SIDEBAR Summer 2019 - 23

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Pepper considered among the Court's most incandescent
constitutional intellects.
Representing the appellee, Pepper argued last. Pepper
conceded that professional baseball was played in multiple states
and that it involved travel across state lines; however, the displays
of physical skills, that is, pitching, hitting, base running and
fielding, could not reasonably be considered commerce. Pepper's
syllogism was air-tight: since playing baseball could not be
commerce, it could not be considered interstate commerce, and,
not being interstate commerce, it was immune from the penalties
of the Sherman Act.
Major League Baseball was continuing to stagger from the
unseemly publicity generated by the Black Sox scandal which
involved eight Chicago White Sox conspiring with the New
York underworld to fix the 1919 World Series, throwing the
Series to the Cincinnati Reds. Major League Baseball sustained a
paralyzing blow to its integrity and came to stare dismemberment
and collapse in the face.
The Federal League returned to its litigation with hopes,
this time, of delivering a coup de grace to Major League Baseball
under the Sherman Act.
In 1919 the Federal League instituted a second action
under the Sherman Act in the Supreme Court of the District of
Columbia. Federal sought damages and a declaratory judgment
that Major League Baseball constituted a conspiracy, that is, a
monopoly in restraint of trade.
Retained for a second time by Major League Baseball, Pepper
mounted an aggressive defense during the 17-day trial; however,
the jury returned a verdict in favor of Federal together with an
award of $80,000 which, when trebled, amounted to a quarter
million dollars. Appealing to the D.C. Court of Appeals, Pepper
secured a reversal of the lower court, all of which set up Federal's
petition for a writ of certiorari to the United States Supreme
Court.
While the appeal was pending, Pepper undertook the
gargantuan task of bringing some semblance of order to the
mish-mash of rules, regulations, contracts, and provisions
under which Major League Baseball had been operating over
the previous forty years. Under Pepper's clever direction and
guidance every professional contract was rewritten and ratified
by both the owners and the players. When Judge Landis was
named Commissioner of Baseball in 1920 he inherited Pepper's
crystal-clear organizational blueprint from which Pepper had
scoured ambiguities, confusions, and shenanigans. Ironically,
as Commissioner, Landis imposed lifetime bans on the eight
Chicago players, including "Shoeless Joe" Jackson whom the
legendary Ty Cobb considered to be the best hitter he had ever
seen.
The United States Supreme Court scheduled argument for
April 19, 1922.
Counsel for Federal, rather than argue the merits of his case,
engaged in a series of long-winded, ad hominem harangues
against the owners of Major League Baseball. Pepper addressed
his argument to Justice Holmes and Justice Brandeis whom

Pepper's argument was persuasive and brief, its persuasiveness
in direct proportion to its brevity as far as Justice Holmes was
concerned. Writing for a unanimous Court, Holmes wrote:
The business is giving exhibitions of baseball, which are purely
state affairs. It is true that in order to attain for these exhibitions
the great popularity that they have achieved, competitions must
be arranged between clubs from different cities and states.....
The transport is a mere incident, not the essential thing. That to
which it is incident, the exhibition.....would not be called trade
or commerce in the commonly accepted use of those words......As
it is put (by Mr. Pepper) personal effort not related to production,
is not a subject of commerce."
Pepper won the case. The Court's decision was unanimous.
After the Court's decision, Major League Baseball remained
free from judicial interference until 1970 when Curt Flood, the
St. Louis Cardinals' splendid centerfielder, instituted an antitrust law suit against Major League Baseball and Commissioner
Bowie Kuhn. Flood was not successful; however, he enjoyed the
satisfaction of knowing that Justice Harry Blackmun, writing for
the Court, conceded that other than baseball, no professional
sport was exempt from the provisions of the Sherman Act.
Blackmun admitted that baseball's exemption was an aberration;
however, it was an established aberration which warranted the
protection of stare decisis as enunciated in Holmes' opinion in
1922. In other words, if Major League Baseball were to lose its
exemption, it was a job for the United States Congress, not the
federal judiciary.
There is a quaintness, an innocence almost, in Holmes'
opinion that recognized Baseball's unique place as an endeavor
entitled to respectful, even iconic, reverence. It was ironic that
such an opinion was written by Holmes who personally was a
cranky nihilist who considered reverences of any kind fatuous
humbugs.
The case of Federal Baseball v National League et al was
issued just in time for the golden decade of American sports, that
is, the 1920s. Those were the years of Jack Dempsey, Bill Tilden,
Paavo Nurmi, Harold Abrahams, Grantland Rice, Red Grange,
Knute Rockne, Walter Johnson and, of course, George Herman
Ruth whose towering abilities as a hitter and pitcher propelled
baseball into the niche it would occupy for nearly one hundred
years, a niche effectively preserved, cleverly protected, and
ferociously defended by the Bar's patrician gunfighter, George
Wharton Pepper.

SUMMER 2019 23


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