He applied the “Page 99 Test” to his new book, The Baseball Trust: A History of Baseball's Antitrust Exemption, and reported the following:
The Baseball Trust is about one of the oddest features of our legal system, the near-complete exemption of baseball from antitrust law. Every other sport, like virtually every other sort of business, is governed by the antitrust laws. Why not baseball?Learn more about The Baseball Trust at the Oxford University Press website.
The answer lies in a chain of court opinions beginning with Federal Baseball Club of Baltimore v. National League (1922), in which the Supreme Court held that baseball was not a form of interstate commerce. The decision was uncontroversial at the time, because “interstate commerce” was a term of art with a much narrower meaning than it has today. Soon after, however, the prevailing professional understanding of interstate commerce expanded dramatically. And that raised the question whether, given the new legal climate, the Federal Baseball Club case should be overruled.
The first court to confront this question was the U.S. Court of Appeals for the Second Circuit, in New York, in a 1948 case called Gardella v. Chandler. On page 99 of The Baseball Trust, Judge Jerome Frank, one of the most well known judges of the era, responds to the opinion of his colleague Harrie Chase, who argued that a lower court has no authority to overrule a Supreme Court opinion:Judge Jerome Frank took the opposite view. “There is nothing new about a lower court announcing that a Supreme Court decision is dead,” he observed. He mentioned some examples, including a celebrated case from just a few years before, in which a district judge correctly predicted that the Supreme Court would overrule one of its own prior cases and decide that the First Amendment bars a school district from requiring children to salute the flag and say the Pledge of Allegiance. Frank concluded that there was no reason to wait for the Supreme Court to say that baseball was interstate commerce, when the Court of Appeals could say so for itself. He also concluded, however, that there was no need to predict that Federal Baseball Club would be overruled. The Court of Appeals could also find Federal Baseball Club inapplicable to Gardella’s case, on the ground that even if baseball was not interstate commerce in 1922, it had become so by 1948. Back in 1922, Frank noted, there had been no broadcasting of baseball games, but in 1948 the games were broadcast on interstate radio networks, and were just beginning to be shown on interstate television networks as well. That was enough, in Frank’s view, to bring baseball within the definition of interstate commerce. The weakness in this argument, as Frank acknowledged, was that accounts of baseball games had been transmitted by interstate telegraph in 1922. The only difference between the two cases was the presence or absence of a wire. To draw a distinction on that ground, Chase responded, “seems just silly.”
The Page 99 Test: Who Owns the Sky?.