By Tom Cushing
Take me out to the ballgame – in San JoseUploaded: Jun 21, 2013
I worship in Annie Savoy's Church of Baseball attend services regularly in Oakland, sit in a designated pew, sing lustily in the seventh inning choir and take it as an article of my faith that Mike Scioscia is Satan. Baseball season defines my year more than holidays, temperatures or turning leaves. And I don't mind, at all, that we can often leave the house at 6:30 and be in-place to help our heroes repulse-the-foe, before first pitch.
I love that 90-feet is the perfect distance to a base, making double-plays, steals and squeeze bunts possible, but chance-y. I love The Game's hoary traditions, and that applied statistical genius can turn tradition on its ear. I admire the unique context of individual duels and team effort; the inherent uncertainty that means you can buy your team into regular play-off appearances, but not the championship; and that this is not a war of real estate or a game delimited by time; and that it's played by ordinary-sized athletes with extraordinary reflexes. I have an acolyte's joy that the game is an onion a pleasure at any layer, but ever more fascinating as you bore toward its core. I don't ever expect to reach it.
All that said, the one thing I despise about The Game is its lingering antitrust exemption. Unlike every other pro sports league and most of American commerce, the "business of baseball" gets an intentional walk for behavior that gets other business-folk thrown out of the game. I've been both an employee and business owner -- in neither case would I want my compensation determined via collusion, or my competitive prospects dimmed by monopolists. The Sherman Act's "charter of American economic freedom" ought to extend to participants in our National Pastime.
As a matter of history, the exemption did not start out as an antitrust free pass, per se, although it arose out of a roaring '20s lawsuit from a rival league that charged collusion among MLB owners. Justice Holmes, a devoted social Darwinist and no friend of antitrust generally, concluded for the Supreme Court that baseball games were not 'interstate' in nature, and that playing them did not constitute commerce. Thus no federal law reached the league's business practices, including the laws governing competition.
The Court has revisited that precedent twice in both cases based on challenges from frustrated players to its "reserve clause". The reserve clause bound a player to his team for life or until traded by the club kind of like if Chevron had the right to say that you couldn't leave its employ and ply your skills for any other (oil?) company, unless they got another worker they wanted, in return.
In both cases (the second brought by Oakland native Curt Flood), the Court acknowledged that baseball is interstate commerce (even before Adam Dunn's mammoth home run, hit in Cincinnati, came to rest in Kentucky). However, the Court continued its tradition of bad umpiring, this time concluding that Congress, by its inaction over the intervening decades, must have intended to exempt baseball from antitrust scrutiny. Obviously, that was back-in-the-day, when Congress was actually expected to do stuff.
So the exemption remains in-force but why should we care how a Billionaire Boys Club of team owners, supervising a few hundred millionaire players, chooses to conduct its business? It matters because there are real impacts, on fans, as well as players and those owners, too. An example is being played-out here in the Bay Area, one of five metropolitan markets that supports two teams.
An implication of the antitrust exemption involves the league's practice of allocating territories to its teams. Thus, the Baltimore Orioles were able to keep Washington DC from having a team from the 1970s until 2005, when the former Montreal Expos became the Nationals. And they extracted what trust-busters, economists and assorted other nerds describe as 'monopoly rents' when they finally relented the Nats must pay a very high percentage of their broadcast revenues to the Orioles, thus affecting the team's ability to attract/afford excellent players.
And in our fair little corner of the baseball nation, MLB has allocated its territories so that the Giants get SF and Santa Clara counties (presumably San Mateo, too), while the A's get Alameda and Contra Costa. Do you hear that, local Gigantes fans? You are Not supposed to root for your chosen team (although why anybody would be so inclined is a mystery to your humble scribe). Thus, the Giants have been able to block the A's from moving to the South Bay, which they "own."
But wait there's more: no other multi-team area is denominated by county the likes of the Mets and Yanks, Cubs and Sox, and Dodgers and Hated Angels are expected to duke-it-out for fans' affections, unprotected. And as a final irony, the A's actually gave the then-orchards of the South Bay to the Giants as a matter of good civics. Former A's owner Walter Haas did not want the G's to move to Florida, and the plan at that time was to build a new stadium in Silicon Valley, as the 49ers have done. The G-Men have been notably reluctant to return that favor they would evidently prefer the A's go elsewhere, like Las Vegas, for instance.
Why is the way to San Jose so enticing? Follow the money. The great majority of large, Bay Area-based companies are in the South Bay, with all the team revenues thus implied. Indeed, I would argue that if northern California had no teams, the First team to move here would go to San Jose. Oakland, for all its natural gifts, has stagnated as a commercial center; that fact is unlikely to change over a planning horizon of the next several decades.
That brings us to this week's lawsuit, in which the City of San Jose has sued MLB, claiming antitrust and other tortious breaches of conduct. The City obviously doesn't care about the exemption as jurisprudence, but claims that it keeps the municipality from benefitting from an A's move there. They are represented by the same firm that Al Davis used to successfully sue the NFL on not-unrelated grounds.
How will the new suit fare? Here's my take: the antitrust exemption is relevant only in the extra innings of appeal, as very few trial judges would presume to overturn it at their level. The other claims have some procedural and substantive problems, but I believe the case will never reach trial. IFF the suit can survive an early-inning motion to dismiss it in its entirety (I give that a 60% likelihood, a number pulled from the learned nether regions), then we enter the so-called 'discovery' phase, which MLB will dread. It would open untold reams of documents to disclosure, and the owners and other executives to deposition testimony on a wide range of potentially embarrassing topics.
If that threatens to happen, I think Baseball will suddenly find a way to allow the A's to move, thus ending the lawsuit and preserving the ever-emptier, though still hallowed exemption. Such an outcome would preserve the exemption on paper, but render it practically moot as it should be.
As a fan, I would love to see what our Billy would do with a $120 million payroll, vs. the current $63M the A's choose to spend. By contrast, I would hate to travel farther and pay (much) more for tickets to watch the seasons unfold in-person. But at least the market would work like it's supposed-to, and all you San Ramon Valley Giants fan could breathe easier, too.
Synopsis: Beisbol bin berry, berry good -- and it would be even better if it played by the commercial rules that apply to EVerybody else.