Can Baseball Get By Without a Commissioner?

The problems that Judge Landis helped clean up no longer exist for baseball (via Bain News Service).

The problems that Judge Landis helped clean up no longer exist for baseball (via Bain News Service).

As Bud Selig prepares to retire from his long tenure as commissioner of baseball—in deed since 1992 and in name since 1998—it bears asking: Why does baseball still have a commissioner? More importantly, does baseball still need one?

The answer to the first question is simple enough. For the past 93 years, baseball always has had a commissioner, and for a sport as hidebound as baseball, that is as good a reason as any. Judge Kenesaw Mountain Landis was given near-absolute authority, and with the instincts of a showman and the iron will of a dictator, he exercised it, telling baseball’s owners that he had come “to save you from yourselves.”

Many would argue that he did just that. On the eve of Selig’s retirement, and 70 years after the retirement of Landis, it may be time to close the book on the office of the commissioner.

In its long history, Major League Baseball has had just nine commissioners:

  • 1921-1944: Kenesaw Mountain Landis
  • 1945-1951: Happy Chandler
  • 1951-1965: Ford Frick
  • 1965-1968: William Eckert
  • 1969-1984: Bowie Kuhn
  • 1984-1988: Peter Ueberroth
  • 1988-1989: Bart Giamatti
  • 1989-1992: Fay Vincent
  • 1992*-2014: Bud Selig

* From 1992 to 1997, Selig did not hold the official title of commissioner, serving as the interim commissioner until his actual responsibilities were formalized in 1998. For all intents and purposes, he was the commissioner of baseball for the entire period.

According to the popular history of baseball, baseball’s owners turned to Judge Landis as a response to the 1919 Black Sox scandal, asking him to rid the game of gamblers by any means necessary. But that isn’t the whole story. Gambling was a proximate cause for the creation of the office of the commissioner, but it was not the true cause. The true cause was baseball’s desire to preserve its monopoly.

Eight current baseball franchises began their operations in the 19th century: the Cubs, Braves, Cardinals, Pirates, Reds, Giants, Phillies, and Dodgers. They outlived literally dozens of other contemporary teams, and by the turn of the century, they constituted the eight-team National League, the only major league in the country.

Team owners had complete control of their players, holding absolute rights to their services through the reserve clause, and suppressing salaries through a salary cap. Nor was the atmosphere entirely wholesome for fans. Future commissioner Ford Frick noted in his autobiography that back in the 19th century, baseball stadiums featured pervasive gambling and a “corner saloon atmosphere.”

But there were a great many other teams in the country, and there was nothing stopping them from competing for National League talent. There was a minor league called the Western League (it was really Midwestern), led by an imperious former sportswriter named Ban Johnson.

Johnson saw the moral laxity of the National League as a marketing opportunity and the salary cap as an economic opportunity. So, in 1901, he changed the Western League’s name to the American League, declared it another major league, and unleashed his league’s owners on the NL’s star players, many of whom were poached by the AL’s owners. The two leagues both played the same sport by the same rules, but they were at war.

Eventually, the National League sued for peace. As business journalist John Helyar writes: “At a ‘peace meeting’ in 1903, the two leagues agreed on an end to raiding, a common reserve system, and a single ruling National Commission. It would consist of the president of each league, plus a third member to be agreed upon by them.”

(That didn’t quite end the bickering, as the New York Giants’ legendarily pugnacious player-manager John McGraw refused to play a team from Johnson’s league for the 1904 World Series, the first and last time that a World Series would be canceled until the 1994 player strike. Nonetheless, his team played in and won the 1905 Series, and an uneasy peace prevailed for the first decade of the union.)

Baseball faced its second major crisis in 1913, with the formation of a third major league: the Federal League. Once again, star players began to jump to the new league, where they were capable of getting paid much more.

Major league owners sought injunctions to prevent their players from leaving their teams for more money, claiming that such action was forbidden by the reserve clause, and several judges returned players to their original teams. In 1915, the Federal League brought an antitrust suit against organized baseball.

They chose Judge Kenesaw Mountain Landis to hear their case, because at that time he was a famous trust-buster, having fined Standard Oil $29 million in 1907. The fine was quickly overturned, but his scruples were well established, if not his opinion on monopolies.

On the contrary, Landis had no problem with organized baseball functioning as a monopoly. As he heard the case, he left no doubt which way his heart leaned: “A blow at this thing called baseball,” he told the attorneys, “will be regarded by this court as a blow at a national institution.”

And then Landis did nothing. While he delayed issuing a decision, Federal League owners uneasily worried about their legal status. At the end of the 1915 season, Federal League owners settled with the two major leagues, folding the league. Baseball had found its savior, though they would not hire him for several more years.

Baseball’s final crisis came toward the end of the decade, as owners in both leagues began to rebel against the hard-drinking Johnson, and his two ineffectual partners on the National Commission could do little to hold the leagues together. The third member of the commission resigned in 1920 when his fellow owners refused to reappoint him, and owners across baseball were rethinking the commission. The owners were divided into fierce pro-Johnson and anti-Johnson camps, and so the American League president sought a candidate who would allow him to consolidate his power.

Johnson hit upon the idea of appointing a judge as commissioner and unleashing that judge on the allegations of gambling in the 1919 World Series. But he wanted a judge whom he could control, not Landis. As his biographer David Pietrusza writes, “Timing was everything, and almost equally important was the creation of a deft excuse for probing the Black Sox scandal. Johnson had been sitting on knowledge of the Series fix for months.”

However, Johnson was foiled. In the end, his endorsement doomed his preferred candidate, and the anti-Johnson owners chose Landis to be a one-man commission: the commissioner of baseball.

Just as with his court cases, Landis was not quite consistent in dispensing justice. While he rode roughshod on the Black Sox, his justice was displayed more delicately in other cases. Pietrusza argues that the entire key to cleaning up the game was the banning of the eighth man out, Buck Weaver (played by John Cusack in the movie), the third baseman who heard about the fix, refused to take the bribe, but also refused to rat on his friends. That was the high crime that earned him his ban. As Pietrusza writes:

Before 1920 if one player approached another player to throw a contest, there was a very good chance he would not be informed upon. Now, there was an excellent chance he would be turned in. No honest player wanted to meet the same fate as Buck Weaver. The Weaver decision had a great chilling effect on dishonest play—and talk of dishonest play…
And once prospectively crooked players knew that honest players would no longer shield them, the scandals stopped.

After establishing that gambling absolutely would not be tolerated, Landis had the luxury of being lenient on gamblers. In 1926, future Hall of Famers Ty Cobb and Tris Speaker were accused of having conspired to fix a game in the 1919 season. After hearing their testimony, Landis magnanimously cleared them.

Pietrusza explains Landis’s generosity by quoting another historian, David Voigt, who argues that “in the early years of his commissionership Landis had to expel players in virtual wholesale fashion to restore public confidence in the game. By 1927, the Black Sox scandal was receding into historical status. The fans no longer feared crookedness in the game.”

What is more, in 1922, the United States Supreme Court rendered judgment in Federal Baseball, exempting organized baseball from antitrust laws. No longer would baseball ever have to fear a new major league stealing its business or its players. That antitrust exemption is still on the books today: baseball is a legally sanctioned private monopoly, the only one of its kind in America. The owners’ chief desire was fulfilled.

By the late 1920s, the game was largely free of both gambling and of Johnson, whose power had continued to falter. With his own absolute power assured, Landis continued in his role until dying in office in 1944. The next 50 years in the commissioner’s office were mostly a muddle.

In his book on the role of the commissioner, In the Best Interests of Baseball?, economist Andrew Zimbalist disposes of the seven commissioners between Landis and Selig in two chapters called “The Undistinguished Middle.” (I owe his book a large debt of gratitude for summarizing the following history, and recommend it highly as a primer on the commissioner’s office.) Some were more passive and some were more active, but as a group, these commissioners did little, and what they did was rarely much good.

There was, however, one important exception: Landis’s immediate successor, Happy Chandler, assented and did not push back when Branch Rickey announced plans to break the color line by bringing up Jackie Robinson. Chandler did little to encourage integration before Rickey acted, and later he attempted to puff up his own role in the affair. But he was on the right side of history, and it was perhaps the greatest moment by a baseball commissioner between Landis’s death and Selig’s tenure.

Many things happened in baseball in those years, of course, but by and large, the commissioner was less a leader than a follower. He had to please all of baseball’s owners, a nearly impossible task, and without their support, he was more a figurehead than a chief executive. Ford Frick and William Eckert established the pattern by accomplishing very little in the first two decades following Landis, decades in which the rest of the country was growing by leaps and bounds in the post-war boom.

Frick was a journalist who worked in PR for Major League Baseball, then rose to become NL president and later commissioner; he behaved with all the deference toward owners that you might expect from a PR man. Eckert was a general in the Air Force who was little known outside of baseball, knew little about baseball himself, and garnered little respect within the game. They quickly replaced him.

Kuhn established the designated hitter rule, but he also is remembered for his ineffectual bluster at the birth of the modern players union under Marvin Miller, a titan of baseball who bested Kuhn, successfully brought an end to the reserve clause, and brought about the advent of free agency, leading to massive increases in player salaries. Like Johnson and Landis, Kuhn could be imperious, capricious, and erratic. Unlike them, he did not leave any great lasting legacy of his own.

Kuhn’s successor was Ueberroth, who is best remembered for his role in leading the owners in secret, illegal collusion to depress player salaries. Players filed numerous grievances, and the league was forced to pay $280 million in damages to players. His successor, Giamatti, died in office while dealing with the sordid Pete Rose affair, and Giamatti’s deputy and successor, Vincent, was a lame duck almost from the start. He resigned in 1992 after three years of nonstop bickering with owners.

That left the position open for the fifth time in seven years. Baseball needed stability. And the owners wouldn’t feel comfortable with anyone but one of their own.

Selig was the best-connected, best-liked, and most ambitious owner in baseball, serving on numerous executive committees and mentioned as a leading commissioner candidate for at least a decade. He was chosen in 1992 because the owners would listen to him, but his appointment finally ended the thin fiction that the commissioner represented the interests of fans rather than of owners.

In his two decades on the job, Selig is easily the most accomplished commissioner since Judge Landis. He finally ended the administrative separation of the National and American Leagues that had existed for a century, mostly to baseball’s detriment. He expanded the league to create four new teams, inaugurated regular-season interleague play, directed the creation of the World Baseball Classic, and oversaw regular-season games in Tokyo, Monterrey, San Juan, and soon in Sydney. Selig oversaw the building of the best digital media company in professional sports, MLB Advanced Media, which has earned hundreds of millions of dollars for owners and been a great boon for fans who root for teams far from where they live.

Perhaps most importantly, following the crippling 1994 strike, Selig oversaw two decades of labor peace with the players union, successfully negotiating Collective Bargaining Agreements without a work stoppage for the first time in baseball’s history. More than anything, he succeeded where his predecessors failed because he had a rare gift for politicking among the bumptious owners, who often hated each other but trusted him.

The single most challenging job his successor will face will be to get the owners to agree on anything. Selig is loathed by many fans, but even that is the sign of a job well done. He has deflected fans’ ire away from the other owners and toward himself. Don’t think that the owners aren’t grateful.

That said, there are three legitimate reasons fans loathe him, and all three have roots in the 1994 strike and the cancellation of the World Series, which turned many fans away from the game. The lost 1994 pennant race indirectly led to Selig’s other two greatest failings.

First, there is the tragedy of the Montreal Expos. The Expos were an expansion team in 1969, baseball’s first team outside the United States. They were not a particularly successful team for most of their tenure, but they were a consistently entertaining team in the 1980s, with larger-than-life stars like Bill “Spaceman” Lee, Andre Dawson, and Gary Carter.

By the early 1990s, the Expos looked like a juggernaut waiting to happen. They had never made the playoffs finished in first place, but in 1994 they surged into first place in July and remained there for a month—until the strike ended the season and Selig canceled the playoffs.

The strike drove away fans and hurt teams all over baseball, and especially the Expos, who otherwise might have hoped for the increased revenues associated with a playoff team. Over the coming years, their cash-strapped management opted not to hang onto the stars of the 1994 team—including Larry Walker, Moises Alou, Marquis Grissom, and Pedro Martinez—the team never made the playoffs, and the Expos left Montreal in 2005, the first time that a baseball city had been left without a team since Selig’s own Milwaukee Braves decamped for Atlanta 40 years earlier.

(Milwaukee was not the first city to be deserted by major league baseball. Baltimore and Washington were each jilted for decades during the 20th century. There was always a major league team in one of the two cities, but rarely one in both. Before the Expos moved to Washington, D.C., the District had been without baseball since 1972, when the Senators moved to Texas to become the Rangers during Kuhn’s tenure.

For those four decades, the closest team was the Orioles, which had come to Baltimore in 1954 and overlapped with the Senators for 17 years. Prior to that, Baltimore had been deserted for 50 years, from 1903 to 1953. That was because the Orioles—probably the best team of the 1890s—moved to New York in 1903, eventually becoming the Yankees.)

Second, Selig bears some blame for the steroid era, which was instrumental in fueling the home run races that often were credited with bringing fans back to the game in the late ’90s but led to cartoonish numbers that seem comical in retrospect, to say nothing of the pressure on high school and college players to take steroids if they wanted a chance to play in the majors.

During the period, Selig was attempting to build a fruitful working relationship with the players union, which was greatly resistant to drug testing. Understandably, union leadership saw drug testing as an intrusion on player privacy and a major concession within any labor negotiation. In order to accept testing, they wanted a major concession in return. For years, owners were reluctant to grant players any significant concessions in return for drug testing, and Selig appeared unwilling to twist any arms to institute a testing regimen.

During that impasse, the Steroid Era blossomed, coming to an end only after Congressional hearings forced baseball’s hand. At best, Selig was inert. At worst, he and his fellow owners may have tacitly encouraged the offensive boom, enjoying the profits it brought them.

Finally, one of the biggest reasons that Selig’s fellow owners have gotten so wealthy is that many of them have gotten public-funded stadiums for which they needed to pay very little, and they received them because Selig threatened their cities by saying their teams either would be moved to another city or removed by contraction. After the 1994 strike, and especially after the Expos moved in 2005, no one doubted that he would do it, and city after city buckled, often taking on ruinous debt in order to prevent their favorite teams from bolting.

These are not the actions of a commissioner charged with serving the fans. They are the actions of a business executive charged with increasing revenues. By that standard, Selig has been very successful for his sport. But he did nothing for the game’s integrity, which was the original pretext for the office of commissioner.

The commissioner’s office was established with a dual purpose, both purposes designed to shore up organized baseball’s position as a monopoly within its sport. First, to put the owners in line and end the ruinous bickering between leagues that had plagued organized baseball since the establishment of the American League. And second, to restore fans’ perception of baseball’s moral integrity by expelling gamblers from the game. Both of these constituted existential threats to the major leagues. The first clearly required him to act in the best interests of owners, and the second was a shared interest among both owners and fans.

But the office of the commissioner has changed a great deal since Landis’ days, as has the league itself. Unlike the early days, the major leagues have no serious external threats. Even without the antitrust exemption, the cost of starting a new major league within one of the other established professional sports is prohibitively high and generally doomed to fail, as the XFL can readily attest. Similarly, the prominence of gamblers and racketeers has greatly declined across the country over the decades, so Landis’ original boogeyman is dead and buried.

The only possible existential threat to baseball would be if the sport were so mismanaged that it lost its entire audience or financially imploded from within. This is a fairly common state of affairs across all American professional leagues, where the commissioner is generally recognized as less of a moral arbiter and more of a marketing manager.

In this new context, Selig has been the most effective baseball executive since Landis. But while Landis’  mandate was to prevent the game from completely succumbing to gamblers—which is what has happened to boxing in the past half-century—Selig’s greatest accomplishments have involved putting the game on a firmer economic footing, with two decades of labor peace and rapidly growing revenues.

Baseball does not need a National Commission, or a one-man commissioner. Since the time of Landis, no one man has been able to bend the league to his will. On matters from integration to steroids, baseball’s commissioner has proven unable to save baseball from itself, instead having to wait for political pressure from outside. As a result, the name commissioner is outdated. What baseball needs now is a CEO, not a judge.

References & Resources

  • Ford Frick, “Games, Asterisks, and People: Memoirs of a Lucky Fan” (New York: Crown Publishers, 1973)
  • John Helyar, “Lords of the Realm: The Real History of Baseball” (New York: Villard Books, 1994)
  • Daniel R. Levitt, “The Battle That Forged Modern Baseball: The Federal League Challenge and Its Legacy” (Lanham, Maryland: Ivan R. Dee, 2012)
  • David Pietrusza, “Judge and Jury: The Life and Times of Judge Kenesaw Mountain Landis” (South Bend: Diamond Communications, 1998)
  • Andrew Zimbalist, “In the Best Interests of Baseball? Bud Selig’s Revolutionary Reign” (Hoboken: John Wiley and Sons, 2006)
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Comments

  1. Shane Tourtellotte said...

    One correction, Alex. You write: “By the early 1990s, the Expos … had never made the playoffs.” But they had. In the strike season of 1981, they took a second-half division title, and parlayed it into a run that got them within one game of the World Series.

    The strike giveth, and the strike taketh away.

  2. Carl said...

    You seem kind of hard on Peter Ueberroth. To the positive, he:

    1) Averted the umpires strike
    2) limited the 1985 players strike to 1 day, much less than his Bowie Kuhn.
    3) signed the first national billion dollar tv contract
    4) had attendance increase every year he was Commissioner.
    5) To my mind, the best thing he did was suspend and fine as a % of salaries the ballplayers who were involved with cocaine. Hitting ballplayers in the pocketbook would have been a better way to deter later PED users.

    • Alex Remington said...

      Ueberroth did a lot to increase revenues, and was the first really marketing-minded executive. But collusion really overshadows everything.

      I don’t know how you’d hit players in the pocketbook without steroid testing, which was the obvious sticking point all along.

  3. Paul G. said...

    Some historical corrections/clarifications:

    - The Western League was renamed the American League for the 1900 season. However, it was still a minor league and signatory to the National Agreement. It wasn’t until 1901 that it declared itself a major league.

    - The Federal League formed in 1913 and was an “outlaw” league from the start, but it did not declare itself a major league and become a crisis until 1914.

    - While there is certainly some shared players (John McGraw being #1) between the 1890s NL Baltimore Orioles and the 1900s AL Baltimore Orioles, they are generally not considered to be the same franchise.

    As to the matter at hand, presumably there should be someone in charge, even if only nominally. A direct democracy of owners sounds like a disaster waiting to happen. Whether the title of this person is CEO or President or Commissioner or whatever does not really matter. Yes, I appreciate that the Commissioner job has changed purposes, for the worse in my opinion, but sometimes a title is just a title.

    • Alex Remington said...

      Thanks, Paul! You’re absolutely right about Baltimore, as far as the franchise was concerned — but as far as the city was concerned, there was baseball in the city straight up until there wasn’t. The best team of the 1890′s was the one that merged with Brooklyn to become the Superbas; then a new franchise was born that moved to a different part of New York to become the Highlanders, then the Yankees. Either way, the city was jilted.

      Appreciate your clarifications on when the Federal League and American League declared themselves to be major.

      As to the matter at hand, I actually think that titles do matter. “Commissioner” has a very different sound than “CEO.” A CEO is presumed by everyone, from employees to consumers, to have the explicit mandate to grow the business and increase profits. A commissioner is supposed to be above the fray, a dispassionate and benevolent arbiter whose role is to preserve trust in the game.

      Selig is effectively a CEO who holds the title of “Commissioner,” and I don’t think it is to the game’s advantage to preserve that thin fiction.

  4. Marc Schneider said...

    Alex,

    I was initially going to argue that the Commissioner is really the CEO, so why remove the position? But,then you made the point in your last comment that the Commissioner is really the CEO and his title should reflect that, I agree. The Commissioner in all sports has always been hired by the owners to protect their interests. It’s never been about advocating for fans and players except in very limited circumstances, just as the CEO of a business is intended to advance the interests of the shareholders and customers and employees are less relevant except to the extent that they need to be placated for business reasons. Landis saved the owners from themselves but he was hardly there to protect the players, although he did occassionally make decisions that benefitted particular players.

    I’m not really sure why you single out Selig though. It’s true of all the sports. Sure, Roger Goodell may make some decisions that impact negatively on an individual owner, but his mandate is really to protect the economic interests of the owners. Even the emphasis on “player safety” is really aimed at protecting the NFL from lawsuits and bad PR that would impact on the economic health of the league.

    There is very little Selig has done that the other Commissioner have not at least tried. Your point about extorting public funds for new stadiums is true, but it’s also true of the other sports. The Colts left Baltimore for Cleveland, the Browns moved to Baltimore, etc, all having essentially extorted new stadiums. And, in fact, if the cities are stupid enough to give in to the extortion, why wouldn’t a business person do this? Right now, the producers of “House of Cards” are threatening to move production out of Maryland if they do not receive what they consider the appropriate tax breaks.

    My point is not that Selig is a great commissioner but that the vitriol he receives seems out of proportion to the evil he has perpetuated, especially given that the NFL commissioner seems immune to such attacks.

    By all means, change his title to CEO and do that with the commissioners in all the sports. But I find the hatred of Selig a bit puzzling.

    As for baseball being a “legally sanctioned monopoly” you need to remember that monopoly is not, under the American antitrust laws, per se illegal. And baseball is not the only sport that has received exemptions, albeit more limited, from the antitrust laws. In the fifties, Congress passed a law allowing the NFL to negotiate a single TV deal for all the teams, thus equalizing the revenues between big-market teams like the Giants and small markets like the Packers. Then there was legislation permitting the AFL-NFL merger, a merger that was quite clearly aimed at limiting player salaries. In fact, the NFL is effectively a monopoly. Other non-sports industries, such as insurance and banking, also have exemptions from anti-trust although that is typically because they are ostensibly otherwise regulated. The original reason for baseball’s antitrust exemption was stupid even at the time and makes no sense, but it is hardly the reason for all of baseball’s ills.

    • Alex Remington said...

      Mark, all good points. I singled out Selig for two reasons. First, Selig is retiring, and so this is tied to that news event. Second, the historical role of the baseball commissioner is basically the pattern that was followed in the other sports: Roger Goodell and David Stern and Adam Silver and all the others who have been called “commissioner” in the other sports took a title that was invented by Major League Baseball. I would argue that none of them should be called commissioner, but if it weren’t for baseball’s example, none of them would have been.

      I agree with you that Selig comes in for too much vitriol, and argued as much in the piece. I also argued that it’s partly strategic on his behalf: fans revile him for things that they should more properly revile owners for, which helps keep his friends happy and his position secure.

      That said, the NFL pointedly does not have an antitrust exemption as such. As I understand it, the Supreme Court examined the issue in the 1950′s and determined that the NFL did not deserve one, and even declared the 1922 baseball exemption to be stupid — but they did not strike it down, and so it remains the law of the land.

      The point is not that monopolies are illegal as such, but that Major League Baseball is utterly exempted from any inquiry as to whether their monopoly status harms consumers. In the case of Montreal and other cities that have been deprived of baseball, the monopoly has clearly harmed consumers. (Of course, with the exception of places like Northern Vermont, Montreal baseball fans are generally not American citizens, so the Court properly doesn’t care about harm to them quite as much. But Milwaukeeans and Washingtonians are American cities, and they were left utterly without baseball.) Of course, the antitrust exemption is not the reason for baseball’s ills — I argue that it’s basically irrelevant because of the barriers to entry. But it is still a sign of the ways in which judges have abandoned their senses when it comes to protecting baseball’s monopoly, going all the way back to Landis himself.

    • Yehoshua Friedman said...

      Alex, great article and excellent followup to the comments.
      Marc, you meant the Colts to Indianapolis. But great comments.
      The comparison of pro sports to public utilities is apt. Even communications are not necessarily limited to location anymore because of satellites and internet. Power companies might be similar, but with the development of solar electric power as long as you have the sun you have an alternative. With baseball going international, the aspect of markets and market size may go down since most of the consumers of baseball are electronic. You can be a Red Sox fan in Berlin or an Orioles fan in Sydney. That will ultimately decrease the leverage of MLB over the fans. I don’t desperately need to have an MLB or NFL franchise within 100 miles of where I live. I am more comfortable watching a game electronically and raiding my own fridge between innings or timeouts. The cost of going to a game is pretty astronomic at this point. But the great equalizer is here. Let them move a team to the city that is sucker enough to build a newer, even more state of the art stadium, if they can find one. Maybe next time they won’t.

  5. Marc Schneider said...

    Alex,

    I generally agree with your points. Frankly, I think Selig has been singled out, in part, because of how he looks. He just sort of looks sleazy and, of course, he was basically a car salesman. He is certainly less smooth than the other commissioners, who seemingly are able to present a picture of being a neutral arbiter, which they certainly are not. They are all fronts for the owners, to whom they obviously owe their jobs. But I think Selig gets much too much blame for the steroid issue. Sure, the owners benefitted from the offensive explosion and MLB obviously turned a blind eye to PED use. But the MLBPA had no interest in restricting PED use and, given the power of the union, it’s hard to see what the Commissioner could have done even if he had wanted to rein in PEDs. Given the effect of PEDs on players’ health, it’s the MLBPA that should have been more concerned about this right along and I think Don Fehr deserves a large amount of blame for not being on top of this. (As much respect as I have for Marvin Miller, I think he was dead wrong on this issue-which seemed to be more ideological than anything else-and I suspect his influence had a lot to do with the union’s stance on PED use.)

    The antitrust exemption is stupid and based on a view of the Commerce Clause that was outdated at the time of the original court decisions. It certainly should have been struck down in Flood v. Kuhn. However, the issue works both ways in terms of protecting consumers. For example, when the NFL attempted to prevent Al Davis from moving from Oakland to LA, the courts stopped it on antitrust grounds. In this case, an antitrust exemption would have arguably helped consumers in Oakland, although harmed them, I guess, in LA. In terms of Washington-Montreal is more complicated, aside from not being American-removing the antitrust exemption would probably not have made any difference unless you were going to argue that the league owners made an agreement to allow, first Clark Griffith and then Bob Short from moving the teams. With the antitrust exemption, the owners were required to approve the two moves; without the antitrust exemption, the owners presumably would have been able to move without any approval. (Although I believe the courts have given leagues some leeway to control moves as long as there are specified parameters.)

    The real problem, IMO, is that sports are effectively natural monopolies, more like utilities or cable systems that competitive businessess. Not many cities could or would support more than one team (in the same way that you generally do not have overlapping cable systems in one city although the advent of satellite and telephone companies have increased competition for TV and broadband services). The teams do not compete for fans; even in cities that have two teams, it’s hard to see a Yankee fan going to a Mets game just because the Mets’ tickets are cheaper. And, obviously, the price of tickets in Atlanta is not going to have much effect on the price of tickets in Los Angeles. The one area in whic there is really economic competition between the teams is on the supply side, ie, bidding for players. It’s far from a free market, obviously, because of the restrictions on movement that have been collectively bargained. But collective bargaining trumps antitrust anyway and it’s not clear to me that the players would actually prefer a truly free market.

    IMO, if you think that MLB’s monopoly has deleterious effects on consumers, the solution should be more in the line of government regulation, as with utilities. The fact is, even without an antitrust exemption, the NFL is just as much an effective monopoly as is MLB and are able to screw consumers quite as effectively as does MLB. Look at personal seat licenses and requiring season ticket holders to purchase “pre-season” games.

    I do not disagree with you that Congress perhaps should be taking a look at all the sports leagues in terms of how they treat consumers. Sports fans put up with stuff that they would never countenance in other areas of their lives, perhaps because they so desperately need sports as an outlet.

    I apologize for going on so long in what is a digression. It was a great article and I enjoy your writing.

    • Alex Remington said...

      Marc, I generally agree with you as well, but when it comes to cities that have the ability to support more than one team, look at the outliers:

      First of all, of course, Los Angeles ought to have a football team. It is pointedly ridiculous that it does not. Nonetheless, in the other three major sports (counting its suburb of Anaheim), it has two basketball teams, two baseball teams, and two hockey teams.

      Meanwhile, counting its suburbs on Long Island and in New Jersey, New York has two baseball teams, two basketball teams, two football teams, and three hockey teams. It could easily sustain another baseball team. After all, London supports six Premier League teams and several dozen other association football teams.

      If not for the monopoly owners’ interest in keeping up the value of their clubs, there would be some rather obvious places to expand.

  6. Marc Schneider said...

    Alex,

    All you have really shown is that there is one arguably underserved baseball area and one arguably underserved football area. There probably are other places baseball could expand, but this has nothing to do with the antitrust exemption because the laws do not require leagues to expand. No doubt that the owners want to maintain their monopoly power but that’s true in the other sports as well. If it wasn’t for the AFL, ABA, and WHL, I doubt NY would have as many teams as it does.

    (As an aside, I once read an article by David Halberstam, written years ago about after the NFL had expanded that the owners were simply expanding out of greed and that the increased number of teams was diluting the quality of play to the detriment of consumers. He suggested that 16 was the “proper” number of NFL teams. Of course, I think that was an asinine comment, showing that even very smart people can say dumb things.)

    • Alex Remington said...

      Laws do not require leagues to expand. But if a businessman wishes to open a new professional baseball team, and Major League Baseball prohibits that businessman from doing so — because the value of MLB clubs is held high by restricting the overall number of teams — then the league has engaged in clearly anticompetitive behavior. The antitrust exemption is what protects MLB from ever being charged with, or punished for, having engaged in illegal anticompetitive practices. After all, engaging in anticompetitive practices was a large part of baseball’s business model for much of the 20th century, from snuffing out the Federal League to the collusion scandal of the 1980s.

  7. Marc Schneider said...

    You are correct that the antitrust exemption effectively immunizes MLB from challenges to potentially illegal behavior. Last July, the city of San Jose sued MLB to overturn the antitrust exemption on the grounds that MLB was blocking the move of the A’s to San Jose. The gist of the suit was that the protection of “territorial rights” was illegally broad. This came up before when Peter Angelos considered suing to keep the Expos from moving into his “territory” in Washington. My guess is that a court might well consider the geographically broad market restriction to be unreasonable. I don’t know where the case is now but I would certainly like to see the city win, although given how long-standing the exemption is and that it has been upheld by the Supreme Court, it would presumably require the Supreme Court overruling the previous decision. On the other hand, Oakland would probably not be as happy. But I agree with you that MLB should not be able to create these broad fiefdoms simply to bolster the owners’ monopolies.

    But not all restraints of trade are illegal. The antitrust laws only prohibit “unreasonable” restraints. There are very few restraints that are not subject to what is called the “rule of reason,” which means, in effect, that the restraint has no valid, countervailing (or pro-competitive) business justification. I assume that a court would not find it unreasonable for a league to restrict who owns a team and where it plays. Otherwise, I assume there would be far more NFL teams than there are now; certainly, places like Birmingham, Memphis, and LA would presumably want a team. So if I want to start a pro football team in Chattanooga, I doubt I could successfully challenge the NFL’s refusal to allow me to do so. However, I might be able challenge the NFL refusing to allow a team to move to Chattanooga because it’s too close to the Falcons’ market.

    So, in essence, I think you are generally correct about the effect of the antitrust exemption, but eliminating the exemption would not necessarily affect all of MLB’s behavior.

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