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Major League Baseball’s longtime exemption from federal antitrust laws protects it from state antitrust laws, too, a panel of the 11th U.S. Circuit Court of Appeals ruled late Tuesday. But it was clear from the decision by Judge Gerald B. Tjoflat, who reportedly flirted with playing pro ball in the 1940s, that the panel would have ruled differently if it were not bound by a controversial series of U.S. Supreme Court rulings that upheld baseball’s immunity from antitrust laws. The death of baseball’s exemption “would likely be met with considerable fanfare, save for the club owners who benefit from the rule,” Tjoflat wrote. “The exemption was founded upon a dubious premise, and it has been upheld in subsequent cases because of an equally dubious premise,” added Tjoflat, who was joined by 11th Circuit Judge Susan H. Black and Judge Richard W. Goldberg, who was visiting from the U.S. Court of International Trade. But Tjoflat concluded that only Congress or the Supreme Court — and not an intermediate appeals court — could put an end to the exemption. The principal roadblock was the high court’s 1972 decision in Flood v. Kuhn, 407 U.S. 258, which rejected former St. Louis Cardinals outfielder Curt Flood’s claims that antitrust laws should have allowed him to become a free agent if he refused a trade to the Philadelphia Phillies. The justices found that baseball’s exemption from federal antitrust law was an “established aberration,” but ruled 5-3 that precedent required them to keep the immunity in place. The 11th Circuit case stemmed from considerations in 2001 by baseball owners to reduce the number of Major League teams from 30 to 28. Teams having financial trouble, such as the Tampa Bay Devil Rays, Florida Marlins, Montreal Expos and Minnesota Twins, were considered possible targets. The owners ultimately agreed to postpone contraction decisions until 2006, but by that time, Florida Attorney General Robert Butterworth, concerned about holding onto the state’s Devil Rays and Marlins, had launched an investigation into baseball’s possible violation of state antitrust laws. EXEMPT FROM ANTITRUST LAW Baseball sued Butterworth in federal court, where a judge last year ruled that the sport was exempt from federal or state antitrust laws. Butterworth filed an appeal to the 11th Circuit, which was continued when Charlie Crist won election to the attorney general’s post last year. In his decision, Tjoflat, 73, did not take note of his experience with the baseball system in the 1940s. But a 2001 story in his hometown newspaper, the Florida Times-Union in Jacksonville, reported that in 1948, Tjoflat attended the University of Virginia on a partial baseball scholarship. The story quoted Tjoflat, a pitcher, as saying, “I worked out one summer with the Cincinnati Reds at the old Crosley Field. … The Reds made me an offer, but you had to break up your schooling in those days. I opted not to do that.” Tjoflat attended Duke University law school, where he graduated in 1957. He was appointed to the federal appeals court in 1975 by President Gerald R. Ford. Tjoflat could not be reached to confirm the Times-Union story. Tjoflat approached his decision in the baseball case reluctantly, like a pitcher who thinks he can strike out a feared batter, but is ordered by his manager to issue an intentional walk. “Any discussion of whether Congress meant to immunize the business of baseball from all antitrust law (as opposed to federal antitrust law) is, of course, fanciful because Congress never conveyed its preference one way or another,” he wrote. “The exemption is entirely judge-made, although some decisions have attempted to cloak this disturbing fact in the language of Congressional intent.” Tjoflat went on to call critical parts of the Flood decision, written by the late Justice Harry Blackmun, “hardly a model of clarity” and “puzzling.” But in the end, Tjoflat wrote that a good-faith reading of Supreme Court precedent required the panel to find that league contraction decisions fell within baseball’s federal antitrust exemption and that the immunity extended to state antitrust laws. Since baseball could not violate state antitrust laws, he concluded, the Florida attorney general’s investigation “is baseless” and therefore violated the Fourth Amendment’s guarantee against unreasonable searches. Major League Baseball v. Crist, No. 02-10333 (11th Cir., May 27, 2003). A spokeswoman for Crist said the attorney general was still reviewing the 25-page decision, so he could not comment on the ruling. ‘DEFEAT FOR CONSUMERS’ Stephen F. Ross, a University of Illinois sports and antitrust law professor who urged the court in an amicus brief to rule for Crist, said the decision was “an unfortunate defeat for consumers.” Ross said he’d hoped the court would allow the investigation to continue as a way to establish a factual record that could be used eventually in an attempt to challenge the Flood decision at the Supreme Court. Ross called the panel’s distaste for the Flood ruling “a silver lining,” because it might encourage someone else to take on baseball’s antitrust exemption. Mary K. Braza, a Foley & Lardner partner who represented baseball and its commissioner, Bud Selig, said it is not uncommon for circuit judges to cast doubts on the rationale behind the baseball exemption. But she added that the Supreme Court routinely has announced that it will not change its stance without a move from Congress, which has, despite numerous hearings on the matter, refused to end the exemption. TJOFLAT STATEMENTS REFUTED While obviously pleased with the result of the decision, Braza took issue with two of Tjoflat’s statements — one a question of fact, the other a comment about the possible effect if baseball’s antitrust exemption died. Tjoflat wrote that the Florida Marlins and the Tampa Bay Devil Rays were the only two teams that had voted against contracting the league in 2001. But Braza said Tjoflat is mistaken — only the Minnesota Twins and the Montreal Expos voted against contraction. Braza also called “not accurate” Tjoflat’s contention that only baseball club owners would be upset if the baseball antitrust exemption died. She noted that minor league baseball depends on the exemption, because Major League teams pay the players’ salaries only because they know the players are bound to play for their teams, thereby assuring the teams their investments in the players will pay off. Stanley Brand, the vice president of minor league baseball’s operating organization, agreed with Braza, calling Tjoflat’s comment “one of those unfortunate statements.” He said if the antitrust exemption evaporated, minor league teams in small cities such as Rome, Ga. and Kinston, N.C., could not survive; “39 million minor league fans would be upset.”

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