The request that the Supreme Court hear the case for revoking Major League Baseball’s century-old antitrust exemption could upend the legal status of a multibillion-dollar industry that also happens to be America’s pastime. 

It has been a lousy season for the Yankees and Mets, but it could be an even worse year for professional baseball, which could soon be in the bottom of the ninth with respect to its lucrative era of antitrust impunity. 

The challenge to baseball’s hegemony comes from a suite of minor league teams, the Staten Island Yankees, the Tri-City ValleyCats, the Norwich Sea Unicorns, and the Salem-Keizer Volcanoes. Those teams were among the 40 that Major League Baseball eliminated in 2021 in a cost-cutting move. 

The Supreme Court’s “longest-lived mistake,” the teams assert, is baseball’s judicial exemption from the Sherman Antitrust Act. That law, passed in 1890 with President Harrison’s signature, banned anticompetitive agreements as well as conduct that monopolizes or attempts to monopolize a market. 

The ValleyCats and Sea Unicorns call baseball’s culling of minor league clubs the “zenith” of the sport’s “anticompetitive abuses.” They warn that “having destroyed forty businesses in one fell swoop, MLB will only be further emboldened if the Court denies review here.” The clubs insist that there “is no democratic consensus” for baseball’s immunity because Congress “never enacted a law” codifying it.

The teams write that “there is no reasonable justification” for baseball’s “special legal exemption from antitrust litigation, a historical aberration that is not extended to other professional sports leagues.” They ask the Supreme Court to “hold professional baseball to the same standards as any other professional sports league.”

The first section of the Sherman Act mandates, “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.”

If the teams persuade the high court that it applies to baseball, their case will be remanded to lower courts, where they will be statutorily empowered to sue MLB for treble damages and, possibly, an injunction barring it from taking action against them.    

Like an ace closer warming up in the bullpen, the government appears set to come in against MLB. The Department of Justice has taken the position that the exemption “does not rest on any substantive policy interests,” is of “dubious validity,” and does not “reconcile competing legal authorities or substantive policy goals.” 

Over the course of the 20th century and into the 21st, the clubs assert, the “baseball exemption has metastasized into a sweeping immunity that permits MLB to engage in brazenly anticompetitive behavior.” They urge the high court to “at long last, welcome America’s pastime into America’s free enterprise system.” One legal sage, Stuart Banner, writes that “scarcely anyone believes that baseball’s exemption makes any sense.”

Baseball’s antitrust exemption, which no other sport boasts, dates to a slender 1922 opinion from Justice Oliver Wendell Holmes, in Federal Baseball Club of Baltimore, Inc. v. National League Professional Baseball Clubs. Holmes found that the “business of giving exhibitions of baseball” are “purely state affairs,” and thus exempt from the strictures of the Sherman Act. 

Holmes wrote for a unanimous court that allowed that leagues “must induce free persons to cross state lines and must arrange and pay for their doing so” — meaning that teams must engage in “interstate” transport to play games. The court reasoned that reality was “not enough to change the character of the business” because the “transport is a mere incident, not the essential thing.”

Fifty years later, in Flood v. Kuhn, the high court upheld Federal Baseball by a 5-to-3 margin, even as it acknowledged that the exemption granted to baseball was “anomalous.” The majority opinion, written by Justice Harry Blackmun, a noted baseball fan, includes his list of the 66 best players of all time as well as a potted history of the national pastime. 

One of the lawyers challenging professional baseball, David Lender, tells the Sun, “When the New York Mets fly to play the Los Angeles Dodgers, I think it’s interstate commerce.” His co-counsel, Gregory Silbert, adds that “we could debate where the limits” of constraints on the sport should be drawn, but that “right now there are no limits.” Mr. Silbert explains that the status quo allows baseball to “fix the market.” Major League Baseball did not respond to requests for comment. 

The ValleyCats and Sea Unicorns could be looking at a favorable judicial playing field. In 2016, Justice Neil Gorsuch, then a rider on the 10th Circuit, called Federal Baseball a “precedential island” that has managed to “survive indefinitely even when surrounded by a sea of contrary law.” He predicted that it “would never expand but would, if anything, wash away with the tides of time.”

Another justice, Brett Kavanaugh, noted in NCAA v. Alston, the case that allowed college athletes to profit off their Name, Image, Likeness, known as NIL, that baseball’s behavior “would be flatly illegal in almost any other industry in America.” In Radovich v. National Football League, the high court refused to extend the exemption to football, calling baseball’s treatment “inconsistent” and “irrational.”

The minor league teams have thus far struck out in the Southern District of New York and before the United States Court of Appeals for the Second Circuit, both of which cited the binding force of stare decisis for their decisions. The riders explained that they “must continue to apply Supreme Court precedent unless and until it is overruled by the Supreme Court.” 

That court held in a case from 1972, United States v. Topco Assocs, that antitrust laws “in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.” Now it will be up to the courts if the barons of baseball — the game’s gentry — will, like King John of old, be brought to heel.  

This article has been corrected from the bulldog to indicate that President Harrison signed the Sherman Antitrust Act.