HISTORIC ZOMBIES: Before Zombies or Zombie, “Impotent Zombi”: Federal Baseball
Judge Frank coined the phrase “impotent zombi” in the 1949 opinion, Gardella v. Chandler, to describe the case law from Federal Baseball Club v. National League, that has still never been officially overturned but already in 1949, the underlying legal reasoning was no longer valid. These cases are about the application of Sherman Antitrust laws to the ‘reserve clause‘ in Major League Baseball.
GARDELLA v. CHANDLER,
UNITED STATES COURT OF APPEALS SECOND CIRCUIT
172 F.2d 402
decided February 9, 1949,
No one can treat as frivolous the argument that the Supreme Court’s recent decisions have completely destroyed the vitality of Federal Baseball Club v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, 26 A.L.R. 357, decided twenty-seven years ago, and have left that case but an impotent zombi. Nevertheless, it seems best that this court should not so hold. However, in Ring v. Spina, 148 F.2d 647, 651, 160 A.L.R. 371, referring to that case and another similar case, 2 this court said that, because of ‘the steadily expanding content of the phrase ‘interstate commerce’ in recent years; * * * there is no longer occasion for applying these earlier cases beyond their exact facts. For reasons stated later, I think that, on its facts, we can properly distinguish the suit now before us from the Federal Baseball case.
The footnote further explains the reasoning of why Federal Baseball was considered by Judge Frank (and joined in judgment by Learned Hand) an “impotent zombi”
FN1 I reach that conclusion somewhat hesitantly. For, while the Supreme Court has never explicitly overruled the Federal Baseball Club case, it has overruled the precedents upon which that decision was based; and the concept of commerce has changed enough in the last two decades so that, if that case were before the Supreme Court de novo, it seems very likely that the Court would decide the other way. This court cannot, of course, tell the Supreme Court that it was once wrong. But ‘one should not wait for formal retraction in the face of changes plainly foreshadowed;’ this court’s duty is ‘to divine, as best it can, what would be the event of the appeal in the case before it.’ L. Hand, C.J., dissenting in Spector Motor Service Co. v. Walsh, 2 Cir., 139 F.2d 809, 823. In Perkins v. Endicott Johnson Corp., 2 Cir., 128 F.2d 208, 217, 218, we said: ‘Legal doctrines, as first enunciated, often prove to be inadequate under the impact of ensuing experience in their practical application. And when a lower court perceives a pronounced new doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be sure, to follow not to resist it.’ In Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 636, we said per L. Hand, J.: ‘In this we recognize ‘a pronounced new doctrinal trend’ which it is our ‘duty, cautiously to be sure, to follow not to resist.”
Contrast, Judge Harrison writing two years later in Toolson v. New York Yankees
If the Federal Baseball Club case is, as Judge Frank intimates an ‘impotent zombi’, I feel that it is not my duty to so find but that the Supreme Court should so declare.
Plaintiff seeks to have this court disregard an adjudication made thirty years ago by the Supreme Court. I am bound by the decision of the Supreme Court. It is not my function to disregard such a decision because it is old. If the Supreme Court was in error in its former opinion or changed conditions warrant a different approach, it should be the court to correct the error. Trial courts in my opinion should not devote their efforts to guessing what reviewing courts may do with prior holdings because of lapse of time or change of personnel in such courts. We are supposed to be living in a land of laws. Stability in law requires respect for the decisions of controlling courts or face chaos.
The words of Judge Chase in the Gardella case seem to me state my position clearly when he said: ‘In dealing with such a unique aggregate as organized baseball and with a decision in respect to it which seems to be directly in point on the facts, we should not be astute in seeking to anticipate that the court which has the power to do so will change that decision. To do so would not only be an unwarranted attempt to usurp the authority of that court but would make its task in general * * more difficult since it would lead to a constant alteration in the lower courts of its decisions on special fact situations in the light of what would appear to be differing cases on different facts.’ (172 F.2d 405.)
Undoubtedly large investments have been made on the strength of Mr. Justice Holmes’ opinion in the Federal Baseball Club case, supra, and now a slight shadow has been placed upon the status of such clubs by the Gardella case, supra, by the opinion of Judge Frank wherein he assumes the role of crystal gazer in attempting to determine in advance that the Supreme Court is going to in effect reverse the Federal Baseball Club case.
It is a matter of common knowledge that the status of organized baseball is the subject of a congressional hearing and it may pass legislation that will be determinative of the issue before this court. I believe it is my clear duty to endeavor to be a judge and should not assume the function of a pseudo legislator. It must be remembered that judicial decisions operate retroactively.
This Toolson decision was affirmed by the US Supreme Court in 1953 – Toolson v. NY Yankees, 346 U.S. 356
In Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922), this Court held that the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws. Congress has had the ruling under consideration but has not seen fit to bring such business under these laws by legislation having prospective effect. The business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation. Without re-examination of the underlying issues, the judgments below are affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.
Therefore, Judge Frank (and Learned Hand) seem to have been wrong. The short Toolson opinion from the Supreme Court makes clear that Federal Baseball was never an impotent zombie after all and has in fact always been good law. This because despite developments in antitrust law, baseball remains special. Under stare decisis the original decision stands and Congress did not act. Again in 1972, Flood v. Kuhn, 407 U.S. 258, Justice Blackmun wrote: “what the Court said in Federal Baseball in 1922 and what it said in Toolson in 1953, we say again here in 1972: the remedy, if any is indicated, is for congressional, and not judicial, action.” Congress still didn’t act, but in 1975 the decision of arbitrator Peter Seitz ended baseball’s reserve clause system and so began free agency in baseball. The Federal Baseball ruling was never overturned and Major League Baseball is not subject to antitrust law. But even in 1957, the Supreme Court would not extend its reasoning to Football. See Radovich v. National Football League – 352 U.S. 445 (1957)
Finally, the “impotent zombi” reappears in 1979, Judge Fletcher’s opinion in
ALLSTATE FIRE INSURANCE COMPANY v. THE UNITED STATES
United States Court of Claims
1979 U.S. Ct. Cl. LEXIS 887
June 7, 1979
Judge Fletcher pays homage to Judge Frank’s phrase but argues that judicial interpretation should avoid creating impotent zombi:
To adopt the Government’s contrary position would seem to me to constitute an improper emasculation of the Continental decision, and reduce it to what the late Judge Jerome Frank once colorfully called “an impotent zombi”. Gardella v. Chandler, 172 F. 2d 402, 409 (2d Cir. 1949). It is not for me to recommend that the court take any such action.
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