# Flood v. Kuhn/Dissent Douglas

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* Opinion of the Court
* Concurring Opinion Burger
* Dissenting Opinions Douglas Marshall
[p286] 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 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. [p287] 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. 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. H.R. Rep. No. 2002, 82d Cong., 2d Sess. [p288] (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" we would hold it to be subject to federal antitrust regulation. Radovich v. National Football League, 352 U.S. 445, 452. The unbroken silence of Congress should not prevent us from correcting our own mistakes.

## Notes

* ↑ While I joined the Court's opinion in Toolson v. New York Yankees, Inc., 346 U.S. 356, I have lived to regret it; and I would now correct what I believe to be its fundamental error.
* ↑ 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.
* ↑ The Court's reliance upon congressional inaction disregards the wisdom of Helvering v. Hallock, 309 U.S. 106, 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 re-examining 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, 556-561.
* ↑ This case gives us for the first time a full record showing the reserve clause in actual operation.