.

															In his answer to petitioner's complaint, the Commissioner of
Baseball "admits that, under present concepts of interstate
commerce, defendants are engaged therein." App. 40. There can be no
doubt that the admission is warranted by today's reality. Since
baseball is interstate commerce, if we reexamine baseball's
antitrust exemption, the Court's decisions in United States v.
Shubert, 348 U. S. 222 (1955), United States v. International Boxing Club, 348 U. S. 236 (1955), and Radovich v. National Football League, 352 U. S. 445 (1957), require that we bring baseball within the coverage of the
antitrust laws. See also Haywood v. National Basketball
Assn., 401 U. S. 1204 (DOUGLAS, J., in chambers).

															We have only recently had occasion to comment that:

															"Antitrust laws in general, and the Sherman Act in particular,
are the Magna Carta of free enterprise. They are as important to
the preservation of economic freedom and our free enterprise system
as the Bill of Rights is to the protection of our fundamental
personal freedoms. . . . Implicit in such freedom is the notion
that it cannot be foreclosed with respect to one sector of the
economy Page 407 U. S. 292 because certain private citizens or groups believe that such
foreclosure might promote greater competition in a more important
sector of the economy."

															" United States v. Topco Associates, Inc., 405 U. S.
596 , 405 U. S. 610 (1972). The
importance of the antitrust laws to every citizen must not be
minimized. They are as important to baseball players as they are to
football players, lawyers, doctors, or members of any other class
of workers. Baseball players cannot be denied the benefits of
competition merely because club owners view other economic
interests as being more important, unless Congress says so."

															Has Congress acquiesced in our decisions in Federal
Baseball Club and Toolson? I think not. Had the Court
been consistent and treated all sports in the same way baseball was
treated, Congress might have become concerned enough to take
action. But, the Court was inconsistent, and baseball was isolated
and distinguished from all other sports. In Toolson, the
Court refused to act because Congress had been silent. But the
Court may have read too much into this legislative inaction.

															Americans love baseball, as they love all sports. Perhaps we
become so enamored of athletics that we assume that they are
foremost in the minds of legislators, as well as fans. We must not
forget, however, that there are only some 600 major league baseball
players. Whatever muscle they might have been able to muster by
combining forces with other athletes has been greatly impaired by
the manner in which this Court has isolated them. It is this Court
that has made them impotent, and this Court should correct its
error.

															We do not lightly overrule our prior constructions of federal
statutes, but when our errors deny substantial federal rights, like
the right to compete freely and effectively to the best of one's
ability as guaranteed by the Page 407 U. S. 293 antitrust laws, we must admit our error and correct it. We have
done so before, and we should do so again here. See, e.g.,
Blonder-Tongue Laboratories, Inc. v. University of Illinois
Foundation, 402 U. S. 313 (1971); Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235 , 398 U. S. 241 (1970). [ Footnote 3/4 ]

															To the extent that there is concern over any reliance interests
that club owners may assert, they can be satisfied by making our
decision prospective only. Baseball should be covered by the
antitrust laws beginning with this case and henceforth, unless
Congress decides otherwise. [ Footnote
3/5 ]

															Accordingly, I would overrule Federal Baseball Club and Toolson, and reverse the decision of the Court of Appeals.
[ Footnote 3/6 ]

															This does not mean that petitioner would necessarily prevail,
however. Lurking in the background is a hurdle of recent vintage
that petitioner still must overcome. Page 407 U. S. 294 In 1966, the Major League Players Association was formed. It is
the collective bargaining representative for all major league
baseball players. Respondents argue that the reserve system is now
part and parcel of the collective bargaining agreement, and that,
because it is a mandatory subject of bargaining, the federal labor
statutes are applicable, not the federal antitrust laws. [ Footnote 3/7 ] The lower courts did not rule
on this argument, having decided the case solely on the basis of
the antitrust exemption.

															This Court has faced the interrelationship between the antitrust
laws and the labor laws before. The decisions make several things
clear. First, "benefits to organized labor cannot be utilized as a
cat's paw to pull employer's chestnuts out of the antitrust fires." United States v. Women's Sportswear Manufacturers Assn., 336 U. S. 460 , 336 U. S. 464 (1949). See also Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797 (1945). Second, the very nature of a collective bargaining
agreement mandates that the parties be able to "restrain" trade to
a greater degree than management could do unilaterally. United
States v. Hutcheson, 312 U. S. 219 (1941); United Mine Workers v. Pennington, 381 U.
S. 657 (1965); Amalgamated Meat Cutters v. Jewel
Tea, 381 U. S. 676 (1965); cf. Teamsters Union v. Oliver, 358 U.
S. 283 (1959). Finally, it is clear that some cases can
be resolved only by examining the purposes and the competing
interests of the labor and antitrust statutes, and by striking a
balance.

															It is apparent that none of the prior cases is precisely in
point. They involve union-management agreements that work to the
detriment of management's competitors. In this case, petitioner
urges that the reserve system works to the detriment of labor. Page 407 U. S. 295 While there was evidence at trial concerning the collective
bargaining relationship of the parties, the issues surrounding that
relationship have not been fully explored. As one commentary has
suggested, this case

															"has been litigated with the implications for the institution of
collective bargaining only dimly perceived. The labor law issues
have been in the corners of the case -- the courts below, for
example, did not reach them -- moving in and out of the shadows
like an uninvited guest at a party whom one can't decide either to
embrace or expel. [ Footnote
3/8 ]"

															It is true that, in Radovich v. National Football League,
supra, the Court rejected a claim that federal labor statutes
governed the relationship between a professional athlete and the
professional sport. But an examination of the briefs and record in
that case indicates that the issue was not squarely faced. The
issue is once again before this Court without being clearly
focused. It should, therefore, be the subject of further inquiry in
the District Court.

															There is a surface appeal to respondents' argument that
petitioner's sole remedy lies in filing a claim with the National
Labor Relations Board, but this argument is premised on the notion
that management and labor have agreed to accept the reserve clause.
This notion is contradicted, in part, by the record in this case.
Petitioner suggests that the reserve system was thrust upon the
players by the owners, and that the recently formed players' union
has not had time to modify or eradicate it. If this is true, the
question arises as to whether there would then be any exemption
from the antitrust laws in this case. Petitioner also suggests that
there are limits Page 407 U. S. 296 to the antitrust violations to which labor and management can
agree. These limits should also be explored.

															In light of these considerations, I would remand this case to
the District Court for consideration of whether petitioner can
state a claim under the antitrust laws despite the collective
bargaining agreement, and, if so, for a determination of whether
there has been an antitrust violation in this case.

															[ Footnote 3/1 ]

															Letter from Curt Flood to Bowie K. Kuhn, Dec. 24, 1969, App.
37.

															[ Footnote 3/2 ]

															As MR. JUSTICE BLACKMUN points out, the reserve system is not
novel. It has been employed since 1887. See Metropolitan
Exhibition Co. v. Ewing, 42 F. 198, 202-204 (CC SDNY 1890).
The club owners assert that it is necessary to preserve effective
competition and to retain fan interest. The players do not agree,
and argue that the reserve system is overly restrictive. Before
this lawsuit was instituted, the players refused to agree that the
reserve system should be a part of the collective bargaining
contract. Instead, the owners and players agreed that the reserve
system would temporarily remain in effect while they jointly
investigated possible changes. Their activity along these lines has
halted pending the outcome of this suit.

															[ Footnote 3/3 ]

															Petitioner also alleged a violation of state antitrust laws,
state civil rights laws, and of the common law, and claimed that he
was forced into peonage and involuntary servitude in violation of
the Thirteenth Amendment to the United States Constitution. Because
I believe that federal antitrust laws govern baseball, I find that
state law has been preempted in this area. Like the lower courts, I
do not believe that there has been a violation of the Thirteenth
Amendment.

															[ Footnote 3/4 ]

															In the past, this Court has not hesitated to change its view as
to what constitutes interstate commerce. Compare United States
v. Knight Co., 156 U. S. 1 (1895), with Mandeville Island Farms v. American Crystal Sugar
Co., 334 U. S. 219 (1948), and United States v. Darby, 312 U.
S. 100 (1941).

															"The jurist concerned with 'public confidence in, and acceptance
of the judicial system' might well consider that, however admirable
its resolute adherence to the law as it was, a decision contrary to
the public sense of justice as it is operates, so far as it is
known, to diminish respect for the courts and for law itself."

															Szanton, Stare Decisis: A Dissenting View, 10 Hastings
L.J. 394, 397 (1959).

															[ Footnote 3/5 ]

															We said recently that,

															"[i]n rare cases, decisions construing federal statutes might be
denied full retroactive effect, as, for instance, where this Court
overrules its own construction of a statute. . . ."

															" United States v. Estate of Donnelly, 397 U. S.
286 , 397 U. S. 295 (1970). Cf. Simpson v. Union Oil Co. of California, 377 U. S.
13 , 377 U. S. 25 (1964)."

															[ Footnote 3/6 ]

															The lower courts did not reach the question of whether, assuming
the antitrust laws apply, they have been violated. This should be
considered on remand.

															[ Footnote 3/7 ] Cf. United States v. Hutcheson, 312 U.
S. 219 (1941).

															[ Footnote 3/8 ]

															Jacobs & Winter, Antitrust Principles and Collective
Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L.J. 1,
22 (1971).

Summary: The Supreme Court upheld the longstanding exemption of professional baseball from antitrust laws, despite the player's argument that the reserve system was overly restrictive and violated state antitrust and civil rights laws. The Court acknowledged the inconsistency in exempting baseball while other professional sports were not, but deferred to Congress to resolve the matter.