Legislative Dam: A Q&A about the Curt Flood Act of 1998

Members of Congress have a lot going on. Between health care legislation, cap and trade bills, idiots trying to sneak bombs onto airplanes, and running for re-election, their plates are as full as the bellies of medieval kings. Yet somehow they repeatedly make room for baseball.

We all remember the Congressional hearing of 2005 that infamously featured McGwire, Palmeiro, Sosa, and Schilling. But there have been many other moments as well, and today I want to talk about a lesser known act of Congress, the Curt Flood Act of 1998.

The act contains language that directly affects minor leaguers' abilities to challenge baseball's labor structure. I reference it in the upcoming Baseball America feature on the history of minor league salaries (scheduled for the season preview issue), so I thought it would be good to learn more about it. For this reason, I turned to an expert.

Ed Edmonds, the Associate Dean for Library and Information Technology at Notre Dame Law School, might know more about the Curt Flood Act than any person in America (including the authors of it). He's literally written volumes about it, and is an expert on all things legal in the baseball world. He contributes regularly to Sports Law Blog and was kind enough to respond to a few of my questions:

Why was Curt Flood such a significant figure? Why does this legislation don his name?

Curt Flood is a significant and symbolic figure in the labor struggles in baseball because he took a stance after his trade from St. Louis to Philadelphia in October 1969 that he would not accept the trade. He brought a lawsuit with the financial support of the Major League Baseball Players Association (MLBPA) at a time when the union was just beginning to gain some strength against the owners. Flood lost his case at the Southern District of New York, the Second Circuit Court of Appeals, and the United States Supreme Court.

So, despite losing his lawsuit, some see Curt Flood as a major figure in the creation of free agency. The arbitration decision that created free agency involved Andy Messersmith and Dave McNally. When Curt Flood made his stand in 1969 and into the early 1970s, active players did not come to his support by testifying at his trial or openly supporting him to the press. They were not empowered in 1969 to force changes in the game. By 1975, when the McNally-Messersmith decision was rendered, the balance of powers between owners and theMLBPA had changed dramatically. Flood made a personal sacrifice of his career to advance the cause. There is a good deal of complexity and nuance to this story, and the many books and articles that have been published in the last few years concentrating on Curt Flood explored much of that. Flood is honored for his “early” efforts during a period of great transition. Because of the success of 1975 in creating free agency and because baseball did not collapse as so many predicted, I think that Curt Flood is seen as a symbolic figure in advancing the cause of players’ rights. When I wrote about this in an article published in the Marquette Law Review and later in a legislative history of the Curt Flood Act of 1998, I argued that the naming of the act for Flood was a “hollow” victory. His case was not tried as an antitrust case, although it was largely brought as such. He lost his case although many commentators consider the Supreme Court decision to be an incorrect one. In his dissenting opinion, Justice Thurgood Marshall argued that the case had labor implications that could override antitrust ones, and he certainly predicted the future in this area correctly. So, the Curt Flood Act stands for the proposition that major league players, and only major league players, have the right to use antitrust law in the same way as other professional athletes. However, because labor law policy wins out, and that policy largely produced the result that Flood sought for himself, I think that naming the act for him was symbolically nice but ultimately not that legally significant.

What were the main effects of this legislation? Did it prompt any real change?

After the 1994-1995 lookout was resolved, both MLB and the MLBPA agreed to go to Congress to jointly request legislation to change theantitrust exemption with respect to labor relations. The move was largely symbolic because as long as a labor relationship exists between the union and management labor policy trumps antitrust policy as determined by the Supreme Court in Brown v. Pro Football, Inc., 518 U.S. 231 (1996). There is a really narrow possibility that if a union decertified and the National Labor Relations Board agreed that the process was appropriate, that the antitrust leverage would reappear. This technique has been used effectively in the past by the NFLPA.

So, I do not think it has really changed baseball. What it has done from my perspective is actually entrench the business as it existed in 1998. The passage of the act has made it more difficult for minor league players or the champions of the rights of minor league players to change the labor conditions in that area.

The legislation seems to be very narrow in scope and to apply only to MLB players. In fact, it contains a specific clause to exclude minor leaguers. What exactly did this clause state?

The Curt Flood Act can be found at 15 U.S.C. § 27a (2006). Subsection (b) provides a limitation to subsection (a) that specifically states that only the employment of major league baseball players playing at the major league level is covered by the legislation. The specific language involving minor leaguers is as follows:

“No court shall rely on the enactment of this section as a basis for changing the application of the antitrust laws to any conduct, acts, practices, or agreements other than those set forth in subsection (a). This section does not create, permit or imply a cause of action by which to challenge under the antitrust laws . . . (1) any conduct, acts, practices, or agreements of persons engaging in, conducting or participating in the business of organized professional baseball relating to or affecting employment to play baseball at the minor league level, any organized professional baseball amateur or first-year player draft, or any reserve clause as applied to minor league players.”

Just to be clear, the law included a second subsection, (b)(2) that stated that the Professional Baseball Agreement between Organized Baseball and the National Association of Professional Baseball Leagues cannot be the cause of any action or “any other matter relating to organized professional baseball’s minor leagues.” The question of whether or not independent minor league baseball is covered would need to concentrate on the word “organized.” The legislative history, in my opinion, supports the argument that the independent minor leaguers are also not accorded any right to bring a cause of action under the statute.

Subsections 3-6 also make it clear that franchise relocation is not altered by the act; the act does not change the antitrust exemption created by the Sports Broadcasting Act of 1961; umpires cannot use the Curt Flood Act to their advantage; nor can anyone else use the act to attack the basic structure of Major League Baseball.

You've written about entities within minor league baseball lobbying Congress during the passage of this act. Can you talk about the effects of these efforts?

Minor League Baseball was quite concerned about the possibility of any changes to the basic “farm system” relationship of minor league teams to major league teams. In particular, major league teams cover the salaries of minor league players, and this is a critical feature to the existing business model of minor league teams. When the legislation was first considered in Congress, Minor League Baseball made sure that it approached the many Congressmen and Senators with minor league franchises within their Congressional districts or states to make sure that any possibility of a lawsuit by a minor league player could not happen by changing the status of major league players. Most courts that have considered baseball’s historic antitrust exemption have held that it covers the entire business of baseball. The legislation basically left a slight bit of ambiguity by stating that baseball players are “subject to the antitrust laws to the same extent such conduct . . . would be subject to the antitrust laws if engaged in by persons in any other professional sports business affecting interstate commerce.”

Link to the act in its entirety:

http://roadsidephotos.sabr.org/baseball/curtflood.htm