The Business of Segregation in Baseball, J Marren

Tags: Free agents, MLB, black players, Acquisitions, NFL, Supreme Court, Trade losses, case, Justice Stevens, oral argument, Justice Alito, oral arguments, Chief Justice Roberts, ANI, New York Yankees, Boston Red Sox, Chief Justice, Chicago Cubs, the Dodgers, Justice Ginsburg, St. Louis, American League, sports leagues, member clubs, Scott Kazmir, Justice Sotomayor, Negro players, Daniel M. Negro Baseball, St. Louis Cardinals, Wendell Smith, Larry MacPhail, Dan Daniel, business competitors, antitrust laws, Arthur Ashe, Joseph Elvogue, Boston Braves, Branch Rickey, St. Louis Browns, Dick Young, Larry Doby, New York Giants, Sam Lacy, African American, Jim Crowism, Justice Thomas, Josh Friedman, Billy Beane, Doug Melvin, minor players, Craig Breslow, Trade Beane, free agent, Free Melvin, Rookies Holliday, GM, Dan O'Dowd, Matt Holliday, Matt Letting Raul Ibanez, Sotomayor, Sonia Sotomayor, Anthony Kennedy, Tony Reagins, Justice Kennedy, Ted Kennedy, Justice Kennedy doctrines, Justice Holmes, Justices Breyer, Justice Clarence Thomas, Justice Breyer, Stephen Breyer, Justice Scalia, Samuel Alito, antitrust law, Jackie Robinson
Content: March 7, 2010
A publication of the Society for American Baseball Research Business of Baseball Committee Winter 2010
Will The Supremes Revolutionize "Sports Arbitration Wrap-up ­ 2010
Law" And Sing The Praises Of Either
NFL or MLB, or Both? In American
By Bill Gilbert and Tim Darley
Needle, Inc. V. NFL et al. U.S. Supreme Court Docket No. 08-0661, argued Jan. 13, 2010
During the 2010 baseball offseason, a total of 235 players were distinctly affected by the arbitration process, which has been a means for determining
By Lawrence W. Boes1
player salaries since 1974. Currently, this process is available to two classifications of players. The first
being players with 3 to 6 years of major league service
On January 13, the U.S. Supreme Court heard oral ("MLS"), plus the top 17%, based on service time, of argument on a legal issue significant to the NFL, players with at least two years of MLS (provided the MLB and other sports leagues and allied interests in player has accrued a minimum of 86 days of MLS). interpreting and applying the antitrust laws, specifi- These players are all still under "team control," in that cally, whether Section 1 of the Sherman Act of 1890,2 their rights are reserved by their current club. A total applies to collective business activities of professional of 164 team controlled players were eligible for arbisports leagues and their member clubs in limiting or tration during 2010.
prohibiting intra-league competition.
Arbitration is also available to players who are eligi-
The NFL is seeking to obtain the Supreme Court's ble for free agency. When a player accrues the necesblessing of its centralized and exclusive licensing pol- sary 6 years of MLS, he may file for free agency. icy for the NFL member clubs' logos for use on sports Upon filing, his former club may offer to proceed with apparel. This policy is based on the legal hypothesis the player into the arbitration process. Typically, this that the NFL and its clubs are acting as a "single en- offer is only extended to pending free agents who tity," not subject to Sherman Act § 1, which basically qualify their prior team for draft pick compensation. applies to concerted business actions among business Draft pick compensation is available if the departing competitors. The precise legal issue is whether a player qualifies as a Type A player (the top 20% of
(Continued on page 3)
(Continued on page 14)
1 Copyright, Lawrence W. Boes, 2010. Attorney and Counselorat-Law, admitted in NYS-1965, also, U.S. district courts,
INSIDE THIS ISSUE
SDNY, EDNY, U.S. Courts of Appeal for 2d, 3d, 8th & 9th Circuits and U.S. Supreme Court; J.D, Columbia Law School,
American Needle v. the NFL
1
1964; Reviews Ed., Columbia Law Review, 1963-64; Law
Clerk, 2d Cir., 1964-65; Empire State Counsel, 2006-07. Re-
Arbitration Wrap-up ­ 2010
1
tired Partner, Fulbright & Jaworski, L.L.P., previously Reavis
& McGrath, NYC, 1965-2000, Associate, 1965-71; ABA,
NYSBA, NCBA. Law Office of Lawrence W. Boes, 256 As-
The Business of Segregation in
2
bury Ave., Westbury, N.Y. 11590-2023; Tel. No.: 516-997-
Baseball
2996; Email: [email protected]
2 15 U.S.C. § 1. This federal law forbids contracts, combinations
and conspiracies among business competitors resulting in un-
Rating the GMs--2009
2
reasonable restraint of interstate commerce, for example, re-
straining competition, restricting output, dividing territories and fixing prices.
From the Editor
30
Winter 2010
Outside the Lines
The Business of Segregation in Baseball By Joe Marren
Rating the GMs--2009 By Bill Felber
INTRODUCTION
Measuring the performance of a General Manager is a
lot tougher than measuring the performance of a
Segregation was good for business. At least that may player. That's true in large part because while the
be what the so-called "lords of baseball" believed. Ra- yardsticks for determining the best players are statisti-
cism was blatant when the majors and affiliated mi- cal in nature and generally understood, there are no
nors refused to allow African Americans to play until readily accepted parallels for GMs.
1946, when Jackie Robinson was assigned to the
Montreal Royals, then the top farm team of the Brook- The most obvious parallel -- victories ­ doesn't work
lyn Dodgers. But racism didn't go away after that wa- because GMs work with markedly different resources
tershed year, or in '47 when Robinson was promoted and restraints. For reasons that bear both on the talent
to the Dodgers. In fact, it's more subtle but it still gets base and the financial base, it's more difficult to win
ugly occasionally. As, for example, when Al Campa- with some franchises than others. The few attempts to
nis of the Los Angeles Dodgers told a national televi- develop a suitable formula don't really try.
sion audience on April 6, 1987, that there were no Af-
rican-American executives in baseball because "they A few years ago Baseball Prospectus offered what it
don't have some of the necessities to be ... a field termed a Payroll Efficiency Rating (PER) for GMs. In
manager, or, perhaps, a general manager."
essence, it assessed GMs on the basis of what they
were given to work with. The idea of getting away
And it was racism that mattered in baseball business from victories as a yardstick for measuring GM per-
decisions right from the sport's genesis up to the pre- formance has a certain egalitarian aspect, but it ig-
sent day. The 19th century alone could produce a book nores the reality that GMs of even low-rent franchises
of essays on the topic, so most of the focus here is on must show signs of actual progress in order to main-
the 20th century with 19th century context inserted tain faith and hope among their fans. It also posits that
when needed.
success can be measured in financial terms. There is
an element of truth to that, but it will hardly satisfy the
First, it must be understood that the press played a fan of a second division team to be told that his GM
crucial role in defining the issue. Was deciding what won the frugality pennant.
to report (and how) a business decision? Well, yes and
no because newspapers depend on advertising, which The GM Rating System I created in "The Book On
depends on readers. So the depth of coverage could be The Book" in 2004 tries to strike an appropriate bal-
suspect. But no reporter, editor or publisher could ig- ance in expectations of GMs. The GM Rating System
nore the overall contextual issue in the American psy- asks a question that is central to what rich-market and
che: Essentially, many in the press came to frame the poor-market general managers alike try to do: Did he
story for Civil Rights as being an All-American strug- improve the talent he was given to work with?
gle for traditional and iconic values of justice and
freedom. The mainstream press didn't originally Because not all franchises operate in the same circum-
frame it that way, though a non-traditional cast of stances, not all the definitions of "improvement" are
characters did. San Francisco State University history alike. That means the answer gets complex. In some
professor Jules Tygiel wrote, "Two groups that instances, improvement is most appropriately meas-
emerged in the late 1930s provided this impetus: a ured over the long term. In others, it is a "what have
small coterie of young black sportswriters and the you done for me lately?" question.
Communist party."
Beyond that, some teams improve based on decisions
Most African-American newspapers, then and now, that weren't even made by their general managers, but
are weeklies. Yet some had (and still have) national by the guys who preceded them. The St. Louis Cardi-
reputations. For example, the Pittsburgh Courier was nals won the NL Central in 2009 in large measure due
(Continued on page 17)
(Continued on page 23)
2
Winter 2010 American Needle (Continued from page 1)
Outside the Lines
sports league or other voluntary association of com- MLB HAS LONG BEEN THOUGHT TO ENJOY A UNIQUE peting sports clubs and affiliated business entities, AND TOTAL JUDICIAL EXEMPTION FROM THE ANTI-
such as the NFL or MLB and other sports leagues and TRUST LAWS for professional organized baseball which
their member clubs, may act as if a "single entity" to grant collective licenses of its member clubs' logos, without a full inquiry and trial of its anticompetitive effects.
was not considered within "interstate commerce" under the Sherman Act, as a result of repeated time-honored decisions in Federal Baseball Club v. National League, 259 U.S. 200 (1922) (Holmes, J., writing for a unanimous Court); Toolson v. New York Yankees, 346 U.S.
MLB and its teams are indirectly involved in this NFL case as silent bystanders, even abstaining from filing an amicus curiae ("friend of the court") brief. They probably did so because MLB had similarly defeated,
356 (1953); Flood v. Kuhn, 407 U.S. 258 (1972) (Blackmun, J., writing for a majority of seven justices). It is highly doubtful, however, whether this "exemption" (limited to professional baseball among all other sports enterprises) would be extended to exempt
on the merits, an antitrust claim brought by a former such undoubtedly nationwide commercial activities as
licensee.3 MLB had advanced factual and legal licensing logos for use on products sold in "interstate
grounds based on a different and more complicated legal test--a comprehensive "rule of reason" test, which tests and balances the anticompetitive and procompetitive purposes and effects of MLB's collective licensing, not as the NFL did by gaining a simpler antitrust rule based on the "single entity" concept.4 The final result of the MLB v. Salvino case in the 2d Circuit, from which no petition was filed for Supreme Court review, is the same as the NFL has so far accomplished in ANI v. NFL in the 7th Circuit, except
commerce," in which both MLB and NFL are engaged. See, e.g., Flood v. Kuhn, 407 U.S. at 282, in which Justice Blackmun wrote an extended paean to baseball as the "national pastime" and an apologia adhering to the Court's prior decisions, acknowledging, "With its reserve system enjoying exemption from the federal antitrust laws, baseball is, in a very distinct sense, an exception and an anomaly." In so limiting the "exemption" to the players' reserve system, other aspects of baseball as a business are impliedly in interstate commerce, and thus MLB and its teams no longer enjoy a blanket antitrust-
that the lower courts in ANI concluded the inquiry af- law exemption. See, e.g., MLB v. Salvino, note 3 above.
ter deciding the NFL was a "single entity" not subject
to further examination of the antitrust claims.
NFL clubs in licensing logos for NFL-branded caps,
Here, the defendant NFL member clubs acting collec- hats and other apparel? According to the NFL defen-
tively through their jointly owned corporate licensing dants, they claim to avoid this challenge under
agency, NFL Properties, Inc. (NFLP), granted the Sherman Act § 1 by organizing and conducting their
highest bidder, codefendant Reebok International, a business as a "single entity" and thereby shortcut ex-
sole and exclusive license for a ten-year term begin- tended pretrial procedures and a trial subjecting the
ning in 2000 to use NFL-branded logos for use NFL and its clubs to intense and comprehensive "rule
on caps and other sports apparel.
of reason" scrutiny?4
Is that collective action an unlawful contract, combi- Not only did counsel for the parties but also counsel
nation or conspiracy among otherwise competing NFL for the Office of the Solicitor General of the U.S. De-
clubs acting through NFLP to limit output and in- partment of Justice and its Antitrust Division and Fed-
crease revenues by restricting competition among
(Continued on page 4)
3 MLB v. Salvino, 542 F.3d 290 (2d Cir. 2008). MLB brought a case in New York against Salvino, a former licensee, for using MLB logos without a current license. Salvino then counterclaimed by challenging MLB's exclusive licensing policy, but the challenge was dismissed. Defending its licensing plan on appeal in the 2d Circuit, MLB did not raise the issue of the antitrust-law "blanket exemption" as applied to its commercial trademark licenses, but nevertheless won under the antitrust "rule of reason" which Circuit Judge Amalya Kearse wrote for a majority on the comprehensive "rule of reason" grounds as the basis for granting summary judgment (no trial was needed), whereas Judge Sonia Sotomayor concurred in a separate opinion on the ground that MLB's "collective licensing" is a lawful ancillary restraint of a sports league as a legitimate JOINT VENTURE. Id. at 334. 4 See MLB v. Salvino, note 3 above.
3
Winter 2010
Outside the Lines
American Needle (Continued from page 3)
and its teams' logos. This excluded ANI from compet-
ing in this business during the ten-year term of Ree-
eral Trade Commission participated in oral argument, bok's
contract. As
presenting sophisticated and nuanced recommenda- pointed out by Justices
tions for the nine Justices. The reported commentary Breyer and Ginsburg at
in the National Law Journal and New York Times arti- the oral argument, there
cles and blogs following oral argument reflects the is nothing unlawful un-
considerable controversy and interest among the Jus- der the antitrust laws
tices of the Court, but fails to note that MLB had won when a single firm or
its own case on appeal in the 2d Circuit in 2008 testing entity owns valuable
the antitrust legality of MLB's collective licensing.5 "IP" rights (under federal
patent, copyright or trademark or state-law property or
BACKGROUND
privacy-based rights) and chooses an exclusive licen-
see to market its branded products and that ANI's
ANI had been one of NFL's several licensees for damages claim occurs basically because of this exclu-
NFL-branded headwear until 2000, when the NFL de- sivity policy, beginning in 2000.7
cided on competitive bidding among prospective li-
censees for an exclusive contract granting the collec- ANI initiated this case against the NFL and its licen-
tive licensing of NFL-brand logos. see in 2004. Defendants applied for and won a dis-
Originally, beginning in the Sixties missal from the U.S. District Court in Chicago on all
the NFL had contributed its licensing claims in 2007, and this judgment was affirmed in
revenues to various charities, but 2008 by the Seventh Circuit Court of Appeals in 2008.
later divided these revenues similar Both courts granted summary judgment, based on un-
to its national broadcasting and cable disputed facts and their legal view of the facts that the
revenue-sharing, equally to all member clubs, even NFL and its member clubs operated as a "single en-
though the clubs' individual logos obviously have tity" in this collective licensing for about fifty years
greatly differing market values in helping sell NFL- and thus are not subject to ANI's claim under the
branded apparel.6
"concerted action" requirement of Sherman Act §
1.8 There was no trial, only limited pretrial discovery,
Essentially, ANI claims damages caused by the exclu- and briefs, affidavits and exhibits submitted and oral
sive licensing initiated in 2000, whereby only Reebok, argument before the District Court in Chicago and be-
as the highest bidder, may make apparel using NFL
(Continued on page 5)
5 Adam Liptak, Justices Skeptical of N.F.L.'s Court Claim, N.Y. Times, Jan. 14, 2010, at B20 (N.Y. print ed.); Tony Mauro, Justices wary of granting NFL antitrust immunity, National L.J., Jan. 13, 2010, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp? id=1202437923141. 6 At the oral argument (ANI v. NFL, U.S. Sup. Ct. Dkt. No. 08-0661, Official Transcript of Argument, Jan. 13, 2010, p. 28, available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-661.pdf), ANI's counsel conceded in response to Justice Stevens's question, "[T]here is an affidavit in the record that says that the revenues that the NFLP entity receives are distributed to the teams in equal shares . . . ." Justice Stevens further questioned, "[W]ouldn't that ­ that affidavit support the conclusion that this is basically a procompetitive agreement because it tends to make competition stronger on the playing field, and therefore, that's a sufficient defense under the rule of reason, and that's the end of the ball game?" (Emphasis added.) It is typical of Justice Stevens as a former antitrust practitioner that he discerns in the lower court records significant facts that counsel and other justices may overlook. 7 Oral Argument at 15, 27-28. 8 Chief Judge Frank Easterbrook of the 7th Circuit had written an opinion in 1996 in which he intimated that the "single entity" con- cept might apply to the jointly organized activities of sports leagues in factually appropriate circumstances. Chicago Professional Sports Limited Partnership v. National Basketball Ass'n, 95 F.3d 593, 590-600 (7th Cir. 1996) (referred to as "Bulls II" in the opinions and brief). The lower courts in their ANI v. NFL decisions relied in large part on Judge Easterbrook's reasoning. Judge Easterbrook, like his companion in the 7th Circuit, Senior Judge Richard Posner, are longtime stalwart promoters of the so-called "Chicago School" or "Law and Economics movement" in antitrust and other areas of the law. At the risk of over-simplifying their views, they generally favor limiting antitrust-law applications constraining business enterprises and other "free market" principles and would generally limit and not expand similar statutory and regulatory interference in economic matters, views that have suffered some public and professional disfavor in light of recent economic events.
4
Winter 2010
Outside the Lines
American Needle (Continued from page 4)
individual bargaining with individual clubs as "free
agents." Other professional sports leagues, including
fore the 7th Circuit panel. Those were the first and sec- Major League Soccer LLC (MLS), filed a brief joining
ond outs against ANI in the bottom of the ninth inning with similar sports leagues and organizations in pro
with the NFL ahead.
golf and tennis and NASCAR, defending their own
advocacy for and reliance on the "single entity" con-
The Supreme Court (by vote of at least four justices of cept.10 Major League Baseball carefully refrained
the Court) granted review on June 29, 2009, contrary from taking part in this case, either because its legal
to the advice the Court had earlier requested and ob- advisors fear to run the risk that their involvement and
tained from the Department of Justice's Office of the attention may again jeopardize their own exclusive
Solicitor General and Antitrust Division. ANI's peti- licenses and disturb their contrasting "rule of reason"
tion for review to the Supremes had, however, the un- victory in the 2008 MLB v. Salvino decision.11
usual support of its adversaries, winning parties in the
lower courts, NFL, its clubs and Reebok. The NFL It may be said in favor of NFL's "single entity" argu-
and its member clubs obviously expect to obtain the ment, that its clubs (in contrast to MLB's) almost fifty
Supreme Court's nationwide blessing, protecting them years ago integrated many business operations under
from repeated, risky, expensive and potentially incon- the leadership of Commissioner Pete Rozelle and the
sistent challenges of collective and exclusive licensing leading founders of the NFL in their New York, Chi-
plans for NFL-branded products. MLB's 2008 victory cago, Pittsburgh and Cleveland clubs, around the
in the federal district and appellate courts in New "single entity" concept. With the advent of exclusive
York on antitrust "rule of reason" grounds is not nec- national TV broadcasting contracts negotiated by the
essarily binding in other circuits, although a persua- NFL, all teams would share equally in these lucrative
sive precedent in other courts outside the 2d Circuit, broadcast (and cable and internet) revenues. This
and the MLB v. Salvino decision may be factually dis- helped promote balanced competition on the playing
tinguishable from similar collective business policies fields. These exclusive nationwide broadcasting con-
of the MLB and certainly as to similar policies of an- tracts were made exempt by Congress amending the
other professional sports league.
antitrust laws in 1961, and again in 1966 at the time
the rival American Football League combined with the
Labor unions in professional sports and various other NFL.12 It is based on this concept that NFL lawyers
sports and business interests filed fourteen so-called argue that they are also a "single entity" in licensing
"friend of the court" (amici curiae) briefs,9 either in league and team logo for caps, stocking hats and other
favor of ANI or NFL's legal positions. The NFLPA, apparel.13
MLBPA and other players, coaches and um-
pires' unions, fear the implications of this "single en-
tity" concept in collective bargaining and the players'
(Continued on page 6)
9 Two opposing sets of interested economists also filed briefs. One group supporting ANI includes the well-known and respected "sports economist" and author, Andrew Zimbalist. (Available at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08661_PetitionerAmCuEconomists.pdf) Supporting the NFL is a group of economists, including economics professor Richard Schmalensee of MIT. (Available at http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08661_RespondentAmCuEconomists.pdf.) 10 Unlike the NFL and MLB, Major League Soccer negotiated and signed its players' employment contracts through the league as a single entity, then assigned players to individual teams, thus avoiding inter-team competition in bidding for players and negotiating their individual contracts. Fraser v. MLS, 284 F.3d 47 (1st Cir.), cert. denied, 537 U.S. 885 (2002). 11 See note 3 above. 12 Sports Broadcasting Act of 1961, as amended also in 1966 to exempt the combination of two professional football leagues, 15 U.S.C. § 1291. Section 1294 of this 1961 law expressly provides for its limited effect to these combined acts. 13 To me, although long intrigued by the "single entity" idea for sports leagues, particularly the MLB, as a method of avoiding Sherman Act § 1, it is reminiscent of an earlier legal strategy hatched by lawyers for J.P. Morgan. He and another railroad tycoon of the era established Northern Securities, a corporate holding company to acquire the stock of the competing Burlington Northern and Northern Pacific railroads, so as to eliminate or minimize price and other aspects of competition for the Northwest railroad freight and passenger business. The T. R. administration brought an antitrust case against the companies. The Supreme Court held that the Sherman Act §§ 1 and 2 could be applied to condemn this corporate structure stratagem to control competing railroads, having both an anticompetitive purpose and effect. Newly appointed Justice Oliver Wendell Holmes, Jr., dissented joined by three
5
Winter 2010
Outside the Lines
American Needle (Continued from page 5)
set these players' salaries, even when their union re-
fused to agree.
Although the NFL embraced the opportunity for Su-
preme Court review of the lower courts' decisions, Justice John Paul Stevens was appointed in 1974 by
hopefully in its favor, the Obama Administration's So- President Ford, and is thus the senior Justice and unof-
licitor General, Elena Kagan, former Dean of the Har- ficial leader of the "liberal" four Justices. He alone
vard Law School, signed off on her Office's initial dissented in Brown v. Pro Football on both the labor
brief setting forth an argument opposing Supreme relations exemption and antitrust law grounds. He also
Court review, on the ground the lower court decisions dissented alone in supporting a challenge to a baseball
were based on the particular facts of the history of the arbitration decision brought by the L.A. Dodgers'
NFL's organization over the past five decades.
Steve Garvey as a result of MLB's disastrous
"collusion" in limiting free agents' compensation.17
THE SUPREME COURT JUSTICES
AND THEIR PRIOR DECISIONS
Justice Stevens is probably one of the most ardent of
baseball fans presently on the Court, exhibiting a
Many of the Justices have an extensive history of photo in his chambers of himself as a boy, a lifelong
opinions and public participation in antitrust-law de- Cubs fan, attending Game 3 of the World Series held
velopments, even in sports cases litigated in the fed- at Wrigley Field in 1932, in which Babe Ruth's and
eral courts.14 Justice Stephen Breyer (appointed by Lou Gehrig's home runs won the game for the Yan-
President Clinton) wrote an opinion in Brown v. Pro kees.18
Football, Inc.,15 upholding the NFL owners' decision
in the late `80s, after they had reached an impasse in Justice Clarence Thomas was appointed by President
collective bargaining with the NFLPA, unilaterally to George H. W. Bush and confirmed by a Democratic
implement "player development squads" of six rookie Senate after a controversial hearing. He wrote the
players per team. The NFL owners in their capacity as Court's unanimous decision in Texaco v. Dagher,19 a
a legally authorized employers' association decided recent antitrust law case, in which TNI's present coun-
they would pay these non-roster players $1000 per sel represented the oil company defendants. There the
week. The decision in the NFL's favor relied on the Court had approved contracts between a joint venture
"nonstatutory labor relations exemption" from the an- producing and distributing gasoline and Texaco and
titrust laws, allowing the NFL owners collectively to
(Continued on page 7)
other Justices, and was denounced by the President as having a backbone made of spineless jelly. In Northern Securities Co. v. United States, 193 U.S. 197, 400 (1904), Justice Holmes in his customary wisdom stated, "Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend." Justice Holmes later wrote the Federal Baseball Club opinion in 1922, see note 4 above, little realizing its extraordinary implications in the ensuing decades. See Justice Alito's recently published article in SABR's Baseball Research Journal, The Origins of the Baseball Antitrust Exemption: Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, 38(2) BRJ (Fall 2009) 86. 14 Most pertinent is Justice Sotomayor's concurrence in the closely related MLB v. Salvino case, outlined in notes 3 and 4 above, which is cited with approval in the Solicitor General's two briefs submitted to the Court before review was granted and afterwards on the merits of the review. Brief for U.S. as Amicus Curiae, dated May 2009, pp. 15 n. 5 & 20 n. 8, as showing that, "[S]ingleentity treatment is not the NFL[`s] only means of avoiding trial." 15 518 U.S. 231 (1996). 16 Id. at 252. 17 MLBPA v. Garvey, 532 U.S. 504, 512 (2001) (Stevens, J., dissenting). 18 Michael Kirkland, "Justice Stevens: A Legal Force at 89," published in UPI.com, Oct. 4, 2009: "Stevens not only met Babe Ruth at the [Stevens] hotel [one of a chain owned by his family], he was at Wrigley Field for Game 3 of the World Series when the Babe `called his shot' -- after getting a merciless riding from the Cubs' bench, with the count at 2 and 2, Ruth pointed to center field and smacked a 440-foot home run into the center field bleachers. Even for a Cubbie fan like Stevens, it had to be a major thrill." The article does not comment on whether Justice Stevens endorsed the apocryphal "called his shot" story on Babe Ruth's homer that day. 19 547 U.S. 1 (2006).
6
Winter 2010
Outside the Lines
American Needle (Continued from page 6)
amendments, basically favoring deregulation efforts in
the 70's, while advising Sen. Ted Kennedy as one of
Shell gasoline retailers. The joint venture had been the staff members of the Judiciary Committee. It be-
legitimately organized by Texaco and Shell to operate came clear in the course of the oral argument that Jus-
their separately branded gasoline stations in the West- tices Breyer and Sotomayor professed being baseball
ern states. The contracts contained price-fixing pre- fans for the Red Sox and Yankees, respectively, join-
scribed by the joint venture.
ing Justice Stevens as knowledgeable in baseball.
Justice Sotomayor, in her
THE ORAL ARGUMENT23
most renowned decision
as a U.S. district court With this nine-justice line-up, Chief Justice Roberts
judge, had issued a pre- ("player-manager" on this team) has been shown to
liminary
injunction undergo problems fulfilling his announced policy to
against the MLB owners reach a definitive majority decision in most cases.
in 1995, affirmed on appeal, that effectively ended the
disastrous 1994-95 strike by ordering the MLB owners At the oral argument of the case a lively discussion
to return to the bargaining table.20 While a Judge of ensued when the Justices questioned the parties' and
the 2d Circuit only two years ago, Justice Sotomayor Government counsel and debated indirectly among
concurred in another case decided for the MLB in- themselves, including Justices John Paul Stevens, An-
volving its exclusive licensing policy, choosing sepa- tonin Scalia, Anthony Kennedy, Stephen Breyer, Ruth
rate grounds intermediate in complicated details as Bader Ginsburg, Samuel Alito and Sonia Sotomayor,
between the "Rule of Reason" rationale adopted by together with Chief Justice John Roberts.24 As usual,
two judges in the 2d Circuit, and the simpler "single Justice Clarence Thomas remained silent during oral
entity" concept adopted in the 7th Circuit.21 In a third argument.25 Justice Samuel Alito showed his interest
case she upheld the NFL's eligibility rules for its play- in Baseball and the Law in his 2008 lecture and article
ers' draft, as challenged on antitrust-law grounds.22 in SABR's BRJ (see fn. 3) which defends Justice
Holmes's 1922 Federal Baseball Club decision as in
Justices John Paul Stevens and Anthony Kennedy line with then current antitrust and constitutional law
were both antitrust-law practitioners. Justice Kennedy doctrines.
also taught antitrust law, while Justice Breyer taught
the subject and wrote regulatory and antitrust law
(Continued on page 8)
20 Silverman v. MLB Player Relations Comm., 880 F. Supp. 246 (S.D.N.Y.), aff'd, 67 F.3d 1054 (2nd Cir. 1995). 21 MLB v. Salvino, 542 F.3d 290, 334, at 340 n. 11 (2d Cir. 2008), explaining that, "Under the ancillary restraints doctrine, a chal- lenged restraint need not be essential, but rather only `reasonably ancillary to the legitimate cooperative aspects of the venture.' [Quoting another antitrust decision]." In this case, MLB lawyers did not make a point of appeal that baseball is completely exempt from the antitrust laws. 22 Clarett v. NFL, 369 F.3d 124 (2d Cir. 2004). 23 Although counsel arguing before the U.S. Supreme Court carefully prepare their oral arguments in scripts or notes or by memory, they also rehearse in "moot courts" comprised of colleagues who interrupt the prepared argument to pose legal and factual questions typical of the justices' known predilections in similar cases. They do so anticipating that almost all oral arguments will be peppered by questions and comments of the justices. 24 In a rudimentary attempt to demonstrate my sabermetrics, the Official Transcript of Oral Argument contains 63 pages of 25 lines of text on each page, a total of 1575 lines. The total time elapsed was about 71 minutes. Pp. 1, 65. Justice Breyer's questions and comments total about 221 lines of text (approx. 14% of the text and time), Justice Sotomayor 128 lines (8%), Justice Stevens 69 lines (4%), Chief Justice Roberts 61 lines (4%), Justice Kennedy 52 lines (3%), Justice Ginsburg 36 lines (2%), Justice Scalia 35 lines (2%), Justice Alito 14 lines (1%), or a total of 516 lines, or about 33% of the time elapsed during the arguments. As working hypotheses, which would be difficult, if not impossible or impractical, to test from actual results in each case, one could interpret these simple statistics to indicate first and more probably true than not true, each Justices' comparative interest in the case being argued, second (probably impossible to check in the absence of public records) the probability that these same Justices were more likely to have voted for review of the decision below, and thirdly, less tenable, that they will vote for reversal or modification of the decision being reviewed. In this case, Justices Breyer, Sotomayor and Stevens and Chief Justice Roberts showed the most interest in the case on oral argument. These hypotheses have no application to Justice Thomas, who has a policy of never, or almost never, participating actively in oral arguments. 25 Tony Mauro, Does Justice Thomas' Silence Thwart Advocacy?, 2/22/2010, www.law.com.
7
Winter 2010
Outside the Lines
American Needle (Continued from page 7)
discussing the Court's precedent in an antitrust case
against the NCAA for collectively controlling broad-
Counsel for ANI,26 the NFL and its member clubs and casting of college football,29 the most junior Justice,
Reebok, and for the U.S. Solicitor General argued be- Sonia Sotomayor, first interrupts, questioning whether
fore the Court for a total of over 70 minutes.27
that decision involved a separate "joint venture" with
"the licensing of trademarks, with their quality con-
As often occurs in oral argument, Justices more in- trol, et cetera . . . . Isn't that a substantial difference?"
clined to favor one side will ask questions of counsel He responds cogently, echoing her own opinion in
for the side they may favor that may clarify or limit MLB v. Salvino in the Second Circuit, that she is rais-
the rationale of their preferred position; other Justices ing "a point of difference that the NFL could argue in
less inclined to favor that side may challenge counsel the context of . . . a rule of reason analysis . . . ." 30
with hypothetical cases illustrating the limits and
weaknesses of a party's position or counsel's earlier Justice Ginsburg first and then Justice Kennedy con-
explanations. This "jousting" or "give and take" is tinues on this line of argument. Kennedy shifts to the
normal in the Court and not easily discernable as point that, even though a sports league would win a
"pro" or "con" a particular position. More revealing "rule of reason" antitrust case dealing with the NFL's
are those instances when Justices ask questions or many playing rules changes, a trial on charges of
comments more obviously pointed to persuade other "conspiracy," with treble damages, etc., could be
justices or to rebut each others' predilections. Another, avoided in cases of legitimate "joint action."31
more subtle motivation is for particular justices to as-
sert their leadership and commanding knowledge of Justice Alito, referring to an example given in ANI's
the subject in arguing among themselves or to con- brief, questions whether scheduling of sixteen regular
vince the Chief Justice to whom to assign the writing season games per year, plus playoffs, could be at-
of a draft majority opinion.28
tacked as antitrust violations "if one of the teams
wants to play additional games . . . against a rival team
During counsel's argument for ANI, Justices So- where they will get more money?"32 Alito's point is
tomayor, Ginsburg, Kennedy and Alito and Chief Jus- that the "single entity" concept would save the league
tice Roberts strongly questioned ANI's arguments for from litigating a frivolous antitrust claim challenging a
a reversal, which would force the NFL, its clubs and league's exclusive scheduling rules.
Reebok to undergo a full-blown trial of ANI's anti-
trust claim.
One minute into ANI counsel's argument while he is
(Continued on page 9)
26 ANI's counsel had been hired to argue before the Supreme Court, instead of the attorney who litigated the case initially in the federal district court in Chicago and who argued the appeal in the Court of Appeals. 27 The oral argument took place in four timed parts: first, counsel for petitioner ANI, arguing 25 minutes for reversal of the lower court judgment, so that ANI will eventually obtain full discovery and trial by jury or judge on a rule of reason inquiry on the anticompetitive purposes and effects of the NFL's collective licensing policy; second, counsel for the Solicitor General, arguing 10 minutes for a remand for an inquiry whether the NFL is a legitimate joint venture and its collective licensing policy a reasonable ancillary part of the joint venture, tracking Justice Sotomayor's opinion in MLB v. Salvino for the 2d Circuit; third, counsel for the NFL arguing 30 minutes in favor of affirmance of the "single entity" concept adopted by the 7th Circuit; and fourth, counsel for ANI reserved his remaining five minutes for rebuttal of opposing arguments. 28 Only in those cases in which the Chief votes with the majority, he makes that decision; in other cases, the Justice most senior in the majority fills that role. 29 NCAA v. Board of Regents, 468 U.S. 85 (1984) (Stevens, J., for the Court; White and Rehnquist, JJ., dissenting). Justice Stevens is the only member of that Court still sitting, but his opinion sets forth many antitrust-law considerations affecting a sports league's business operations. In addition, Judge Easterbrook of the 7th Circuit, before his appointment to the 7th Circuit argued the case for the NCAA before the Court including Justice Stevens. He authored the opinion favoring the "single-entity" concept with wellknown antitrust-law views, see note 8 above, and is certainly personally familiar to Justice Stevens who is assigned as the 7th Circuit's own Circuit Justice, effectively the liaison Justice between these two courts. 30 Oral Argument at 4-5. 31 Id. at 6-7. 32 Id. at 8-9.
8
Winter 2010
Outside the Lines
American Needle (Continued from page 8)
entity" issue, the anticompetitive effect of the NFL's
licensing pooling agreement among its clubs was not
Justice Sotomayor chimes in with a similar hypotheti- part of the issue before the Court. Justice Stevens pur-
cal about NFL playing rules.33 Chief Justice Roberts sues, arguing, "[B]ut it is part of your burden to say
summarizes and elaborates further on this analysis, this is not a procompetitive agreement." Justice Scalia
pointing out correctly that ANI's counsel was "beg quickly rejoins it would be part of ANI's burden only
[ging] the question" ­"whether these sorts of rules and if the Court disagrees with the courts below and re-
regulations are horizontal agreements between the mands to the lower courts, and ANI "would bear that
teams or whether they are part of . . . a single enti- burden." Justice Stevens then interrupts Justice Scalia
ties' [sic] articulation of rules."34
in mid-question to play his trump card, asking what if
the district court had ruled that the NFL's joint licens-
This colloquy between justices of ing agreement "was procompetitive in that it would
the Court and counsel is par for the equalize the economic strength of the teams, and
course in oral argument, in which therefore made them all better competitors on the
the justices seek to explore the playing field? . . . [A]s I understand the facts, you've ­
logic and limits of counsels' argu- there is revenue sharing here, . . . they all share in the
ments under various hypothetical product of the sales of the joint product?"36
circumstances, looking to the Court's primary function
of interpreting federal statutes for a variety of pending These comments by Justice Stevens clearly represent
and future legal actions. The Chief then concludes his thinking as to how this case could have been de-
with his own view of the legal distinction between cided on the merits by the lower courts--that the NFL
"unilateral activity [by legitimate joint ventures] under and its member clubs' policy of collectively pooling
[Sherman Act] section 1" and "concerted activity" by and marketing their trademarked logos and sharing
an unlawful cartel of competitors "has consistently revenues on an equal basis has a procompetitive effect
been the distinction between ownership integration of on NFL's games and its business success and there-
assets and contract integration of assets."35
fore has a legitimate business rationale.37
At this point Justice Stevens, speaking for the first Justice Breyer introduces a new argument--contrary to
time, interjects a question as to a significant point of ANI's antitrust claim against the collective licensing
law that instigates a rejoinder from Justice Scalia. of NFL team logos--that it assumes ANI wants "the
(These two Justices are currently the most senior Jus- Patriots to sell T-shirts in competition with the Saints"
tices leading the two recognized wings of the Court. and "the Red Sox to compete in selling T-shirts with
They actually sit immediately to the left and right of the Yankees," whereas in the real world competition
the Chief Justice from counsel's point of view.) Jus- in sports-branded apparel was between the major
tice Stevens asks ANI's counsel, "Is it not part of your sports, baseball, football and hockey, etc.38 Justice
burden not only to argue there are multiple actors, but Scalia again interrupts to bring the discussion back to
also that their agreement has an adverse effect on "whether the lower court was wrong to dismiss your
competition?" ANI's counsel answers it would nor- suit on the basis that this is a unitary operation? I think
mally be a necessary part of ANI's antitrust claim, but that was the only issue."39 Justice Breyer parries, "I
since the courts below dismissed solely on the "single
(Continued on page 10)
33 Id. at 10. 34 Id. at 11. 35 Id. at 12. This point of antitrust law on joint ventures' activities is reflected in Texaco v. Dagher, 547 U.S. 1, 6 (2006) ("When `persons who would otherwise be competitors pool their capital and share the risks of loss as well as the opportunities for profit . . . such joint ventures [are] regarded as a single firm competing with other sellers in the market.' Arizona v. Maricopa County Medical Soc, 457 U.S. 332, 356 (1982)." 36 Oral Argument at 12-14. 37 Justice Sotomayor previously demonstrated her sympathy with this argument in her concurring opinion in MLB v. Savino, see notes 3, 12, 15 & 22 above, and accompanying text. 38 Oral Argument at 16-17. 39 It is often difficult to predict Justice Scalia's vote by his typical jousting style with counsel and other justices. He often spars with Justices Kennedy and Breyer for political, oratorical and intellectual leadership.
9
Winter 2010
Outside the Lines
American Needle (Continued from page 9)
members of the League; you are competing in a market that includes all sports paraphernalia."43
find it easier . . . to think about the case if I know what
is going on. And, I'm not certain this is irrelevant, but The most serious questions posed to counsel for ANI,
given Justice Scalia's persuasive remark, I will with- the antitrust plaintiff, come from Justices Stevens,
draw my question." The transcript notes "Laughter" Breyer, Ginsburg and Sotomayor and Chief Justice
follows, but then Justice Kennedy resuscitates the Roberts, who ask questions and make comments criti-
points made by Justice Stevens and Breyer, "[W]hat cal of ANI's contentions and seemingly favorable on
we are doing is exploring the consequences of com- the merits of NFL's ultimate case--to the effect that
pletely discarding the unitary theory."40
somehow they would prefer that the NFL win the case
on the merits by summary judgment and avoiding a
After counsel for ANI tries to recover his main argu- trial-- based on a simplified or full-blown "rule of rea-
ment, by restating Justice Scalia's point, "whether or son" inquiry, as in the 2d Circuit's MLB v. Savino
not these agreements constitute concerted activity . . . opinions.
between separately owned and controlled competing
businesses," Justice Ginsburg intervenes, stating that Counsel for the Solicitor General as amicus curiae
ANI's argument tends to make every agreement be- supports ANI's case for reversal of the decisions of
tween the NFL teams subject to an antitrust claim with the lower courts. He essentially argues for an interme-
costly discovery; however, if ANI's argument is incor- diate rule of antitrust law, rejecting both parties' posi-
rect that would mean that such cases could be dis- tions. The SG's preferred antitrust rule for "single en-
missed "on the pleadings" without any further in- tity" treatment was most succinctly stated previously
quiry.41
in her brief:
Lest the other Justices miss the import of the NFL's
In adopting a restraint, the league and
"revenue-sharing" of the licensing proceeds, Justice
the teams act as a single entity only
Stevens forces ANI's counsel to admit "my under-
with respect to aspects of their opera-
standing . . . that the revenues that the NFL entity re-
tions that have been effectively
ceives are distributed to the teams in equal shares,"
merged, and only when the restraint
from which concession Justice Stevens hypothesizes,
does not affect competition among the
"[T]his is basically a procompetitive agreement be-
teams, or the teams and the league, out-
cause it tends to make competition stronger on the
side their merged operations.
playing field, and therefore, that's a sufficient defense
(Emphasis added.)45
under the rule of reason, and that's the end of the ball
game?"42 Justices Stevens and Sotomayor, the most Justice Breyer interrupts the SG's oral argument to
senior and junior of the Justices, then gang up on state his preference that this be analyzed not as a
counsel for ANI, Justice Stevens echoing Justice "single entity," but as a "joint venture," subject to the
Breyer's point, ANI is "not just competing among the
(Continued on page 11)
40 Id. at 17-18. 41 Id. at 20-21. 42 Id. at 24-25. 43 Id. at 25-26. 44 Brief for the United States as Amicus Curiae, ANI v. NFL, U.S. Sup. Ct. Dkt. No. 08-0661, dtd. Sept. 2009, at 16. (Available at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-1200_PetitionerAmCuUSA.pdf.) 45 If the market in question is viewed as the market for buying the license to use NFL team-branded caps and T-shirts, as opposed to selling the actual caps and T-shirts, there actually would be active competition for such individual team brand licenses only for the brands of the more successful or popular teams (usually those in the more populated cities and geographic areas). This criterion of the SG's argument neglects the efficiency- and revenue-enhancing aspects of collectively licensing the NFL brands as a whole, saving Transaction costs, reducing or spreading the risks of poor sales in some markets and varying sales in most markets, depending on the teams' and players' successes and declines. These factors make collective licensing of 31 teams' logos much more successful for the overwhelming number of NFL club owners and even for those in the larger or more popular markets, the NY Giants, Chicago Bears, etc., whose owners approved equal sharing of the proceeds of the national TV broadcasting contracts under the leadership of NFL Commissioner Pete Rozelle.
10
Winter 2010
Outside the Lines
American Needle (Continued from page 10)
here was very little exploitation of intellectual prop-
erty of the franchise prior to the creation of NFL Prop-
same criteria quoted above from the SG's brief for a erties [in 1963]."50
lawful "single entity."46 Justice Breyer recognizes he
was only arguing about "terminology," fearing that the Justice Breyer comes back to the fray, arguing with
terminology used in prior case law relating to parent the 7th Circuit's conclusion that "[T]he NFL teams are
and subsidiary corporations as a "single entity" under best described as a single source of economic power
the antitrust laws was being "transferred to a place when promoting NFL football through licensing,"
where it does . . . not belong."47 In a colloquy with which he points out is denied by ANI. He then ex-
Justice Stevens, counsel effectively admits that the plains that truly "independent vendors can't get to-
"exclusivity" of the license granted by the NFL to gether . . . [to] fix prices, a "per se" violation, but
Reebok challenged by ANI was a "red herring" in this "joint ventures are in the middle, we apply a rule of
argument--that it made no difference to the NFL's reason."51 When counsel argues, "[N]one of them can
contention that it be considered as a "single entity."48 produce the product of the venture on their own. No
NFL club can produce . . . a single game," Justice
Counsel arguing for the NFL, its member teams and Breyer asks, "What does the game have to do with
Reebok starts by pointing out there was no question this? I thought we were talking about T-shirts and hel-
but that the NFL is a legitimate joint venture and mets . . . ."52 After some further banter by Justice
therefore the NFL's business decisions are necessarily Breyer followed by laughter, the NFL's counsel re-
unilateral venture actions, not "concerted actions of . . peats, "[T]he purpose of licensing here is to promote
. the venture's members." Justice Kennedy asks for a the product." (Emphasis added.)53
factual and legal clarification whether the NFL's col-
lective licensing was part of its original formation as a At this obvious pretense, Justice Scalia bursts out:
joint venture and whether that would make a legal dis- "Well, the stated purpose is to promote the game. The
tinction. Counsel for the NFL clarifies that the record purpose is to make money. . . . [B]ut don't tell me
shows NFL Properties was formed in 1963 as "a sin- there is not ­ absent this agreement, there would not
gle entity to produce and promote NFL Football." He be an independent, individual incentive for each of the
cites another recent and unanimous precedent of the teams to sell as many of its own ­ of its own shirts and
Court, written by Justice Thomas which "... con- helmets as possible." After counsel contests this state-
firmed the general principle [that] if the venture is ment, Justice Scalia counters, "[T]hat issue could be
lawfully formed, the venture's decisions about how to tried."54 Thus, Justice Scalia appears to favor the con-
produce and promote its products are venture deci- clusion that the courts below erred in granting the
sions, not [those] . . . of the venture members."49
NFL summary judgment, without a trial to determine
the economic purposes and effects of the collective
Justice Sotomayor, continuing her intense interest and licensing program.
reflecting her decision in MLB v. Savino, asks whether
"the NFL Properties or some centralized entity always Justice Sotomayor then joins in forcing the NFL's
exploit[ed] the trademarks of all the franchises, or was counsel to the extreme limit of his argument by, for
there a long period of time in which they individually example, hypothesizing an NFL joint program among
franchised their products?" Counsel confirms, "[T]
(Continued on page 12)
46 Id. at 28-29. 47 Id. at 31. 48 Id. at 32-33. Chief Justice Roberts and Justice Sotomayor continued to press the SG's deputy on their proposed rule without clari- fication of the issue as applied to ANI v. NFL. Id. at 33. 49 Oral Argument at 38-40. 50 Id. at 41-42. 51 Id. at 42. 52 Id. at 43-44, referring to Texaco Inc. v. Dagher, 547 U.S. 1 (2006). Justice Alito abstained, having taken office after the oral argu- ment. 53 Oral Argument at 44. 54 Id. at 45.
11
Winter 2010
Outside the Lines
American Needle (Continued from page 11)
ture in promoting a logo is justified in terms of competition's harms and economic benefits."58 Justice Ste-
members to hire secretaries at the vens then rejoins on this same point and Chief Justice
same $1,000-a-year salary as a "joint Roberts questions counsel further whether there is a
venture," and concluding, "[Y]ou are factual issue as to the NFL clubs' economic purpose in
seeking through this ruling what you pursuing a collective licensing program.59 Justice So-
haven't gotten from Congress: An tomayor advocates the same point as Justice Breyer,
absolute bar to an antitrust claim."55 "[W]hat's the need to . . . label it [a] single entity, as
In response, NFL's counsel attempts to summarize, opposed to label it what it is, reasonable [under the
"[A]s long as the NFL clubs . . . compete as a unit in rule of reason]?" thus silently referring to her concur-
the entertainment marketplace . . . they should be ring opinion for baseball in MLB v. Savino.60
deemed a single entity and not subject to Section 1 . .
."56
Counsel for the NFL then brings out in the open what
this debate is about: "The answer, Your Honor, is in-
Justice Breyer, echoing points made by others, ques- herent in the rule of reason. In the modern era, defend-
tions whether counsel was weighing the economic ing a claim like this on the merits involves an invest-
pros and cons of the NFL's collective licensing versus ment of tens of millions of dollars, thousands of hours
those of permitting individual team licensing. Going of executive time, hours and hours of court time. In
back to the record in the district court, he questions the [MLB v.] Salvino case, there were three years of
whether "I will discover that there is lots of informa- discovery spent on rule of reason issues...."61 Justice
tion showing economic benefit to this venture of pro- Scalia attempts to see if there were any limits to the
moting together . . . so it's clear [without needing a NFL's argument--whether it would justify the NFL
trial] that this is a reasonable agreement."57 He seems clubs "can agree to fix the price at which their . . .
to be arguing for affirmance of the dismissal of ANI's franchises will be sold, by concerted agreement, be-
antitrust claim, but on undisputed facts and legal cause, after all, they are worthless apart from the
grounds apart from the disputed "single entity" con- NFL?" NFL counsel directly takes the bait, "Yes, I
test.
assume they could agree because they are not inde-
pendent sources of economic power." Justice Scalia
Although NFL counsel expressly disagrees with Jus- counters, "I thought I was reducing it to the absurd."62
tice Breyer on this alternative argument for dismissing
ANI's claim, the Justice goes on at length to explain, After laughter, NFL counsel goes on to complete his
"[T]here is . . . a joint venture here to play football, argument for the "single entity" concept by analogiz-
but there isn't a joint venture to build houses . . . this ing the NFL's scheme to that of his law partnership,
is such a different activity, the playing of football ver- Covington & Burling, in collectively agreeing on its
sus the promotion of a logo, that we ought to go and partners' billing rates.63
look under a rule of reason as to whether a joint ven-
(Continued on page 13)
55 Id. at 47. 56 Id. at 48-49. 57 Id. at 49. 58 Id. at 50-51. 59 Id. at 53-57. 60 Id. at 57. 61 Id. at 57-58. The author of this article refers to his participation in an antitrust case under Sherman Act § 1 in the computer indus- try, Data General Corp. v. Digidyne Corp., 473 U.S. 908 (1985) (Justices White and Blackmun dissenting), denying cert. from 734 F.2d 1336 (9th Cir. 1984), rev'g In re Data General Antitrust Litigation, 529 F. Supp. 801 (N.D. Cal. 1981) (granting judgment for Defendant notwithstanding jury verdict for plaintiffs), in which the plaintiffs claimed their attorneys' fees alone up to the appeal cost over $50 million by 1984 and their eventual settlement barely exceeded that amount. Twenty years after this case was settled, the Court (Stevens, J.) overruled the prime legal theorem of this Data General case in Illinois Tool Works v. Independent Ink, 547 U.S. 28 (2006). 62 Oral Argument at 61. 63 Id. at 62-63. This argument is reminiscent of Justice Holmes's point in the 1922 baseball decision that a lawyer sent by his firm to argue a case or a lecturer sent out of state by the Chautauqua lecture bureau to give a speech is not engaged in "interstate commerce." Federal Baseball Club v. National League, 259 U.S. 200, 209 (1922).
12
Winter 2010
Outside the Lines
American Needle (Continued from page 12)
legal and economic arguments involving their beloved
teams tend to fly out the window when a Ball Game is
The Chief Justice asks for ANI coun- in play.
sel's response to the NFL counsel's law
firm hypothetical. He answers by refer- Based on the 25-year history of opinions written by
ence to Justice Thomas's 2006 opinion the current justices and their repeated and emphatic of the Court in Texaco v. Dagher,64 "[I] comments during the oral arguments, it is probable
f you had a wholly integrated joint ven- that the Court will reverse, vacate or modify the judg-
ture, . . . a complete pooling of relevant ment of the 7th Circuit and District Court in dismissing
capital, a complete sharing of profits and losses and an ANI's antitrust claim on an erroneously applied
enforceable non-compete agreement, in those circum- "single entity" concept as applied to the NFL and its
stances the . . . owners of that joint venture . . . were member clubs. Although the exact direction of the
like the share holders in a publicly held company, be- Court's opinion and order is "up for grabs," it may
cause their only interest at that point is in their invest- either (1) vacate the judgment and remand the case to
ment. . . . And at that point they could be treated as the 7th Circuit to review the record to determine one."65 This echoes his earlier response to the Chief whether there are sufficient facts to re-grant summary
Justice that a legitimate joint venture created to avoid judgment for the NFL based on the alternative
antitrust scrutiny includes "ownership integration," grounds recommended by the Solicitor General's brief
"not contract integration," of revenue-producing as- and as ruled in MLB v. Savino, namely, that collective
sets.66
licensing of team logos by a legitimately organized
sports league is a reasonable ancillary restraint of the
CONCLUSIONS AND SPECULATION
"joint venture"; (2) affirm the judgment of dismissal
and grant such a judgment on its own review of the
It is probable that the usual "conservative/ liberal" whole record in the case, as suggested by Justice
split among the nine Supreme Court justices (now 5- Breyer; or (3) order that the case be further remanded
to-4) will not occur in this case. It may happen that the to the District Court for further discovery of material
justices will, as sometimes occurs in these "sports issues on the "reasonableness" of the NFL's policy in
law" cases, take idiosyncratic positions (which are of- light of the fact that discovery and argument of these
ten influenced by their personal preferences as sports issues was aborted by order of the District Court limit-
fans divorced from the judicial politics prevalent in ing discovery to evidence bearing on the "single en-
the Court). Judges, like we ourselves, become "sports tity" concept.
fanatics" on our Moms' and Daddies' knees so that
(Continued on page 14)
64 Oral Argument at 64-65. 65 Id. at 12. 66 Id. at 24-25. See text accompanying note 42 above.
13
Winter 2010 American Needle (Continued from page 13)
Outside the Lines Arbitration Wrap-up­2010 (Continued from page 1)
The vote will probably be 7-to-2 or 6-to-3 in favor of similarly positioned play-
that decision, with Justices Kennedy, Breyer or possi- ers) or Type B player (the
bly Sotomayor or Chief Justice Roberts writing the second 20% of similarly
Court's opinion. The dissenters may possibly be Jus- positioned players). Free
tices Thomas or Alito, opining that the 7th Circuit's agent Type A players
"single entity" rationale appropriately compelled re- who decline arbitration
jection of ANI's antitrust claim.
can net their former club
two draft picks, a com-
From the NFL's point of view, they have little to lose pensatory pick at the end
from an adverse Supreme Court decision, except the of the first round and a
additional time and expense of further proceedings. high draft pick from the
None of the Justices ever intimated on oral argument team player's new or-
that the NFL and its clubs should lose the case on the ganization. Free agent Type B players net their for-
merits to ANI. At worst, a trial could be required to mer club only a compensatory pick.
try factual issues.
The process works similarly for both sets of players
Justice Stevens's view may eventually be tested in and in both cases requires the consent of both parties.
this case on remand whether procompetitive and effi- If a pending free agent declines arbitration, he enters
ciency-and-revenue-enhancing purposes and effects of the free agent market. Of the 23 free agents who were
collective licensing with revenue-sharing actually pre- offered arbitration, only three accepted. Those three,
vail over the anticompetitive purposes and effects of Colorado's Rafael Betancourt, Minnesota's Carl
preventing thirty-two separate licensing competitions Pavano, and Atlanta's Rafael Soriano, all eventually
conducted by the different clubs and likely produce a avoided an arbitration hearing by agreeing to a con-
more competitive game on the playing field, or as Jus- tract with their club.
tice Stevens queried, "[T]hat's the end of the ball
game?"
The arbitration process is designed to promote a set-
tlement at a salary in line with that of other players
In answer to the question posed by the title of this ar- with comparable performance and service time. Play-
ticle, Major League Baseball's traditional antitrust ers eligible for arbitration for the first time receive a
defense against the challenge to collective licensing of large increase in salary since they have no leverage in
its club's logos will win over the NFL's preferred de- their pre-arbitration years when their salaries are un-
fense based on a concept improperly applied to its col- der control of the clubs. Players who have been
lective logo-licensing program.
through the process before also generally receive sal-
ary increases depending on their performance in the
preceding year.
Of the 164 team-controlled players, the club agreed to pursue the arbitration process in 125 cases. The remaining 39 players were not offered a contract by their former club and immediately became free agents. While a number of factors influence a team's decision to non-tender a player, the most important factor, especially in these uncertain economic times, is the salary increases which arbitration often affords. In- (Continued on page 15)
14
Winter 2010
Outside the Lines
Arbitration Wrap-Up--2010 (Continued from page 14)
2010, including a former All Star (Mike
MacDougall), three former first round
cluded amongst these "non-tenders" were:
draft picks (MacDougall, Adam Miller
and Lance Broadway) and three pitch-
Chien Ming Wang, a two time 19 game win- ers with at least 50 big league starts
ner for the Yankees;
(Tim Redding, 144; Anthony Reyes,
Kelly Johnson, who started over 300 games 52; and Seth McClung, 51).
for the Braves in the last 3 years;
Garrett Atkins, who hit .291 and averaged just The 125 players who were tendered a contract by their
under 20 homers and 100 RBI's in his five full club and the three pending free agents who accepted
seasons with the Rockies; and
arbitration formally entered the arbitration process.
Jack Cust, who led the AL in walks and was During this process, the player is considered under
6th in homers in 2008.
contract and negotiations continue between the player
and club. Players that settle prior to hearings have the
Those players were among the 14 non-tendered option to sign multi-year deals and can include per-
players who were able to sign a major league deal for formance bonuses based on playing time and awards
2010. Twelve of those had been through the arbitra- bonuses in their contracts.
tion process before, but only one player, Matt Capps,
was able to negotiate a contract with a salary increase The next formal step in the arbitration process oc-
of more than $300k. Additionally, none of the 14 curred on January 20, when the players and clubs ex-
players was able to negotiate a multi-year contract. changed proposed salary figures for the 2010 season.
The chart below shows the 14 players with their cur- Before that point, 82 of the 128 players had agreed to
rent and former teams and salaries:
contracts with their clubs.
Several significant names appeared on the list of play- After exchanging salary figures, the players and clubs
ers who were only able to find a minor league deal for proceed to an arbitration hearing during which a panel
of three arbitra-
Player Anderson, Brian
`09 Team Red Sox
`09 Salary $440k*
'10 Team Royals
'10 Salary $700k
% Diff. 59%
tors decide whether the player's salary
Atkins, Garrett
Rockies
$7.05 mil.
Orioles
$4.5 mil.
-36% will be the figure
Buck, John Capps, Matt Church, Ryan
Royals Pirates Braves
$2.9 mil. $2.3 mil. $2.8 mil.
Blue Jays Nationals Pirates
$2 mil. $3.5 mil. $1.5 mil.
-31% offered by the
52%
player or by the club. The arbitra-
-46% tors are not per-
Condrey, Clay
Phillies
$650 k
Twins
$900k
38% mitted to elect a
Cust, Jack Garko, Ryan
A's Giants
$2.8 mil. $446k1
A's Giants
$2.65 mil. $550k
-5%
compromise amount. Thirty-
23% eight of the 46
Gomes, Jonny
Reds
$600k2
Reds
$800k
33% p l a y e r s w h o
Gross, Gabe Johnson, Kelly
Rays Braves
$1.255 mil. $2.825 mil.
A's D'backs
$750k $2.35 mil.
-40% reached this stage of the process -13% agreed to contract
Langerhans, Ryan
Mariners
$505k
Mariners
$525k
4% terms before an
Olsen, Scott
Nationals
$2.5 mil.
Nationals
$1 mil.
-60% arbitration hear-
Wang, Chien Ming
Yankees
$5.0 mil.
Nationals
$2 mil.
-60%
(Continued on page 16)
1 2010 was the first time Anderson and Garko were eligible for arbitration, thus their 2009 salaries were not affected by their market value. 2 Gomes was also non-tendered in 2009 after making $1.275 million in 2008.
15
Winter 2010
Outside the Lines
Arbitration Wrap-Up--2010 (Continued from page 15)
relatively quiet arbitration seasons suggesting that the
system is effectively achieving benefits for both sides.
ing. Possibly the easiest post-salary-exchange nego- Players who lack the service time to qualify for free
tiation occurred between pitcher Matt Garza and the agency receive salaries that are influenced by their
Tampa Bay Rays, who each proposed an identical sal- market value and clubs are able to retain the rights to
ary figure of $3.35 million.
these players through 6 years of major league service
before they become eligible for free agency.
Outcome of Arbitrations Heard
Player
Club Player Filing, $k Club Filing, $k Winner
---------------
------ --------------------- ------------------
-----------
Brian Bruney WSH 1,850
1,500
Club
Sean Burnett WSH
925
775
Club
Corey Hart
MIL
4,800
4,150
Player
Jeff Mathis
LAA
1,300
700
Player
Wandy Rodriguez HOU
7,000
5,000
Club
Cody Ross
FLA
4,450
4,200
Player
Ryan Theriot
CHN
3,400
2,600
Club
B.J. Upton TB
3,300
3,000
Club
Of the 120 players who were able to agree to a contract, 101 negotiated one year contracts. The other 19 arranged for multi-year contracts.
Bill Gilbert is a 25-year SABR member and has been involved in preparing arbitration cases for 18 years. Email: [email protected]
The salaries of the remaining eight players were determined by arbitration hearings. Comparatively, only three arbitration hearings were held in 2009 and the
Tim Darley is a Dallas attorney and a 5-year SABR member. Email: [email protected]
last time more than eight hearings were held was in
2001. This year, the Clubs won 5 of the 8 hearings,
improving their overall record to 285-210 since the
inception of the arbitration process. The results of the
eight hearings are reflected in the table below:
The big winners in the arbitration process this year were mostly pitchers; Tim Lincecum, Justin Verlander, Felix Hernandez, Jonathan Papelbon, Joe Blanton and Huston Street all landed big contracts without going before a panel of arbitrators. With the exception of Jonathan Papelbon, each player signed a multi-year contract, and generally, the 2010 salary was very near the team's proposed salary figure.
Of the cases that were heard, the biggest involved pitcher, Wandy Rodriguez of Houston who filed at $7,000K versus $5,000K filed by the club. The arbitrators sided with the club.
The 2010 off season was a continuation of a series of
16
Business of Segregation (Continued from page 2)
other owners in the league had equally shady business
pasts. Greenlee knew that in the sports and entertain-
the nation's largest African-American newspaper with ment world, innovation is a key to success. And
a weekly circulation of about 300,000 at its peak in the Greenlee was an innovator. He came up with the idea
1940s (Wolseley). The combined circulation of some to stage an East-West All-Star Game every summer.
of the other large and prominent papers ­ the Chicago Because of the financial need to barnstorm for part of
Defender, Baltimore Afro-American and Pittsburgh the season ­ thus skewing schedules, records and sta-
Courier and their subsidiary publications ­ was tistics ­ the East-West game was more important so-
661,000 during World War II, but 288,000 by 1963 cially and financially than any postseason series.
(Lanctot).
But despite Greenlee's business smarts, the Negro
Leagues rarely made any serious money. The reasons
The second group was the socialist press. The Daily are many and varied:
Worker began its campaign for baseball integration in For one thing, the core fan base of urban blacks suf-
the 1930s with sports editor Lester Rodney, and later fered greatly in the Depression. When money was
Bill Mardo (Silber). There was a brief golden age be- tight, even an inexpensive ticket to a ball game was a
fore the suspended publication in 1958, although cir- luxury.
culation never topped 36,000. In reality, the Cold War
and McCarthyism effectively diminished any influ- Also, most teams had to rent major league
ence the Daily Worker had in boardrooms or club- ballparks. Rent was steep and the teams
rooms in the United States. Indeed, Branch Rickey of only got a share of the revenue from the
the Dodgers hated the mere thought of a Communist concession stands.
newspaper covering his team.
Team owners did not always see eye-to-eye on league
business. In fact, historian Neil Lanctot, in his book,
The white mainstream press sometimes pushed for Negro League Baseball: The Rise and Ruin of a Black
equal rights, but usually it followed the lead of the Af- Institution, criticized the leagues for having
rican-American and the socialist press. When it did "remarkably shoddy administration" and never setting
crusade, coverage mostly broke down along five main up a strong, independent commissioner who could
points (in no particular order):
oversee the business side of things.
1. The case for continued integration in baseball
as some major league teams and minor leagues Consequently, there were no rules truly binding a
ignored the issue.
player to any team. In fact, not all players had con-
2. The fight for equal pay and opportunity for tracts and most were poorly paid and endured long bus
players at all positions on a baseball diamond. trips of sometimes hundreds of miles. The best players
3. The call to get non-whites into coaching, man- eventually tired of such a life. For example, Satchel
aging and executive roles within major and Paige spent part of his long career playing in the Do-
minor league baseball.
minican Republic for $2,500 a season. He said he
4. Equal treatment for non-white fans and the would rather "go to South America and live in the jun-
press.
gle ... than go back to the league and play like I did
5. Finding a role for the Negro Leagues within for 10 years," according to a July 11, 2004, article in
mainstream baseball.
the Philadelphia Inquirer by Joseph S. Kennedy. (In
1938, Effa Manley tried to sign him for her team, the
EARLY YEARS
Newark Eagles, but Paige stayed in Latin America,
according to an article by Wil Haygood in the April
In order to understand how that model of coverage on 16, 2006, Washington Post.)
a social and business issue evolved, its beginnings
must be examined.
When Pittsburgh Crawfords owner Gus Greenlee founded the Negro National League in 1933, it was the one legitimate business venture that served as a counterpoint to his bootlegging operations in the 1920s and his numbers racket in the '30s. Some of the
(Continued on page 18)
17
Business of Segregation (Continued from page 17)
was the Newark Eagles, owned by Abe and Effa Man-
ley; Abe, a numbers racketeer, was at one time the
Teams did not always keep the public informed. Even treasurer of the Negro Leagues and his wife, Effa, ran
casual daily contact with the press could have helped the Eagles. "In 1942 I told Mrs. Manley I wanted to
inspire a fan base and consistently draw crowds. get married and wanted a $25 a month raise. She said
League offices weren't much help because teams did- she couldn't do it." So Irvin jumped to a team in Mex-
n't regularly report stats and other information, thus ico and played there before being drafted into the
frustrating sportswriters and the papers they worked Army.
for, according to Lanctot.
But when the war ended and ballplayers came home,
And once Jackie Robinson signed with the Dodgers in Effa Manley gave raises. Irvin returned to the Eagles
late 1945, it was the death-knell for the Negro and made $600 a month. She even bought the team an
Leagues as Major League Baseball owners lured the air-conditioned bus, driven by a man named Edison
best players away from struggling black teams with Thomas, according to Haygood's Washington Post
little, if any, compensation to the teams.
article. At the time, box seats inside Newark's Ruppert
Lanctot says Rickey would not compensate the Kansas Stadium were $1.25, other seats cost 75 cents.
City Monarchs for Robinson, the Baltimore Elite Gi- "We were drawing good crowds after the war," Hay-
ants for Roy Campanella, or the Newark Eagles for good quotes Irvin as saying. "People were starved for
Don Newcombe. He did, however, pay the Philadel- good baseball."
phia Stars $1,000 for Roy Partlow and the Memphis
Red Sox $15,000 for pitcher Dan Bankhead. Cleve- Despite the flush times, the metaphoric "going out of
land's Bill Veeck paid the Newark Eagles $1,000 for business" sign was always nearby. In fact, all the
Larry Doby. The Giants paid Newark $5,000 for leagues eventually went out of business:
Irvin's contract. But instances of compensation were The National Colored Base Ball League (the
rare, or measly.
first of the Negro Leagues) lasted two weeks in
1887.
"Not surprisingly black baseball failed to develop a coherent plan to prepare adequately for the looming
The Negro National League lasted from 1920 to 1931, but the league's life was in jeopardy
prospect of integration and was caught off guard by
in 1930 when founder Rube Foster died and
Branch Rickey's 1945 signing of Jackie Robinson . . .
the Kansas City Monarchs withdrew to be-
. The decline of black baseball in the post-Robinson
come an independent team.
era was inevitable," Lanctot wrote.
The Eastern Colored League lasted from 1923
Despite all that, attendance picked up during World War II since defense industry jobs meant more income, and also for a brief period in the postwar economic readjustment. Tom Weir wrote in an April 16, 1997, USA Today article that in the 1940s, Negro Leagues baseball was the third-biggest black-owned industry in the country, only trailing hair products companies and an insurance firm. Everything seemed to peak at the 1944 East-West All-Star game, played before a record crowd of 46,000+ at Chicago's Comiskey Park. That was also the period (1942-46) when
to 1928. The American Negro League played one season in 1928. Gus Greenlee organized his Negro National League in 1933; most of the teams were in the East. The Negro American League was formed in 1937, with most teams in the South and Midwest. In 1948, the NNL merged with the NAL, but that disbanded in 1963.
the Kansas City Monarchs made cause of increased attendance.
about
$260,000 be-
After African Americans permanently gained entry into the majors, the various Negro Leagues eventually
A brief snapshot of Monte Irvin's time in the Negro Leagues also serves as an example of the roller coaster ride of poor-to-riches-to-bust: "When I first joined the team, [in 1937] I was making $125 a month," he said
came to be seen as symbols of Jim Crow. Even so, the demise of the leagues meant the loss of hundreds of jobs and business in the cities with teams in the leagues.
in Haygood's article. The team he was referring to
(Continued on page 19)
18
Business of Segregation (Continued from page 18)
report that was subsequently almost destroyed. Only a
few copies survived of The Report of the Major
INTEGRATION
League Steering Committee for Submission to the Na-
tional and American Leagues at Their Meeting in Chi-
It is important to understand that the Negro Leagues cago, according to a June 18, 1997, Philadelphia In-
existed both because of the intransigence of white quirer article by Frank Fitzpatrick. That report was
team owners and players, and because of the interpre- characterized in Fitzpatrick's article as "the last offi-
tation of the Supreme Court's 1896 ruling in Plessy v. cial racist statement from organized baseball."
Ferguson, which upheld Louisiana's "separate but
equal" statutes. Michael Klarman, in his From Jim MacPhail devoted 13 paragraphs to what he called
Crow to Civil Rights: The Supreme Court and the "The Race Question." Historians have been blunt in
Struggle for Racial Equality, argues that the Plessy interpreting what he wrote: "The obstructionist
ruling showed that both white northerners and white MacPhail saw it as a means to forestall desegrega-
southerners were apathetic or hostile to equal rights tion," Jules Tygiel once said.
(Gillman, 2004).
But MacPhail at the time saw the report as a chance to
But those attitudes eventually, gla- explain why baseball was discriminatory, according to
cially changed. The question is Fitzpatrick. Among the points MacPhail used to argue
why. Well, what must be taken into to keep baseball segregated:
account is how baseball mirrored 1.) Troublemakers outside mainstream public
the times ­ from the 19th century opinion sought to use the issue for their own ad-
when Jim Crow became the law of vantages. They were "political and social-minded
the land and was backed by all the drum-beaters [who] single out professional base-
powers of the state, to the push for ball for attack because it offers a good publicity
greater civil rights that coincided medium."
with urbanization and industrialization of the New 2.) Black fans at major league games would drive
Deal in the 1940s and into the Great Society of the away white fans, ". . . the preponderance of Negro
1960s. By the 1950s and '60s the South was under in- attendance in parks such as Yankee Stadium, the
creased media attention with spring training visits by Polo Grounds and Comiskey Park could conceiva-
more and more integrated teams, so the worst excesses bly threaten the value of Major League fran-
of Jim Crow could not be glossed over by a sympa- chises."
thetic press (Klarman, 2004, p. 188). When Southern 3.) Segregation would destroy the Negro Leagues,
police literally turned fire hoses and dogs loose on Af- "Baseball . . . has grown and prospered over a pe-
rican-American protesters, which was broadcast na- riod of many years on the basis of separate
tionally, it partially transformed some racial opinions leagues. . . . The Negro League will eventually
and this, in turn, led to the passage of the Civil Rights fold up ­ the investments of their club owners will
Act of 1964.
be wiped out ­ and a lot of professional Negro
players will lose their job."
In other words, what was business as usual in the 19th
century was becoming bad business in the 20th cen- MacPhail's report didn't surface until 1951, when a
tury. Yet some organizations and leagues tried to bide House subcommittee investigating baseball's reserve
their time in hopes that the fervor for equal rights clause heard about it. Fitzpatrick said that MacPhail
would bypass their corner of the world. And baseball later testified that he and his fellow committee mem-
was originally prepared to let them get away with it. bers were unanimous in supporting it.
Between July 8 and Aug. 6, 1946, baseball owners and
execs held a series of six meetings designed to look at "Signing a few Negro players for the major leagues
the business of the game and the stirrings of players' would be a gesture," as Fitzpatrick quotes MacPhail.
sentiments toward unionization. A steering committee "But it would contribute little or nothing toward a so-
chaired by New York Yankees exec Larry MacPhail, lution to the real problem."
and composed of owners Tom Yawkey of the Boston
Red Sox, Sam Breadon of the St. Louis Cardinals and
Phillip Wrigley of the Chicago Cubs, issued a 15-page
(Continued on page 20)
19
Business of Segregation (Continued from page 19)
his fielding too many blacks, he would play it safe
for he had too much to lose (Ashe).
`THE PROBLEM' EVOLVES
For example, Branch Rickey said the Dodgers sent
The late, great tennis pro Arthur Ashe wrote a series outfielder Sam Jethroe to the Boston Braves because
of books about African American athletes, and he management felt that a fifth black player on the team
characterized the years from 1947 to 1953 as years of in 1950 could hurt club morale and cut into gate re-
token integration. In baseball some teams only slowly ceipts (Heaphy).
added black players to lineups while other teams and
whole leagues ignored players of color. Although On Jan. 21, 1954, Dick Young wrote in the Sporting
most of the press focus was on Jackie Robinson in News that having too many blacks on a team was not
Brooklyn, Larry Doby also broke into the major good business:
leagues with the Cleveland Indians in the summer of Suppose you own a ball club and it represents
1947, a few months after Robinson. Robinson spent $3,000,000. Everything you do in connection with
10 years in the majors and Doby 13, but another pio- the club must be done with an eye toward protect-
neer from 1947, Henry Thompson, who played with ing your investment ... [playing too many blacks]
the American League's St. Louis Browns, lasted just would be taking a chance ­ and no man takes a
27 games. His time in the big leagues was typical for chance with $3,000,000 if he doesn't have to
many African-American players who would only be (Tygiel).
given a token shot, according to Ashe. (Thompson
later became the first African-American player with Young wrote that five blacks on a
the New York Giants in 1949.)
team of 25 was about the right
mixture. However, in an article in
By 1950 the situation had not changed much. In an the Feb. 23, 1955, Sporting News
April 1951 article in Baseball Magazine, Dan Daniel he wrote that the Dodgers that year
said that there were only nine black players in the ma- projected that eight black players
jors during the 1950 season.
could make the roster. "I honestly
don't believe baseball is ready for
Time magazine reported in its May 14, 1951, edition that step right now," he wrote
that there were 14 black players in the major leagues (Tygiel; Heaphy).
and that the "color line" was still firmly in place since
the "southern-most cities (Washington, Cincinnati, St. Life in baseball wasn't any better for the African-
Louis), and several clubs far above the Mason-Dixon American fans or press. Sam Lacy of the Baltimore
line ­ notably the Boston Red Sox and New York Afro-American had what he termed "the Jackie Robin-
Yankees ­ still have a tacit exclusion policy."
son beat" throughout Robinson's career. He wrote that
spring training down South was hard, and so was cov-
It took almost 14 years (starting with Robinson's sign- ering games in the Southern cities ­ Washington, Cin-
ing with the Dodgers in late 1945) for the major cinnati, St. Louis and Baltimore (the St. Louis Browns
leagues to be fully integrated. In July 1959, infielder had moved to Baltimore for the 1954 season) ­ which
Elijah "Pumpsie" Green made his big league debut still had segregated hotels and restaurants. The Jim
with the Boston Red Sox, making Boston the last of Crow pattern for players and sportswriters remained in
the then 16 major league teams to sign a black player. effect partly through the 1960s. In order to try to do
Green lasted 50 games that season, but an unbylined something about it, Branch Rickey leased the former
article in the June 1959 Ebony magazine noted that he U.S. Naval Air Station in Vero Beach, Fla., in 1948 so
was one of 56 "Negro players" in the big leagues that that teammates could have equal accommodations.
season, 42 in the National League and 14 in the But the Dodgers had to acquiesce to local custom on
American League. If Ebony was celebrating, Ashe had segregating fans of different races during spring train-
the convenience of history to note the facts:
ing games. Lacy wrote about one such game in his
... and still in 1959, there was even an unwritten column on April 10, 1948:
limit on the number of black players on a team
roster, as well as on the field at any given time. If
an owner thought his white fans might object to
(Continued on page 21)
20
Business of Segregation (Continued from page 20)
What Lacy means is the white players were to the air-
Even native Floridians, hardened to the indignities conditioned Chase, while the black players were to
of Jim Crowism, shun Vero Beach as "a good black hotels or boarding homes. In January 1960,
place to be from ­ far away from." ... Vero Beach when Wendell Smith was writing for The Chicago
police pressed their obnoxious presence on American, he started a campaign to halt separate hous-
"Dodgertown" for the two-game series between ing of black and white players. He wrote a series of
Brooklyn and the Montreal Royals last week. They columns and articles pointing out that black players
had nothing to do, nobody seemed to want them resented the humiliations and indignities of segrega-
around; and, with nothing to occupy them, they tion. He also wrote to all of the major league clubs
might have enjoyed the games. But they didn't ­ protesting the practice. Soon, the San Juan Star joined
they busied themselves herding the colored fans the crusade and suggested that baseball move spring
into a roped-off area down the left field line, training games to Puerto Rico, California and Hawaii.
sweating, cussing and fuming in the process, in- As a result, Dr. Ralph Wimbush, head of the St. Pe-
stead of watching the game and letting others ­ tersburg, Fla., NAACP said he would no longer allow
both colored and white ­ do the same (Reisler). clubs to send black players to his home. From now on,
he said, all players should be housed together in the
African-American fans endured indignities, even same hotels. On Feb. 2, 1961, the New York Yankees
though owners were quick to take their money. This is announced that all players would be housed together.
from a Lacy column on April 2, Soon, other clubs followed: the Chicago Cubs stayed
1949, about a spring training game at the Maricopa Inn in Mesa, Ariz.; the San Francisco
in Haines City, Fla:
Giants in the Hotel Adams in Phoenix; and the Cleve-
land Indians in the Santa Rita Hotel in Tucson. The
This town's colored fans are being editors of The Chicago American nominated Smith for
admitted to spring training exhibi- the Pulitzer Prize. Although Smith didn't win, A.S.
tion games for the first time in his- (Doc) Young, writing in the June 1969 issue of Ebony,
tory ... In previous years when the said "Smith ... had the satisfaction of knowing that he
[minor league] Baltimore Orioles had played another key role in the integration of base-
­ and before them, the Kansas ball operations" (Young).
City Blues ­ trained here, only white fans were
admitted to the park ... When they turned out for If accommodations were shifting toward equality,
the first games played by the Newark Bears, Yale salaries were not. An example is the concept of
Field workmen had to hurriedly construct a make- "centrality," or "stacking." According to a study pub-
shift "colored" stand ... This reporter, looking for lished in a 1970 sports sociology journal, African
the "colored restroom," was directed to a tree Americans were usually found in peripheral positions.
about 35 yards off from where the right field foul Infield positions were considered central because there
line ended (Reisler).
was a high degree of social interaction with other
players; the outfield was seen as peripheral because
These indignities didn't just happen in the South in the there wasn't as much interaction with others. Re-
spring. Prejudice knows no boundaries, nor does it searchers John Loy and Joseph Elvogue studied the
follow a season. For example, a Lacy column from race and playing position of all major leaguers who
April 1, 1950, talks about sleeping and eating accom- had been in at least 50 games during the 1967 season.
modations in big league cities during the summers: They found that black players were most often found
in the outfield (36 of 74 total outfielders were black),
In Cincinnati, while the Netherlands-Plaza accepts but were rarely in the infield (only 19 of 94 infielders
the whole group, it is "suggested" that the colored and catchers).
members of the party stay out of the dining room.
A special arrangement is made whereby their Loy and Elvogue said that meant coaches assigned
meals are served in their rooms.
beginning players to a position based on race. A
The Dodgers' hotel in St. Louis is the Chase. On player's position generally relates to what he is paid,
arrival in that city, the white players take cabs in and a December 1970 report by Anthony Pascal and
one direction and the colored in another (Reisler).
(Continued on page 22)
21
Business of Segregation (Continued from page 21)
Clark Dick and Larry Lester, editors. "The Negro
Leagues Book." Cleveland: Society for American
Leonard A. Rapping for the Rand Corporation said Baseball Research, 1994.
"no black player before 1959 received a signing bonus Daniel, Daniel M. Negro Baseball, Baseball Magazine
of $20,000 or more, while twenty-six white players (April 1951), 373-75ff.
received such sums in the same time period ... from Gillman, Howard. Review of Michael J. Klarman's
1959 through 1961, forty-three white players received "From Jim Crow to Civil Rights: The Supreme
bonuses in excess of $20,000 while only three blacks Court and the Struggle for Racial Equality." (New
received as much." (Ashe).
York: Oxford University Press, 2004). On the Hu-
manities and Social Sciences Online Web site,
"Stacking" and its surrounding myths of black inferi- Dec. 24, 2004. Retrieved April 8, 2005.
ority likely also contributed to the dearth of African Heaphy, Leslie A. "The Negro Leagues, 1869-1960."
Americans in management positions in baseball. An Jefferson, NC: McFarland & Company, Inc., 2003.
April 9, 1987, USA Today story said that only 17 of Jones, Terry. Racial Practices in the Front Office,
879 top administrative positions in the major leagues Black Scholar, 18 (May-June 1987), 16-24.
were occupied by African Americans. Terry Jones, in Lanctot, Neil. "Negro League Baseball; The Rise and
an article in The Black Scholar in 1987, said the base- Ruin of a Black Institution." Philadelphia: The
ball old boys club shunned African-American players UNIVERSITY OF PENNSYLVANIA Press, 2004.
who had paid their dues and who should have been Loy, J.W. and J.F. McElvogue. Racial Segregation in
eligible for management jobs once their playing days American Sport, International Review of Sport So-
were done. Jones says the bosses justify the exclusion ciology, 5 (1970), 5-23.
by clinging to myths that blacks are shiftless, lazy or Moffi, Larry and Jonathan Kronstadt. "Crossing the
just plain dumb and can't handle front office jobs.
Line: Black Major Leaguers, 1947-1959." Jeffer-
Paradoxically, the number of African-American play- son, N.C.: McFarland & Company, Inc., 1994.
ers has also dropped. Proportionally, about one out of Place in the Sun: Negro Players, Time, 57 (May 14,
every six players in the major leagues is an American- 1951), 91-93.
born black player, down from one out of every four in Reisler, Jim. "Black Writers/Black Baseball: An An-
the 1960s. Also, by 1987, surveys said that only about thology of Articles from Black Sportswriters Who
7 percent of the fans at ballparks were African Ameri- Covered the Negro Leagues." Jefferson, N.C.:
can.
McFarland & Company, Inc., 1994.
Silber, Irwin. "Press Box Red; The Story of Lester
An April 15, 2008, story on espn.com said that the Rodney, the Communist Who Helped Break the
major leagues were working harder at presented a di- Color Line in American Sports." Philadelphia: The
versified face to the world and trying to draw interest Temple University Press, 2003.
among more fans by better hiring practices. MLB re- The Negro Comes of Age in Baseball, Ebony, 14 (June
ceived an A- for racial hiring from Richard Lapchick, 1959), 41, 45-46.
director of the University of Central Florida's Institute Tygiel, Jules. "Baseball's Great Experiment: Jackie
for Diversity and Ethics in Sports; it received a C+ for Robinson and His Legacy." New York: Oxford
gender hiring. Its overall grade remained a B. Lap- University Press, 1983.
chick said 28 percent of employees at baseball's cen- Voigt, David Q. Reflections on Diamonds: American
tral offices were nonwhite, including 20 percent Baseball and American culture, Journal of Sports
among senior executives. Women were 42 percent of History, 1 (May 1974), 3-25.
employees, but 26 percent of the senior executives. Wolseley, Roland E. "The Black Press, U.S.A." 2nd
edition. Ames, Iowa: Iowa State University Press,
REFERENCES
1990.
Young, Andrew S. The Black Athlete in the Golden
Ashe, Arthur R. Jr. "A Hard Road to Glory: Baseball;
Age of Sports: Stereotypes, Prejudices, Other Un-
The African-American Athlete in Baseball." New
York: Amistad, 1988.
Joe Marren is an Assistant Professor in the communi-
Briley, Ron F. Amity is the Key to Success: Baseball cation department at Buffalo State College, where he
and the Cold War, Baseball History 1 (Fall
teaches news writing, news editing and new media
1986a), 4-19.
courses Email: [email protected]
22
Rating the GMs (Continued from page 2)
GM RATING LEADERS SINCE 1977
to the presence of Albert Pujols. But Albert Pujols 1977 Cedric Tallis
NYY
16.3
was a Cardinal in 2009 because prior to the 2004 sea- 1978 Al Campanis
LA
15.0
son Walt Jocketty signed him to a seven-year contract. 1979 Harding Peterson Pit
15.9
Jocketty may have been the GM in Cincinnati in 2009, 1980 Gene Michael NYY
9.5
but his residual impact on the Cardinal roster was the 1981 Roland Hemond CWS
12.3
principal reason why St. Louis reached post-season 1982 Buzzy Bavasi
Cal
11.8
play.
1983 Paul Owens
Phi
10.6
1984 Joe McDonald
Stl
7.7
In short, the GM Rating System isn't one rating but 1985 Clyde King
NYY
18.6
three:
1986 Frank Cashen NYM
9.0
1. It is a short-term rating: the impact on team 1987 Bill Lajoie
Det
12.2
performance of all of a GM's moves from the end 1988 Jack McKeon
SD
6.9
of the previous season to the end of the season in 1989 Lee Thomas
Phi
10.0
question.
1990 Dave Dombrowski Mtl
6.8
2. It is also a long-term rating: the impact on 1991 Andy McPhail Min
9.9
team performance of moves made by the GM prior 1992 Gene Michael NYY
10.8
to the end of the previous season.
1993 John Schuerholz Atl
18.8
3. It is a residual rating: the impact of moves 1994 Roland Hemond Bal
9.0
made by prior general managers on team perform- 1995 Dan Duquette
Bos
18.7
ance.
1996 Kevin Towers
SD
17.2
1997 John Schuerholz Atl
14.4
You can validly focus on any of those aspects indi- 1998 John Schuerholz Atl
19.9
vidually, but you cannot amalgamate them into a sin- 1999 Joe Garagiola Jr. Ari
12.3
gle number because they measure wholly different 2000 Walt Jocketty
Stl
19.4
things. It is a true statement, for instance, that Ned 2001 Walt Jocketty
Stl
12.0
Colletti's short-term rating in 2009 was 9.5, and his 2002 Brian Sabean
SF
17.2
long-term rating was 6.0. But it does not follow, then, 2003 Pat Gillick
Sea
10.1
that he can be given an overall rating expressed as 2004 Mike Flanagan Bal
16.1
15.5. That would be equivalent to asserting that an 2005 Terry Ryan
Min
19.9
athlete's 10.0 in the 100-yard dash and 4:00 in the 2006 Ned Colletti
LA
11.1
mile translated to an overall speed of 4:10.
2007 John Schuerholz Atl
9.8
2008 Kenny Williams CWS
11.4
Forced to pick one rating, I prefer to look at short- 2009 Ruben Amaro
Phi
10.6
term figures because for the most part I think fans ex-
pect things to happen now as opposed to some great
come and get it point in the future. That's especially In each case, the rating has five components. The first
true at big league ticket prices. So in this essay I'm component involves players acquired in transactions
focusing on short-term scores. (If you'd like to get the with other teams. These are typically trades, waivers
long-term ratings for 2009 or any previous season, or straight sales. The second component involves
message me and I'll be happy to send them along.) players leaving the team in transactions involving
other teams. The third component involves players
Structurally, short-term and long-term ratings are obtained in direct dealing: that is, players either signed
identical. The difference is that they measure deci- as a free agent or re-signed. The latter could include
sions made during different time periods. Each rating re-signed players who otherwise would have been
is a composite of the BFWs and PWs (as calculated by free-agent eligible as well as those signed to multi-
Pete Palmer) of all players involved in transactions year contracts prior to free agent eligibility. The fourth
during the time period outlined above. This produces a component involves players lost to free agency or re-
number approximating the number of games in the leased. The fifth component involves players pro-
standings that each GM's moves either improved or duced by the team's farm system who had fewer than
hampered their club.
(Continued on page 24)
23
Rating the GMs (Continued from page 23)
Highlights included the re-signing of Ryan Howard
and Jason Werth, dumping Pat Burrell for Raul
100 plate appearances or fewer than 50 innings Ibanez, and finessing the decline of Jamie Moyer by
pitched in all prior seasons.
letting J.A. Happ mature. Amaro is the third Phillies'
GM to lead the GM rating, and the first since Lee
Although the GM Rating System often tends to reflect Thomas in 1989.
a ballclub's position in the standings, that is not its Acquisitions (1.0). Trade losses (1.8): Carrasco
purpose and it does not necessarily do so. Rather, it is 1.5, Coste 1.2. Signed/re-signed (4.4): Werth 2.8,
designed to measure how much each GM helped or Howard 1.7, Ibanez 1.4, Madsen 1.2, Moyer -1.3,
harmed his team's position compared to what would Bruntlett -1.4. Free agents lost (4.4): Eaton 2.2,
have happened if the team's roster had been left un- Burrell 1.7. Rookies (-0.8): Bastardo -1.1.
touched. Thus it is possible for the GM of a non-
contender to rank high because he prevented a team's 2. Ned Colletti (LAD), 9.5 (40 players). Colletti en-
collapse. That precise thing occurred in 2004 when joyed the best season of any big league GM on the
Mike Flanagan led the GM Rating System short-term free agent acquisition market. The eighteen players he
category with a score of 16.1 despite the fact that the either signed or re-signed -- headlined by Manny Ra-
Orioles finished 78-84.
mirez and Casey Blake -- improved the Dodgers'
standing by a cumulative 8.1 games. Factoring in the
In effect, the system said, "imagine how bad the Ori- accomplishments of players who left Los Angeles via
oles would have been without him?" The system can free agency, Colletti stood a close second to Amaro
work the other way as well. In 2009, the Red Sox won overall in free agent impact. Had the farm system pro-
95 games and made the playoffs. The short-term por- duced a positive contribution, Colletti may have
tion of the GM Rating System was not impressed, rat- ranked as the game's best GM for the second time in
ing Theo Epstein 21st on the finding that his personnel his career, 2006 being the other season. As it was,
moves had actually cost Boston 5.4 games. (He did Colletti joined Amaro in improving his team by more
better on the long-term rating, with a score of 12.0.) games (9.5) than the number (7) by which they quali-
fied for the post-season. In 2009, they were the only
Here are brief sketches of the two GMs who could legitimately claim to have ma-
short-term performance of neuvered their teams into the post-season.
each general manager for the Acquisitions (0.8). Trade losses (0.9): Young 1.1.
2009 season. Included is Signed/re-signed (8.1): Blake 2.8, Wolf 1.8, Hud-
their cumulative score as son 1.4, Ramirez 2.2, Belisario 1.2, Loretta -1.0,
well as the number of player Castro -1.2. Free agents lost (0.3): Saito -1.4.
moves involved. Also in- Rookies (-0.6): Troncoso1.1.
cluded is a breakdown by
each of the five components of the short-term score: 3. Frank Wren (Atl), 9.1 (31 players). Wren led the
Acquisitions involving other general managers; depar- majors in 2009 in improving his team via deals with
tures involving other general managers; direct sign- other GMS. His trades, sales and purchases netted At-
ings or re-signings; losses due to signings by other lanta 4.1 games in the standings. That figure is high-
teams; and rookies. Moves resulting in a gain of loss lighted by the acquisition of Javier Vazquez (from the
of 1.0 games or more in the standings are individually White Sox) and the re-acquisition of Adam LaRoche
noted. Each GM's most significant player move is from Boston. Wren helped the Braves by another 0.6
bold-faced.
games when the unburdening of three unproductive
players is factored into the equation.
1. Ruben Amaro (Phi.), 10.6 (35 players). Amaro Acquisitions (5.1): Vazquez 3.9, LaRoche 1.1.
inherited a world championship team and didn't dam- Trade losses (0.6). Signed/re-signed (-0.2): Ross
age it, a neat feat. He did better than that, compiling 2.1, Anderson -2.2. Free agents lost (3.0). Rookies
the best score among all major league GMs on the free (0.6): Hanson 2.0.
agent market. Dealing directly with players, he added
8.6 games to the Phils' standing. Amaro was also good
when he worked with other GMs. His trades, sales and
purchases advanced the Phils' fortunes by 2.8 games.
(Continued on page 25)
24
Rating the GMs (Continued from page 24)
lost (2.9): Renteria 2.8, Rincon 1.4. Rookies (1.2):
Porcello 1.4.
4. Brian Cashman (NYY), 7.5 (45 players). Since the
Yankees are rolling in dough, Cashman ought to rank 6. Dave Hill (Fla), 5.1 (39
near the top of this list every year, right? It hasn't players). As can be the case
worked that way. In fact, his 7.5 rating was Cash- with small-market teams, Hill
man's best since 2002, which was also the last time he helped the Marlins as much by
ranked higher among GMs (first in the AL, third over- whom he foisted off on others
all). The key turned out to be a relatively subtle deal, as who he acquired. He most
the acquisition of Nick Swisher from Oakland. important trade turned out to
Swisher was a bit player until Xavier Nady got hurt, be the dispatch of one-
but he came off the bench to improve the Yanks by dimensional Mike Jacobs to
1.3 games. Cashman got big-time notice for his free Kansas City . Hill acquired eight players who saw sig-
agent acquisitions of C.C. Sabathia and Mark nificant playing time during 2009, and their cumula-
Teixeira. Those moves were good, but they were es- tive impact partially offset the 3.1 game cost in the
sentially offset by the agreements that brought under- standings of Emilio Bonifacio's presence in the
achievers Damaso Marte and Sergio Mitre to New lineup.
York, and that re-upped Cheng Ming Wang. Time was Acquisitions (-2.2): Bonifacio -3.1 . Trade losses
when New York never lost a player with perceived (3.7): Jacobs 1.7, Andino 1.1, Willingham -1.2.
value to free agency, yet Cashman faced several big Signed/re-signed (2.8): Johnson 3.0, Calero 1.0,
"keep or cut" decisions after 2008 and with the excep- Ayala -1.1. Free agents lost (0.2): Rookies (0.6):
tion of Bobby Abreu made the right call every time. Wood 2.0, West -1.0.
Those free agent losses alone improved the Yankees
by nearly four games. The Yankees rarely rely on their 7. Jim Hendry (ChC), 1.7 (42 players). Northsiders
farm system, but the 2009 version produced values of will find this hard to believe, but Jim Hendry actually
the stripe of Alfredo Aceves.
improved the Cubs during 2009. Granted, much of
Acquisitions (1.7): Swisher 1.3. Trade losses (0.9). that improvement was due to the players he got rid of,
Signed/re-signed (0.2): Sabathia 2.9, Teixeira including fan favorite Mark DeRosa. The exiling-by-
1.6, Burnett 1.0, Mitre -1.3, Marte -1.3, Wang - trade of nine Cubs ­ notably DeRosa, Kevin Hart and
2.9. Free agents lost (3.9): Pavano 1.8, Ponson 1.8, Ronnie Cedeno ­ unsaddled the Cubs of the equiva-
Giambi 1.2, Abreu -1.4. Rookies (0.8): Aceves lent of 3.6 losses. Free agent departures ­ largely Chad
1.0.
Gaudin ­ aided the cause by another two games. And
while the heralded free agent signing of Milton Brad-
5. Dave Dombrowski (Det), 5.9 (35 players). The ley certainly flopped, it wasn't Hendry's most damag-
Tigers' failure to make the 2009 post-season is gener- ing mistake. The decision to turn second base over to
ally seen as a great disappointment in Detroit. The real Aaron Miles (on a two-year deal) cost 1.6 games, four
story is how close Dombrowski came to booting the times the negative impact of Bradley.
Tigers home ahead of Minnesota. Rick Porcello Acquisitions (-0.7): Baker 1.2. Trade losses (2.4):
proved a find in the farm system, and the signing of Hart 2.4, Cedeno 1.9, DeRosa 1.2, Burns 1.1, Mar-
Brandon Lyon gave a major lift to the bullpen. Three quis -1.1, McGehee -1.2, Wuertz -1.4. Signed/re-
members of the 2008 Tigers were poised for big-time signed (-2.5): Dempster 1.1, Miles -1.6. Free
stumbles in 2009, and Dombrowski had the foresight agents lost (2.1): Gaudin 2.1. Rookies (0.4):
to unload all three of them: Edgar Renteria (released Wells 2.6, Samardzija -1.0, Hoffpauir -1.0.
and signed by San Francisco), Lucas French (to Seat-
tle for Jarod Washburn) and Juan Rincon (released to 8. Jon Daniels (Tex), 1.2 (29 players). In a quiet, un-
Colorado). Dombrowski would have pushed Cashman assuming way, Jon Daniels is building a resume as
for the AL's top spot but for the failures of trade ac- strong as any of his fellow GMs. Following a fresh-
quisitions Washburn, Brian Anderson and Aubrey man 2006 season in which he took plenty of lumps,
Huff to produce.
Daniels ranked s the 5th most successful GM in 2007,
Acquisitions (-0.5): Jackson 1.8, Huff -1.0, Ander- and the 10th best in 2008. That makes this his third
son -1.2. Trade losses (2.0): French 1.3. Signed/re- straight season in the top 10, a streak only Hendry can
signed (0.3): Lyon 2.1, Everett -1.4. Free agents
(Continued on page 26)
25
(Rating the GMs Continued from page 25)
chased, signed or promoted from the minors, fewer
than one-third improved the Reds. The most signifi-
match. Daniel's strength has been his willingness to cant crash-and-burn: free agent signee Willie Taveras.
accept incremental improvement. Of the 29 players Acquisitions (-0.8). Trade losses (-2.4). Signed/re-
Daniels either obtained for or lost from the Rangers, signed (-3.1): Taveras -2.3. Free agents lost (0.7):
only the promotions of rookie Elvis Andrus and Derek Affeldt -1.1. Rookies (-0.4): Rosales -1.4.
Holland carried an impact beyond 1.1 games. But
three-quarters of those moves helped the Rangers. At 11. Josh Friedman (TB), -1.8 (29 players). With Evan
season's end, Daniel was one of only three American Longoria, Carl Crawford and Orlando Pena already
League GMs to actually help his team in 2009.
signed to multi-year deals, most of Friedman's heavy
Acquisitions (1.2). Trade losses (-2.3). Signed/re- lifting appeared to already be done as 2009 began. He
signed (-0.6). Free agents lost (1.0): Vazquez 1.1. signed Pat Burrell to add a bat, but Burrell's under-
Rookies (0.4): Andrus 1.7, Holland -2.7.
performance pretty much typified the Rays' season.
Short-term, Friedman got burned in his dealings with
9. Dan O'Dowd (Col), 0.9 (36 other GMs, shipping Scott Kazmir to the Angels
players). Considering only the (where he had a 1.73 ERA in 6 starts) for three minor
players he acquired, Dan leaguers, and sending Edwin Jackson (13 wins, 3.62
O'Dowd was baseball's master ERA) to Detroit for the lightly used Matt Joyce. He
trader in 2009. His acquisitions released Jonny Gomes, who signed with Cincinnati
of players such as Huston and produced 20 home runs. The arrival of starter Jeff
Street and Jason Marquis im- Niemann from the farm system was one of the few
proved the Rockies' fortunes highlights.
by 4.6 games. The problem Acquisitions (0.1). Trade losses (-2.3): Kazmir -
was that O'Dowd had to give talent to get talent, so 1.1, Jackson -1.8. Signed/re-signed (0.5): Wheeler
the trade or sale losses of players such as Matt 1.2, Burrell -1.7. Free agents lost (-0.6). Rookies
Holliday and Jeff Baker reduced O'Dowd's net trade (0.5): Niemann 1.1.
impact on the team by half. The Rockies would have
been better off if O'Dowd approached free agency 12. Tony Reagins (LAA), -2.2. (22 players). Only 22
more passively. The loss of six players, notably flop players circulated in or out of Anaheim in 2009, the
Willie Tavares, helped far more than the ten generally fewest of any big league team. So relaxed an operation
unproductive replacements O'Dowd signed . O'Dowd did Reagins run that Scott Kazmir, picked up from
tried seven rookies, none o f them contributors.
Tampa Bay for the pennant push, was the only big
Acquisitions (4.6): Street 1.6, Marquis 1.1, Betan- leaguer traded into or out of town between October of
court 1.1, Gonzalez 1.0 . Trade losses (-2.3): \ 2008 and October of 2009. For new blood, Reagins
Baker -1.2, Holliday -1.4. Signed/re-signed (-2.6): largely relied on youngsters, and as is often the case
Rincon -1.4. Free agents lost (2.4): Taveras 2.3. with farm systems those kids failed him. The net cost
Rookies (-1.2).
to the Angels of the 14 first-year players was 4.6
games; only Cleveland and San Diego took harder
10. Walt Jocketty (Cin), -1.2 (40 players). Twice dur- hits. Not counting Nick Adenhart, killed in a car crash
ing his 13-season tenure with the Cardinals, Jocketty following his first appearance of the season, Reagins
ranked as the most effective general manager in base- used nine different first-year pitchers, and not a single
ball. On two other occasions he was most effective in one produced a positive rating. The collective damage
the National League. But he has found the going was 23 starts, 88 relief appearances and -4.4 games in
tougher since coming to Cincinnati as an in-season the standings.
replacement for Wayne Krivsky in 2008. What Jock- Acquisitions (1.1): Kazmir 1.1. Trade losses:
etty accomplished in 2009 largely qualified as addition None. Signed/re-signed (3.1): Abreu 1.5. Free
by subtraction. He removed 14 players from the Reds' agents lost (-1.8): Teixeira -1.6. Rookies (-4.6):
payroll, either by trade, sale or expiration of contract, Bell -1.4.
and only three of those 14 helped their new teams.
Jocketty had a tougher time attracting actual talent to
Cincinnati, and those failure turned his overall ranking
negative. Of the 25 players he either acquired, pur-
(Continued on page 27)
26
Rating the GMs (Continued from page 26)
agents, his biggest gamble ­ Jason Giambi for one
season ­ costing Oakland 1.4 games. At least Beane's
13. Doug Melvin (Mil), -2.3 (36 players). The pickups churn was significant. Of the 45 players he traded,
of Casey McGehee and Felipe Lopez, both compara- traded for, purchased, sold, signed, re-signed or pro-
tive steals, helped Melvin fashion the second best moted, 14 moved their new team's performance nee-
score among all GMs in acquiring players via trades or dle by at least a game.
sales. Little else went right for Melvin, notably the Acquisitions (1.4): Breslow 1.9, Wuertz 1.4,
money-driven departure of C.C. Sabathia via free Holliday 1.1, Hairston -1.2, Mortensen -1.8. Trade
agency. That single loss cost the Brewers nearly three losses (-4.5): Gonzalez -1.0, Holliday -1.4, Street
games in the standings, and is the reason why -1.6. Signed/re-signed (-1.9): Giambi -1.4. Free
Melvin's overall score skewed negative in 2009.
agents lost (2.3): DiNardo 1.4. Rookies (-0.2):
Acquisitions (2.1): McGehee 1.2, Lopez 1.2. Trade Bailey 3.8, Mazzaro -1.3, Marshall -1.4, Gonzalez
losses (0.3). Signed/re-signed (-1.9): Hoffman -1.5.
2.8, Counsell 2.1, Burns -2.5, Looper -2.6. Free
agents lost (-1.8): Sabathia -2.9. Rookies (-1.0). 16. Jack Zduriencik (Sea), -4.1 (40 players). As if of-
ten the case with first-year GMs, Zduriencik posted
14. John Mozielak (Stl), -2.3 (33 players). Mozeliak unremarkable numbers that would have been worse
benefits from a strong nucleus ­ that would be Albert but for the opportunity to pawn off under-achievers on
Pujols ­ that allows him to keep the Cardinals in con- others. He dealt away 11 members of the roster he in-
tention despite run-of-the-mill front office perform- herited, and with the notable exception of Luis Val-
ance. So it was in 2009. Duly not- buena (to Cleveland) the departures were painless.
ing the acquisition of Matt Letting Raul Ibanez go via free agency was, short-
Holliday, it was Mozeliak's only term anyway, a bigger mistake. Among nearly 20 arri-
move of positive consequence. vals, the gem was David Aardsma, but the value he
His farm system proved particu- brought was more than offset by the damage done
larly problematic: Mozeliak called jointly by Ronnie Cedeno and later Jack Wilson.
on 15 youngsters ­ among them Acquisitions (-2.5): Aardsma 2.9, Wilson -1.0,
heralded Colby Rasmus -- but Cedeno -2.2. Trade losses (2.2): Valbuena -1.0.
only two yielded positive value Signed/re-signed (-0.8). Free agents lost (-1.2):
and they collectively cost his team 4.4 games in the Ibanez -1.4. Rookies (-1.8): Saunders -1.0, Jaku-
standings. Well, if you have Albert, you can survive a bauska -1.1 .
few mistakes.
Acquisitions (1.1): Holliday 1.4. Trade losses 17. Andy McPhail (Bal), -4.3 (47 players). McPhail
(0.0). Signed/re-signed (0.2): Miller 1.0. Free came up negative in every category that involved ob-
agents lost (0.8): Miles 1.6. Rookies (-4.4): Stav- taining players, but rated positively in every category
inhova -1.0, Rasmus -1.7.
that involved getting rid of players. In other words, he
was a junk dealer. In 2009, a total of 47 players either
15. Billy Beane (Oak), -2.9 (45 players). The most fa- arrived in or departed from Baltimore, more than any
mous general manager in America suffered through big league franchise except the Padres. Barely a third
the third-worst season of his 11-year tenure during of those generated positive value for their team, and
2009. The problem was a recurring one: The need to just two generated value in excess of 1.0 games. That
trade talent before losing it to free agency. Beane kind of churn without result is the mark of a team
made deals that sent eight A's to new locations prior lacking traction. Among players brought in by
to and during 2009, and six of those eight ­ notably McPhail, flops were everywhere: Rich Hill from Chi-
including Huston Street and Matt Holliday -- rewarded cago, Roberto Andino from Florida, Adam Eaton from
their new teams with positive contributions. Purely Philadelphia, Ty Wigginton from Houston, and Jason
considering talent provided in trades, only Kenny Wil- Berken from the farm.
liams on Chicago's South Side was more generous. Acquisitions (-2.5): Hill -1.6, Andino -1.1. Trade
Beane got some ability in return, notably the afore- losses (2.5): Burres 1.1, Freel 1.0, Huff 1.0.
mentioned Holliday, Craig Breslow and Michael Signed/re-signed (-3.6): Wigginton -1.8, Eaton -
Wuertz. Beane was also a net loser in signing free
(Continued on page 28)
27
Rating the GMs (Continued from page 27)
Breslow -1.9. Signed/re-signed (-1.2): Punto -1.0.
Free agents lost (-1.3): Everett 1.4, Jones -2.3.
2.1. Free agents lost (1.7): Cabrera 1.5, Millar 1.1, Rookies (-2.2): Swarzak -1.7.
Castro -1.2. Rookies (-2.4): Bergesen 1.5, Berken
-2.9.
20. J.P. Ricciardi (Tor), -5.3 (24 players). Ricciardi
operated a relatively quiet, almost build-in-place sys-
18. Kenny Williams (CWS), -4.5 (38 players). In tem in 2009. Just two dozen players moved from or to
2009, the Chicago White Sox farm system made a lar- the Blue Jays, with Houston the fewest of any team
ger contribution to their major league roster than any other than the Angels. The most impactful decision
club in the majors. Unfortunately for Williams, farm was the one that gave rookie Scott Richmond 24 starts
system are notoriously tin places when A.J. Burnett left for New York via free agency.
to turn for quick fixes, and that Richmond responded with a 5.52 ERA, and that Rich-
was again the case last year. The mond-for-Burnett switch set the Jays back 2.7 games.
nine rookies he brought up ­ use- But beyond that nothing much occurred in Toronto,
ful players like Gordon Beckham unless you count the signing of journeyman Kevin
and Chris Getz ­ nonetheless Millar as significant. As with many teams, it may be
helped Chicago by just 1.4 fairer to judge Ricciardi's moves over the long haul. If
games in the standings, an unre- Richmond or lightly used Brian Burres eventually
markable contribution in a sea- pays off, then the short-term price Ricciardi paid in
son during which rookies everywhere performed mod- 2009 might be worth it.
estly. And when he dealt with veterans, things really Acquisitions (-1.6): Burres -1.1. Trade losses
turned sour for Williams. Of seven free agents brought (1.7): Rios 1.6. Signed/re-signed (-0.4): Millar -
to the South Side, Freddie Garcia's 0.4 score was best. 1.1. Free agents lost (-1.8): Burnett -1.0. Rookies
Williams did land Jake Peavy (1.2) by trade, but that (-3.2): Richmond -1.7.
came late and only offset the negative impact of hav-
ing taken on Brent Lillibridge. Williams added 15 21. Theo Epstein (Bos), -5.4 (44 players). The two
players with big league experience to the Sox during world championships he brought to Boston have
2009, and two-thirds of them hurt the team. He traded masked Epstein's periodic failures as an acquirer of
away eight, and five helped their new teams, notably talent. But his standing in the bottom third of GMs is
including Javier Vazquez in Atlanta and Steve not a freakish occurrence: Epstein ranked lower in
Swisher in New York.
both 2005 and 2006, and his career short-term score is
Acquisitions (-1.4): Peavy 1.2, Lillibridge -1.3. on the order of a dozen games to the bad. Perhaps it's
Trade losses (-4.3). Signed/re-signed (-1.1). Free simply a case of big teams failing big. Epstein pursued
agents lost (0.9): Anderson 1.2, Swisher -1.3, free agents Brad Penny, John Smoltz and Junichi Ta-
Vazquez -3.9. Rookies (1.4).
zawa, and all three moves cratered on him, collecting
costing the Red Sox 4.5 games. Epstein's reputation
19. Bill Smith (Min), -4.6 (30 players). Coming off a - might have taken a bigger hit but for two decisions
5.2 score in his 2008 rookie GM year, Smith's second that paid off. The trade for Ramon Ramirez gave the
season with the Twins can be read as a slight improve- Red Sox a reliable bullpen arm, and the re-signing of
ment. But facing perennial cash deficiencies, Twins' Kevin Youkilis for four seasons locked down a player
GMs have to consistently work the margins to actually who added 3.5 games to Boston's stature last year
help the team, and Smith has not yet demonstrated that alone. The farm system yielded a lot of bodies, most
he can do that. The Twins made the post-season in of them mildly toxic in the short-term, and none of
2009 despite Smith, not because of him. A modest them suggesting a future along the lines of Dustin
success at acquiring players from other teams, Smith Pedroia or Jonathan Papelbon.
mis-judged the free agent market (principally by re- Acquisitions (1.5): Ramirez 1.7. Trade losses (-
signing Nick Punto for two seasons), and got mixed, 4.4): Aardsma -2.9. Signed/re-signed (-0.8): You-
largely unproductive efforts from Minnesota's farm kilis 3.5, Saito 1.4, Tazawa -1.2, Penny -1.4,
system. The losses of Craig Breslow (by waiver) and Smoltz -1.9. Free agents lost (0.4): Bard 2.1, Ross
Garrett Jones (by release) can only be looked on as -2.1. Rookies (-2.1).
unforced errors.
Acquisitions (0.9): Rauch 1.0. Trade losses (-0.8):
(Continued on page 29)
28
Rating the GMs (Continued from page 28)
(-1.0). Rookies (-2.5): Martinez -1.4.
22. Jim Bowden (Was), -6.0 (45 players). Hand it to 25. Dayton Moore (KC), -8.0 (32 players). You think
Jim Bowden: He tried. Bowden dealt for eight players you've got a tough job? In chronically under-financed
who impacted the major league roster in 2009, signed Kansas City, no general manager has made a positive
or re-signed 16 more, and promoted 11 from the Nats' impact on the Royals since Herk Robinson in 1996.
farm system. There wasn't much improvement in Dayton Moore came to K.C. as a mid-season replace-
Washington in 2009, but there was a lot of churn. ment for Allard Baird three seasons ago with an At-
Bowden's big stumbling block turned out to be his lanta pedigree, which means he trained at the feet of
various forays into the free agent market. The signings former Royals GM John Schuerholz. But he has found
of Daniel Cabrera and Josh Bard both proved to be big that the personnel moves are tougher when they don't
blunders, and collectively the 16 signees cost the Nats involve re-signing Maddux, Glavine and Smoltz. In
four games in the standings. Only the padres, Royals 2009, Moore acquired seven players for the Royals via
and Mets did worse on the open market in 2009.
deals with other GMs, and all seven produced negative
Acquisitions (1.00): Morgan 1.5, Willingham 1.2. impact. His -4.3 rating for players acquired in deals
Trade losses (-0.1) . Signed/re-signed (-4.0): ranked second worst in the majors, ahead of only Neal
Dunn 1.9, Tavares -1.0, Cabrera -1.3, Bard -2.1. Huntington. He signed or re-signed 13 players, and
Free agents lost (-0.7). Rookies (-3.6): Mock -1.9. none of those 13 made a positive contribution. At 6.3
games to the bad, Moore again stood second to the
23. Ed Wade (Hou), -6.0. (24 players) Following eight bottom, ahead of only Kevin Towers.
unremarkable years as GM in Philadelphia and a two- Acquisitions (-4.3): Jacobs -1.7. Trade losses (1.5).
season partial exile, Wade landed the Houston job late Signed/re-signed (-6.3): DiNardo -1.4, Ponson -
in 2007. He has been for the Astros what he was for 1.8. Free agents lost (1.4). Rookies (-0.3).
the Phillies ­ so-so. Wade particularly hurt the Astros
by signing used-up veterans Mike Hampton and Russ 26. Josh Byrnes (Ari), -8.1 (34 players). Byrnes has
Ortiz to fill two-fifths of the starting staff, and when now completed four seasons as GM of the Diamond-
that failed by asking rookie Felipe Paulino to step in. backs, and his rating has steadily declined. He arrived
Those three moves alone cost the Astros five and one- in 2006 as something of a boy genius, compiling a 4.9
half games in the standings. View it as a flaw or an cumulative score. That fell to 0.8 in 2007, and went
asset, but Wade was one of the most cautious GMs in negative (to -2.8) in 2008 ...when, for the record the
baseball. His various 2009 moves involved 24 big D-Backs missed the playoffs by just two games. If
league players, second fewest (with Ricciardi) to Tony Byrnes values job security, he needs to reverse that
Reagins.
trend next year. He has plenty of places to start, for
Acquisitions (-0.5): Coste -1.2. Trade losses (- Byrnes received low marks in deals with other GMS,
0.2) . Signed/re-signed (-3.9): Hawkins 1.6, Ortiz in deals directly with players, and in his farm system
-1,1., Hampton -1.4. Free agents lost (2.8): Wig- production in 2009. He was the only GM in the majors
ginton 1.8, Loretta 1. Rookies (-4.2): Paulino -2.9. in 2009 with negative scores in all five GM perform-
ance categories. Byrnes moves were responsible for
24. Brian Sabean (SF), -6.1 (32 players). Since he's the presence of two dozen D-Backs in 2009, but only
been the Giants' GM since the end of 1996, you'd five of those two dozen yielded positive impact, none
think Sabean would be tough to take advantage of in a higher than 0.6 games.
head-to-head deal. In fact, the players Sabean acquired Acquisitions (-2.0): Allen -1.1. Trade losses (-2.8):
in trades cost the Giants one game in the standings in Rauch -1.0, Lopez -1.2. Signed/re-signed (-1.5).
2009, and the players he gave away cost them three Free agents lost (-0.3). Rookies (-1.5): Parra -1.2.
more. He had no more luck in the farm system. The
Giants brought up a dozen new hands for at least a 27. Omar Minaya (NYM), -8.7 (39 players). Remem-
stretch in 2009, but only three produced positive ber when Omar Minaya was a wunderkind stolen by
value, and the net of that positive value was barely the Mets from his Montreal internship. That was yes-
half a game.
terday. Minaya in 2009 was forced to rely on a non-
Acquisitions (-0.9). Trade losses (-3.0): Misch - productive farm system when his well-publicized free
1.0, Davis -1.4. Signed/re-signed (1.3): Affeldt agency moves backfired. A three-year deal for Oliver
1.1, Johnson -1.0, Renteria -2.8. Free agents lost
(Continued on page 30)
29
Rating the GMs (Continued from page 29)
the rookies he largely relied on to replace those lost
veterans cost another 5.3 games. You can't say Tow-
Perez? Not so much. Felix Rodriguez (and J.J. Putz ers didn't try. His manipulations involved a total of 53
via trade) for the pen? With that rotation, who needs a players who saw big league time during 2009, eight
pen? Livan Hernandez? Too retro. The free agents more than any other GM.
cost the Mets 5.3 games. The rookie fixes cost an ad- Acquisitions (1.7): Cabrera 1.5. Trade losses (-0.8)
ditional 2.8 games. Bobby Parnell in any pitching ca- S. Hairston 1.2, Gerut -1.2. Signed/re-signed (-
pacity at all? Someday, perhaps...but not yet.
9.3): Sanchez -1.1, Alfonzo -1.2, Eckstein -1.8,
Acquisitions (-0.5): Misch 1.0. Trade losses (0.0). Gaudin -2.4. Free agents lost (-2.5): Hoffman -
Signed/re-signed (-3.9): Redding -1.0, Perez -1.5, 2.8. Rookies (-5.3): Latos -1.1, Geer -1.7, Carillo -
Hernandez -1.7. Free agents lost (-0.1). Rookies 1.7.
(-4.2): Parnell -1.4.
Bill Felber runs the baseball website billfelber.com.
28. Neal Huntington (Pit), -9.2 (27 players). Hunting- He is the author of "The Book on the ton tried to re-make the Pirates through deals with Book," published in 2005 by Thomas Dunne Books . other GMs involving players not yet free-agent eligi- Email: [email protected]
ble. The result was disaster. The players he acquired in
those trades cost Pittsburgh 6.3 games in the National League standings. To obtain those ne'er-do-wells, he
From the Editor
traded away another 2.4 games worth of talent, collectively making Huntington the majors' biggest trading patsy. The low-budget Pirates didn't have much of a free-agent game although the bargain-basement pickup of Garrett Jones stood out. Nate McCutcheon's callup by itself helped make Pittsburgh one of just three teams whose first-year classes rated +1.0- or better in 2009. Acquisitions (-6.3): Jaramillo -1.1, Young -1.1, Vasquez -1.2, Hart -2.4. Trade losses (-2.4) LaRoche -1.1, Morgan -1.5. Signed/re-signed (-0.7): Jones 2.3, Vazquez -1.1. Free agents lost (-0.9): Belisario -1.2. Rookies (1.1): McCutcheon 1.6.
This issue of Outside the Lines, the newsletter of SABR's Business of Baseball Committee, contains four articles on a range of issues. Experienced antitrust litigator Larry Boes explores the case of American Needle, Inc. V. NFL et al. currently before the U.S. Supreme Court (which now includes a SABR author) and awaiting decision. Bill Gilbert and Tim Darley bring their experience in baseball arbitration to a wrapup of 2010 activity in that field. Joe Marren explores the long history of baseball segregation as a business decision. Finally, Bill Felber rank General Managers for their 2009 short-tern successes, part of his three-part ranking system.
29. Mark Shapiro (Cle), -10.4 (44 players). Isn't time running short for Shapiro? His occasional fits of brilliance since arriving as a GM prior to the 2002 season have been over-shadowed by four consecutive sub-par seasons. In 2009, Shapiro leaned heavily on the farm system, and it did him in. Eight rookies saw action in Cleveland, yielding a cumulative -5.0 games that ranked ahead of only the Padres. His attempts to patch
OTL depends entirely on our members for submissions. There was no Fall 2009 issue because we had no offerings. Our view of the Business of Baseball is that anything that happens outside the lines is game. We are interested in high-quality research and writing. If you have an idea and want to see if we are interested, just email me at [email protected]
weaknesses in trades or through free agency tended to net guys like Carl Pavano. Acquisitions (-2.0): Valbuena 1.0, Carrasco -1.5. Trade losses (-1.5): Betancourt -1.1. Signed/resigned (-2.8): Pavano -1.7 . Free agents lost (0.9).
The next issue will go out in June before the Atlanta, so our deadline for articles is June 1. The earlier you get things to me the better, in case I want to suggest changes or request clarifications.
Rookies (-5.0): Gimenez -1.5, Huff -2.1.
30. Kevin Towers (SD), -16.2 (53 players). On the job since 1995, Kevin Towers was the dean of major league GMs when he was fired following the conclusion of the 2009 season. Financially handicapped by his owners' divorce, Towers' free agent decisions set the Padres back by nearly 12 games during 2009, and
John Ruoff Co-Chair Business of Baseball Committee Editor, Outside the Lines 30
Winter 2010
Outside the Lines
Business of Baseball Committee
The Business of Baseball Committee co-chairs are Steve Weingarden ([email protected]) and John Ruoff ([email protected]). Ruoff edits Outside The Lines. The committee's website is at http:\\www.businessofbaseball.com. You should stay in touch with the site as we improve the look and add content. The Committee's discussion group, BusinessofBaseball, is on YahooGroups. If you are a member of the Committee and want to join, go to http://sports.groups.yahoo.com/group/BusinessofBaseball/ or send an e-mail to Business of [email protected]
Thank Yous to our authors Larry Boes, Bill Gilbert, Tim Darley, Joe Marren and Bill Felber Outside the Lines is published quarterly. Contributions should be sent to [email protected] © Copyright 2010 by the Society for American Baseball Research. By-lined articles are copyrighted by their authors Society for American Baseball Research Business of Baseball Committee 812 Huron Rd E #719 Cleveland, OH 44115 www.sabr.org [email protected]
31

J Marren

File: the-business-of-segregation-in-baseball.pdf
Author: J Marren
Author: John C. Ruoff
Published: Sun Mar 7 08:32:25 2010
Pages: 31
File size: 0.62 Mb


for Fingerprints, 4 pages, 0.4 Mb

, pages, 0 Mb
Copyright © 2018 doc.uments.com