In April, I discussed two then-pending cases before the U.S. Supreme Court challenging Major League Baseball’s long-standing exemption from antitrust law. Since that time, the Court had had the two appeals scheduled for consideration on three occasions, only to reschedule its deliberation each time. Although it wasn’t immediately clear why the Court was repeatedly postponing its consideration of the two appeals, this rather unusual delay raised the possibility that several of the justices were potentially interested in reconsidering baseball’s controversial antitrust exemption.
Despite any possible behind-the-scenes maneuvering, the delay ultimately proved to be for naught, as the Court announced on Monday that it was declining to hear either appeal, effectively ending the two cases. This means that MLB will continue to operate largely outside the scope of federal antitrust law for the foreseeable future.
As is normally the case, the Court did not explain on Monday why it was denying the two appeals. The Court did reveal one piece of potentially relevant information this morning, however, noting that Chief Justice Roberts recused himself from any consideration of the appeal in the Wyckoff v. Office of the Commissioner of Baseball case. It’s not at all clear why Chief Justice Roberts opted not to participate in the Court’s deliberation of the case.
Typically, Supreme Court justices will recuse themselves from a case when they either have some financial interest in the matter, or else when they were somehow involved in the case during an earlier stage of the litigation (such as when a recently confirmed justice had ruled in the case while serving on a lower court). Neither scenario would appear to apply to Chief Justice Roberts, making his recusal all the more curious.
While we will likely never know why the Court repeatedly postponed its consideration of the two cases, Chief Justice Roberts’ recusal does suggest one possible explanation. Specifically, it is possible that the Court’s remaining eight justices were split four-to-four as to whether to take the Wyckoff case. While it normally only requires four votes for the Court to hear an appeal, if the justices had remained equally divided after the case had been fully argued, then the tied vote would have resulted in the affirmation of the lower court’s decision.
In other words, even if four justices were inclined to overturn MLB’s antitrust exemption, they may have ultimately opted not to take the case because the end result appeared destined for the exemption to be affirmed by a four-to-four vote. Thus, it is possible that the Court delayed its consideration of the two cases in order to give one or more justices time to (unsuccessfully) lobby their colleagues to vote to overturn the exemption.
Alternatively, and perhaps more likely, the Court was simply delaying its consideration in order to give Chief Justice Roberts time to decide whether he needed to recuse himself in the first place.
Ultimately, then, it is impossible to know precisely what was going on behind the scenes. All we know is that for the third time in as many years, the Supreme Court has declined to seize an opportunity to overturn baseball’s antitrust exemption.
Moving forward, it is difficult to imagine a scenario in which the current Court would agree to hear a case challenging the baseball exemption. While there were potential problems with some of the earlier appeals — such as the case filed by the city of San Jose, California — that may have convinced the Court not to take those cases even if a majority of its justices were otherwise inclined to reverse the exemption, the Wyckoff case challenging MLB’s scout hiring and pay practices appeared to present the Court with a rather ideal opportunity to reconsider the exemption. The fact that the Court nevertheless declined to do so today thus suggests that it likely won’t be overturning the exemption anytime soon.
Nathaniel Grow is an Associate Professor of Business Law and Ethics and the Yormark Family Director of the Sports Industry Workshop at Indiana University's Kelley School of Business. He is the author of Baseball on Trial: The Origin of Baseball's Antitrust Exemption, as well as a number of sports-related law review articles. You can follow him on Twitter @NathanielGrow.
The views expressed are solely those of the author and do not express the views or opinions of Indiana University.
Justice Samuel Alito took part in a Phillies Fantasy Camp before being elevated to the Supreme Court.
Wonder if he met Curt Schilling? They do have similar politics.