Senator John McCain (R-Ariz.) has issued a threat about testing for steroid use in professional baseball:
“Major league baseball players and owners should meet immediately to enact the standards that apply to the minor leagues, and if they don’t, I will have to introduce legislation that says professional sports will have minimum standards for testing,” McCain said after returning from a European trip late yesterday. “I’ll give them until January, and then I’ll introduce legislation.”
Where in Article I, Section 8 of the United States Constitution does the good Senator find that power?
Oh no not in that section… it’s right after the part that very clearly states “Congress shall have the power to enact legislation to track campaign donations, prohibit commericials when they don’t fall into what shall be known as the ‘friendly and lovable campaign financing’ section of the tax code, and furthermore do whatever is necessary to ensure that certain monies are durable, hard, i.e. non-soft, as it should be.”
Wait…we have a constitution? When did that happen?
While I agree that government should have nothing to do with regulating the rules of baseball, Major League Baseball shares much of the blame in this case. Unlike other professional sports, MLB received a monopoly grant that allows it to be the only “professional” baseball association in the U.S. by fiat. This is not true with other professional sports like football. In administrative law terms, this monopoly grant allows Congress to “occupy the field” and have sole regulatory authority over MLB. Again, I’m not supporting regulation here, but when you make a deal with the devil…
Correction:
Dr. Palmer, a more careful thinker than myself, has asked me to elaborate on my earlier post. Let me begin with a mea culpa. After discussing this matter with friends of mine, who actually took sports law in law school unlike me, it appears that Congress has not given MLB an affirmative monopoly grant. Rather, MLB has a nonstatutory (judicial) exemption from the Sherman Antitrust Act, such that it cannot be sued under the act for engaging in “anticompetitive/monopolistic” behavior. The Supreme Court ruled in 1922 that MLB could not be sued under antitrust after a rival league tried to do just that. Other professional sports leagues have attempted to get this sort of protection to no avail; the Court has not extended this exemption to the NFL, NHL, NBA, MLS, etc. So, while MLS is a rent-seeker, they used the courts rather than Congress to gain this protection. Thus Congress really has no authority to regulate baseball, except for the broad-based, unconstituional authority it claims to regulate every other area of our lives.
On a side note, my original confusion developed as a result of differing views on what monopoly means. Being a libertarian, I think that government barriers to entry are the only ones that matter, i.e., legally-protected/-enforced monopolies are the only monopolies that can cause long-term harm. My friends, however, are of the Sherman opinion of monopolies and thus think that Congress can regulate any large business that appears to be doing well.
Baseball has a long and fascinating history; and it is interesting that up until the 1922 decision, there were several leagues competing with each other while since then, there have not been any attempts to start up alternative professional baseball leagues. This may be partly due to MLB’s antitrust exemptions. Certainly, serious efforts have been made in other sports to start alternative professional leagues, but usually without much success–XFL anyone?
The following link is a report that the House prepared while unsuccessfully attempting to eliminate MLB’s antitrust exemptions: http://www.house.gov/judiciary_democrats/bball103.htm
And two others detailing the robust competition and disputes between leagues and teams during the early days of the game:
http://www.hup.harvard.edu/educators/pdf/weilex.pdf
http://www.dickiethon.com/~omnibus/birth_part1.htm
Mr. Pearson:
The other professional sports leagues actually do enjoy a limited antitrust exemption with respect to television broadcasting contracts. Prior to 1960, it was believed that a league that negotiated a single national television contract for its member clubs violated the Sherman Act. Congress enacted a statutory exemption during the Kennedy administration.
Also, the NFL had to seek an exemption so that regulators wouldn’t prevent the league’s 1970 merger with the AFL. In fact, as one condition of that approval, Congress forbade the NFL from televising games on Fridays and Saturdays during the college football season (the NCAA and several southern congressmen insisted on this provision.)
One other point — professional sports franchises do enjoy a quasi-monopoly status (in the libertarian sense) where local governments foot the bill for stadium construction. With such advantages, it’s difficult for new leagues to construct facilities and compete in cities with existing teams.