New Law Review Article: The Curiously Confounding Curt Flood Act

As most sports law enthusiasts are well aware, although Major League Baseball has traditionally benefited from a judicially created antitrust exemption, it does not enjoy blanket antitrust immunity across all of its operations. Most notably, in 1998 Congress passed the Curt Flood Act, a law partially repealing baseball's exemption in order to allow major league players to file antitrust lawsuits against MLB.

Throughout Congress's deliberation of the Flood Act, legislators made it abundantly clear that the legislation was intended to remain neutral regarding the continued viability and scope of the rest of baseball's antitrust exemption. Nevertheless, a number of courts and academic commentators have read the law quite differently, concluding that it either explicitly or implicitly reflects Congressional acquiescence in the exemption. This was the position recently adopted by both the district and appellate courts in the City of San Jose v. Office of the Commissioner of Baseball litigation, for instance, the lawsuit challenging MLB's refusal to approve the relocation of the Oakland A's to San Jose. The implication of these analyses is that baseball's antitrust exemption has now effectively been codified by Congress, meaning that the courts no longer have the power to repeal the exemption, should they be so inclined.

I challenge this interpretation of the Flood Act in a new law review article, "The Curiously Confounding Curt Flood Act," forthcoming next year in the Tulane Law Review. In particular, my article advances a novel textualist interpretation of the Flood Act, contending that when properly read, the law neither expressly nor implicitly approves of the bulk of baseball's antitrust exemption. As a result, I conclude that the judiciary retains the power to reconsider baseball’s antitrust status, should a future court wish to do so.

The piece can be downloaded here. I'd greatly appreciate any comments or feedback.