The Curiously Confounding Curt Flood Act

42 Pages Posted: 27 Sep 2015 Last revised: 6 Oct 2015

See all articles by Nathaniel Grow

Nathaniel Grow

Indiana University - Kelley School of Business - Department of Business Law

Date Written: September 25, 2015

Abstract

This article provides a novel textualist interpretation of the Curt Flood Act of 1998, a relatively little known statutory provision that partially repealed professional baseball’s controversial, judicially created antitrust exemption in only a single limited respect. Aside from allowing major league baseball players to file antitrust lawsuits against Major League Baseball, the Flood Act was intended — as Congress went to great lengths to emphasize throughout the legislative process — to remain neutral regarding the continued vitality and scope of baseball’s exemption in all other respects.

Despite these clear expressions of Congressional intent, however, most subsequent courts and commentators have surprisingly interpreted the CFA quite differently, concluding that the Flood Act in fact either expressly or implicitly endorsed broad antitrust immunity for professional baseball based on a single, imprecise passage in the statute. The implication of these analyses is that the judiciary now lacks the power to modify or repeal baseball’s antitrust immunity, with the exemption instead having effectively been codified by Congress.

This article contends that future courts should reject the majority interpretation of the Flood Act and instead construe the statute neutrally in most respects, as Congress intended. While other commentators have previously argued that the CFA should be read narrowly in light of its legislative history, this article advances a novel textualist interpretation of the Flood Act. In particular, it asserts that when properly read, the Flood Act neither codifies baseball’s antitrust exemption nor reflects Congressional acquiescence in most aspects of the sport’s immunity. Therefore, the article concludes that the judiciary retains the power to reconsider baseball’s antitrust status, should a future court wish to do so.

Keywords: Major League Baseball, MLB, antitrust, exemption, baseball, Curt Flood Act

Suggested Citation

Grow, Nathaniel, The Curiously Confounding Curt Flood Act (September 25, 2015). Tulane Law Review, Vol. 90, 2016, Available at SSRN: https://ssrn.com/abstract=2665848

Nathaniel Grow (Contact Author)

Indiana University - Kelley School of Business - Department of Business Law ( email )

Bloomington, IN 47405
United States

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