Professional Baseball and Interstate Commerce: In this recent post, I concluded in one sentence that baseball is interstate commerce, and thus can be regulated by Congress.

It also seems that the legislation would pass constitutional muster: professional baseball is certainly within the realm on interstate commerce. It may not have been in 1922 (see the Supreme Court reference in the Times article), but it certainly is now.

The 1922 case I refer to is Federal Club v. National League, a case in which Justice Holmes wrote:

The business is giving exhibitions of base ball, 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. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade of commerce in the commonly accepted use of those words.

This is the quote relied on by Michael Cernovich at Crime & Federalism, when he concludes that baseball does not fall under the federal commerce power. So, I decided to do some more research. Was I wrong in my first post?



I don't think so. Justice Holmes may have been correct when he wrote Federal Club (who am I to question Justice Holmes?), but the analysis of the interstate commerce clause has changed substantially since 1922. In United States v. Lopez, the current Supreme Court laid out three broad categories of activities that fall under federal commerce power:

(1) the channels of interstate commerce

(2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities

(3) those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce)

One could make a persuasive argument that baseball falls into the second category, but many people would disagree. There seems, however, to be no argument about the third category. Professional baseball certainly has a "substantial relation" and "substantially affects" interstate commerce. Professional sports are a billion-dollar industry in this country. Teams from one state travel into another to play; images from those games are beamed to every state in the union, where local advertising is sold on the broadcast. Likewise, merchandise from professional sports is also sold in every state and marketers conduct national campaigns tying in professional baseball and their product. This is the essence of interstate commerce.



Finally, I rely on a quote from another Supreme Court case pertaining specifically to baseball. In Flood v. Kuhn (the case that paved the way for free agency in baseball), the majority wrote:

"Professional baseball is a business and it is engaged in interstate commerce."

92 S.Ct. 2099, 2112 (1972). If it was true in 1972, I have to imagine it is true today.

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