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Original Issue


For 35 years, the men who run organized baseball have huddled under a legal umbrella raised for them by Justice Oliver Wendell Holmes of the Supreme Court in 1922 and steadied in their grasp by another high court decision in 1953. The umbrella is now leaking badly.

This was the deeper significance of a 6-3 decision of the Supreme Court last week which was primarily directed at the status of professional football. The court ruled that—whatever else it is—pro football is a business engaged in interstate commerce and therefore subject to the antitrust laws.

It was Justice Tom C. Clark, reading the court decision, who brought up baseball. Were it not for the "umbrella" raised in 1922, he said, "were we considering the question of baseball for the first time upon a clean slate, we would have no doubts." I.e., baseball would be ruled a business too.

While the first effect of the decision was to throw professional football's owners and league officials into a state of near-hysteria (NFL Commissioner Bert Bell delivered a ringing non sequitur that sought to prove there was very little money to be made in the game), there was also an almost immediate flurry of action in Congress.

Accepting Justice Clark's tacit invitation to clarify baseball's special status, Representative Oren Harris, a Democrat of Arkansas, introduced a bill which would not only keep the umbrella over baseball but enlarge it to cover pro football, basketball and hockey as well. "If the federal government sticks its nose into sports," he said, "sooner or later the American people will lose their principal form of entertainment."

But across the floor of the House Representative Patrick J. Hillings, Republican of California, denounced organized baseball as a "horsehide cartel" and introduced a bill to remove the umbrella entirely.

Representative Emanuel Celler, New York Democrat who was chairman of a House Judiciary subcommittee that investigated baseball—inconclusively—in 1951, spoke in favor of the Hillings bill. He said that the Supreme Court should now redefine baseball as a business in the same category as football. "You can't," he said, "call one a fish and the other a fowl."

Most baseball men preferred to say nothing. When they did speak, they tried to be brave.

"We are not involved," said Ford Frick, baseball's commissioner.

"As far as baseball is concerned," said Frick's attorney, Lou Carroll, "the Supreme Court decision merely reaffirms the decisions of 1922 and 1953 which declared baseball to be a sport and not a business."

"Baseball will be given time"

But J. Norman Lewis, the outspoken attorney for the Major League Baseball Players Association, saw Justice Clark's decision as the beginning of the end for baseball's favored status.

"What will happen now is easy to see. Congress has already taken action. There will be hearings and witnesses representing the owners, and players will be heard. It will be clear to everyone that baseball is, in fact, a business and must conform to antitrust laws.

"However, because of baseball's unique position and because owners allowed themselves to believe that the decisions of the Supreme Court in 1922 and 1953 would stand forever, baseball will be given time to make the necessary changes gradually. Football did not get this special consideration, but baseball will."

As for the reserve clause, binding a ballplayer to one club for life unless he is sold or traded, Lewis believes it is doomed. "As I pointed out," he said, "baseball will be given time to find other forms of contract. What they will be I don't know. Maybe something like the contracts motion picture companies give to actors."

Whether Lewis was right or Frick was correct in assuming baseball's non-involvement in the pro football decision, one thing was sure: it was quite another world when the court first gave the game protective status.

Six months before Grantland Rice described the first World Series by radio in the fall of that year, Secretary of Commerce Herbert Hoover opened a Washington conference of radio broadcasters and manufacturers by declaring: "We have witnessed in the last four or five months one of the most astounding things that has come under my observation of American life. This department estimates that today more than 600,000 persons possess wireless telephone receiving sets, whereas there were less than 50,000 sets a year ago." As Mr. Hoover spoke, people were lined up four deep at sales counters, and one manufacturer was wildly predicting that the market would not be saturated until 5 million sets were sold.

Radio (there are 143 million sets in use today) did not enter into the Supreme Court's reasoning in 1922. Nor did television which was then only a Sunday supplement dream. What did matter to the Supreme Court, in deciding against the Federal League's charge of monopoly against the two major leagues, was the lower court's contention that baseball was as innocent of interstate commerce as a firm of lawyers sending one of their number across a state line to try a case, or a lecture bureau sending a Chautauqua lecturer out on tour.

The umbrella was raised and it kept the club owners snug and their powder dry until 1949. Then one Danny Gardella, a former outfielder for the New York Giants, filed a suit for $300,000 against all baseball, charging that under the monopolistic reserve clause he had been denied reinstatement in the majors after walking out on the Giants to play a season in the Mexican League.

The federal district court judge who heard the case, explaining that he was bound by the 1922 Supreme Court decision, nevertheless expressed the unofficial suspicion that the Court of Appeals might reinstate the case. The higher court did just that and for a brand-new reason. It held that interstate broadcasting and televising of baseball games had altered the situation since 1922. The 1922 decision, the late Judge Jerome Frank said, was an "impotent zombie."

This was enough for A. B. (Happy) Chandler, then commissioner of baseball. He hastily passed the hat among the club owners and made an out-of-court settlement (reported to be $100,000) with Danny Gardella.

But although the Gardella threat was thus circumvented, the case had the effect of encouraging a New York Yankee farm hand, George Toolson, to go into court and charge that baseball was an illegal monopoly (he had been placed on the ineligible list for refusing to report to a minor league club) and that baseball's reserve clause made him a victim of blacklisting.

When the Toolson case reached the Supreme Court, Chief Justice Warren, delivering the majority opinion, said that baseball had been permitted to function for more than 30 years (and to invest heavily in the game's plant) on the assumption that it was protected by the Holmes decision. Congress, having done nothing to alter the situation, Chief Justice Warren and his associates said they would not disturb the prevailing decision that baseball was more sport than business.

So much for Toolson, baseball men thought. But they had not heard the last of Toolson.

The Lions said no

Came now William Radovich, formerly a guard with the Detroit Lions. He sued the National Football League, Commissioner Bert Bell of the NFL, J. Rufus Klawans, commissioner of the Pacific Coast League and all member teams of the National League at the time of his alleged "blacklisting." Radovich detailed how, in 1946, he asked the Detroit Lions to transfer him to Los Angeles because of the illness of his father. The transfer refused, he signed with the Los Angeles Dons of the All-America Conference which was not an NFL affiliate. Then, in 1948, he was offered a job as player-coach with the San Francisco Clippers of the Pacific Coast League.

Thereupon, charged Radovich, the National Football League informed the Clippers (as an NFL affiliate) that they could not sign him because he had broken his Detroit contract in jumping to the Los Angeles Dons.

Before the Radovich case reached the Supreme Court, a lower court had dismissed his complaint, taking the view that professional football was a team sport, as professional baseball was, and as such was entitled to the same immunity from the antitrust laws. Thus, the National Football League felt that baseball's umbrella covered its case as well.

In a dissenting opinion last week, Justice Felix Frankfurter agreed with the NFL view. But Justice Clark and the majority granted Radovich the right to go back to the lower court and seek to prove that the NFL and the other defendants did in fact violate the antitrust laws to which (as is now established) they are subject. If Radovich succeeds, he may be awarded as much as $105,000 in treble damages.

But that is not the question of the hour. The question is: how can professional football (as professional boxing was earlier) be called a business and not a sport if baseball is to continue to enjoy the protection of Justice Holmes's old umbrella?

A fact that no legal brief and no court decision can acknowledge adequately is baseball's unique place in the affections of all the people—not excluding Congressmen. Killing baseball would be like killing Santa Claus or the television actor who plays the part of Wyatt Earp.

But would baseball's reclassification as a business necessarily do that? Elder Statesman Branch Rickey said at the Florida training camp of the Pittsburgh Pirates last week: "I cannot conceive of baseball surviving without the reserve clause. Without it, there would be chaos. I do not believe anybody wants that to happen."

Nobody does. But baseball has had to adapt itself to many a change since 1922 and perhaps, if the worst happens, the game could learn to get along without that old umbrella.



DANNY GARDELLA attacked baseball's reserve clause, but settled case out of court.


WILLIAM RADOVICH charged blacklisting, won decision in the U.S. Supreme Court.


GEORGE TOOLSON branded baseball a monopoly, but court followed precedents.


PRO UMBRELLA, Congressman Harris asks that other sports be given baseball status.


ANTI UMBRELLA, Congressman Hillings charges the game is a "horsehide cartel."


NO UMBRELLA MAN, Congressman Celler wants baseball to be declared a business too.