The U.S. Supreme Court only agrees to review between 1% and 2% of petitions, but advocacy by prominent figures can sometimes increase the odds.
Enter the attorneys general of 17 states and the District of Columbia, the chief law enforcement officers of their respective jurisdictions.
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On Monday they filed an amicus brief urging the Supreme Court to review a case involving two minor league baseball teams, the Tri-City ValleyCats and Norwich Sea Unicorns, that lost their MLB affiliations during the MiLB reorganization a few years ago. Through their attorneys at Weil, Gotshal & Manges, the ValleyCats and Sea Unicorns petitioned the Supreme Court last month.
As detailed in Sportico, the case centers on whether MLB and its teams unlawfully conspired under federal antitrust law. MLB won at the district court and federal appellate levels, with judges explaining MLB is exempt from antitrust scrutiny per the Supreme Court’s 1922 decision in Federal Baseball Club v. National League—a decision the Court upheld 50 years later in Curt Flood v. Bowie Kuhn on grounds that under the principle of stare decisis, which is Latin for “to stand by things decided,” courts must follow Supreme Court precedent.
The Curt Flood Act of 1998 narrowed the exemption by stating it no longer applies to MLB players’ employment, but the exemption remains in effect for MiLB, MLB franchise relocation and other topics.
Led by Connecticut Attorney General William Tong, the attorneys general of Arizona, Colorado, the District of Columbia, Indiana, Kansas, Louisiana, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, New York, Pennsylvania, Tennessee, Vermont, Virginia and West Virginia along with Tong criticize MLB for implementing a “contraction” that “struck at the economic wellbeing of teams and communities in 23 states across the country.”
They complain that states are “preempted from exercising their historic police powers and enforcing their own antitrust laws” because of a judge-made federal exemption created 101 years ago.
No doubt mindful that the current Supreme Court tends to emphasize states’ rights and bemoan federal overreach, the brief pitches the case as one about “protecting” states’ rights to regulate their economies and to protect their citizens and businesses “against federal incursion.”
As the attorneys general tell it, the baseball exemption constitutes an “infringement on our sovereignty” and “unconstitutional intrusion into state prerogatives,” since enforcement of state antitrust laws is long protected in American jurisprudence.
The brief also underscores that the exemption isn’t a reflection of Congress, with elected members, passing a law but instead a ruling by unelected judges. One counter-argument is that Congress and its elected members did review the exemption in the late 1990s and, via the Curt Flood Act, implicitly supported some aspects of it.
The attorneys general further insist that preemption is ill-suited in the antitrust context since Congress has long advocated “federal cooperation with state [antitrust] enforcers.” From that lens, the exemption runs counter to conventional interpretations of antitrust law.
To date, eight amicus briefs have been filed, with MLBPA, several U.S. senators, and antitrust and sports law professors among the authors. Expect additional ones in the weeks ahead. They will need to convince at least four judges, the minimum needed to grant cert, to support a review.