America’s Pastime of a Time Past: Baseball has lost its special place in the American courts, but why? (Part 2 of 2)

I. Introduction
 
The introductory section of Flood v. Kuhn entitled
"The Game" earned Justice Blackmun a smirk retort from Justice Douglas
in a dissenting opinion.[1]  Even Justice White who joined in the
judgment of the Court noted his disapproval of the rant.[2] Even still,
based on the legal doctrine of stare decisis (let the decision stand)
the Court allowed a poorly-reasoned precedent stand to protect the
once-beloved baseball from antitrust regulation.[3]  But the courts
have now redacted the special treatment previously given to baseball
partially because its profit-oriented nature has become apparent.

II. Analysis

Sports journalists and commentators point to the Adonis-like
attitudes of athletes, inflated salaries and endorsements, and general
misconduct as reasons for decreased fan interest.  Some sight that the
games have lost their purity in this age of free agency, where players
bounce around, mercenaries for hire to whichever team pays the most. 
These are all examples of the larger public relations problem that
baseball faces, the overdue realization that baseball is a business. 
The players understand that owners are out to make money, and so many
players have opted for free agency, leaving behind a team that drafted
them and a fan base, instead to pursue financial gain. 

The public has finally realized that it is a business as well.  That baseball was not big business (and in part stare decisis) is what saved it from antitrust regulation in the trilogy of Federal Baseball, Toolson, and Flood.[4] 
Antitrust regulation, in those cases the Sherman act, was only
applicable to businesses participating in interstate commerce. 
Initially, baseball was seen as a national sport yet related to
business local to each state and city with which the team was
associated.[5]  Relying on the principle of stare decisis and
exphasising the special treatment baseball had been granted, Justice
Blackmun was able to justify the favorable ruling for his beloved
baseball in Flood.[6]  But Justice Douglas noted in his
dissent, “baseball today is big business that is packaged with beer,
with broadcasting, and with other industries.”[7]   Further, Justice
Douglas was helpful in pointing out that baseball team owners have
“records many say reveal a proclivity for predatory practices.”[8] 
This realization, that owners have a tendency to do whatever it takes
to increase profit also helped the American sports fan understand the
nature of organized professional sports.  The courts, being composed of
Americans, have reflected this realization.   

Furthermore, it is counterproductive for baseball to restrict
the use of player names and statistics in fantasy leagues.  The court
in Gionfriddo v. MLB found that the use of player names with
statistics would likely enhance baseball players’ marketability; [9] an
increase in baseball’s popularity would follow.  Similarly, restricting
fantasy league participation would hurt baseball’s popularity and thus,
the bottom line: profits.  MLB may believe that the revenues from
licensing to fantasy leagues will outweigh any potential positive
effect on revenues generally from the increased fan involvement that
fantasy sports play engenders.  Such a belief is risky, and unsound. 
However, MLB intends to appeal the CBC decision.  With the way
copyright law sits today, it is unlikely that MLB’s appeal will succeed.

[1] Flood v. Kuhn, 407 U.S. 258, 287 (1972).

[2] Id. at 285. 

[3] Id.

[4] Id. at 282-85.

[5] Id. at 269.

[6] Id. at 285.

[7] Id. at 287.

[8] Id

[9] Gionfriddo v. MLB, 94 Cal.App. 4th 400, 415 (2001).

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