AmLaw Daily is talking about that MLB-Topps baseball card deal from last week and raises the notion that Upper Deck could file an antitrust suit. Countering that is the assertion in the article that “In 1922, the U.S. Supreme Court established a common-law exemption for Major League Baseball in cases involving antitrust laws, a decision most recently affirmed in 1972.”
Well, sorta. Given the rather fluky basis of the exemption itself, the scope of baseball’s exemption is rather murky. Yes, the Flood court said in 1972 that it’s up to Congress to fix the original 1922 ruling, but many courts have hacked into it over the years and there really is no clear consensus as to how broad it is. I’ve long argued that a well-conceived challenge to the exemption could pass muster with the courts, mostly because, the Supreme Court’s comments in the Flood case notwithstanding, there is nothing stopping it from changing its mind and overturning the Federal Baseball Club of Baltimore case. I don’t know if baseball cards can form the basis of a well-conceived challenge, but I’m guessing that Upper Deck is going to seriously consider the issue.
As a childhood baseball card dude I’d rather like, on sentimental grounds, to see order and brand scarcity injected back into the card market if at all possible. Indeed, I blame Upper Deck for kind of ruining much of what I liked about cards back in the day. But I’d much rather see baseball’s antitrust exemption disappear than a small part of my childhood restored, so I’m rooting for Upper Deck in this one.