written by Oliver Wendell Holmes, the Supreme Court decided in 1922 that baseball is not commerce
and the antitrust laws did not apply. Although interstate commerce doctrine has changed mightily
since then, and all other sports have been brought under the interstate commerce umbrella, baseball
still has its antitrust exemption, due to the application of the principle of stare decisis [“let what is
The interest in Congress over the use of steriods by baseball players has renewed the issue. Two days
ago, I asked if any one knew the current status of baseball under the Commerce Clause. Today, Greg
at Sports Law Blog has strongly reiterated his belief that baseball is interstate commerce, disagreeing with Fed84. Besides all the factual and doctrinal reasons that support this conclusion, Greg points to one
“Professional baseball is a business and it is engaged in interstate commerce.”
And, Greg adds: “If it was true in 1972, I have to imagine it is true today.” I would hope that common
sense prevails and baseball would be once and for all included within the Commerce Clause (and lose its
antitrust exemption). However, I must note that the sentence from Flood is strictly speaking dictum, as the
issue did not have to be reached by the Court, which upheld the Federal Club antitrust exemption,
explaining:
“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.”
I believe Greg was correct when he said, on December 6, that Congress might use the threat to
withdraw baseball’s antitrust exemption as leverage to get baseball to fix the steroid problem on its own.
[Of course, that would pit the players’ interest in having the antitrust exemption removed with the owners’
desire to keep the exemption.]
Two parting thoughts: (1) it will be interesting to see how this conservative Supreme Court deals with both
the Commerce Clause and stare decisis in a number of cases in the next few years; consistency? activism?
(2) The Federal Club case indicates that even so venerable a justice as Oliver W. Holmes can come to a conclusion in a Commerce Clause case that seems to be based on personal whim rather than on precedent
and common sense (see the discussion in Flood, 407 U.S. 258, 271, showing there were precedent by the
likes of Learned Hand, Justice Harlan, and Holmes himself that pointed to finding baseball to be commerce). Folks might keep that in mind when predicting the results in the pendng wine shipping and medical marijuana
cases.
Lawyer, Oct. 2005). Fein gives the history of the exemption and shows how it has harmed fans in
the District of Columbia.
Most days, I think age is mostly a mind thing, but today is my last day in my 
Best wishes to Mike “the Fedster” Cernovich at 
Bummer. I completely missed the radio ads sponsored again this year by the 