Background

Phase 1 wantlist hit cleared. The immediate doctrinal predecessor to Flood v. Kuhn (1972, in this archive): the Second Circuit teed up exactly the issue the Supreme Court took up two years later, and the SCOTUS in Flood substantively echoed Friendly's posture — acknowledging the anomaly, citing the same stare decisis / congressional-acquiescence rationale, and declining to overrule. The case is also a labor-side companion to the umpire-organizing history: AL President Joe Cronin fired Salerno and Valentine in September 1968 in what they alleged was retaliation for their organizing work; the Major League Umpires Association was formally certified by the NLRB in 1970 (the same year the Second Circuit ruled here); by 1979 the umpires had won their first-ever collective bargaining agreement and were striking for higher wages. Caption note: the case caption in Justia, CourtListener, and ilide/Scribd reprints all contain the West reporter's original typo 'AMERICAN LEAGUE OF PROFESSIONAL BASEBELL CLUBS' (with the misspelling 'BASEBELL' instead of 'BASEBALL'). The Justia rendering corrects the obvious typo only in its display title; the inline opinion text in all three reprints preserves the original.

Key provisions

• Holding on antitrust injury: 'Wrongful discharge of an employee does not become an antitrust violation simply because the employer is a monopolist; the private right of action is conferred only for an injury by reason of anything forbidden in the antitrust laws, 15 U.S.C. § 15.' Citing Molinas v. National Basketball Ass'n, 190 F. Supp. 241, 243 (S.D.N.Y. 1961) (Kaufman, J.).
• Holding on NLRB primary jurisdiction: With the umpires' discriminatory-discharge claim already before the NLRB, the federal court would 'have the further question whether a federal court could consider it once the NLRB has begun proceedings.' Citing Local Union No. 189 v. Jewel Tea Co., 381 U.S. 676 (1965), and San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959).
• Holding on antitrust exemption: Federal Baseball Club v. National League, 259 U.S. 200 (1922), and Toolson v. New York Yankees, 346 U.S. 356 (1953), remain controlling and only the Supreme Court can overrule its own precedent. Cf. Green v. Board of Elections, 380 F.2d 445, 448 (2 Cir. 1967).
• Famous candid acknowledgment: 'We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes' happiest days, that the rationale of Toolson is extremely dubious and that, to use the Supreme Court's own adjectives, the distinction between baseball and other professional sports is unrealistic, inconsistent and illogical. ... While we should not fall out of our chairs with surprise at the news that Federal Baseball and Toolson had been overruled, we are not at all certain the Court is ready to give them a happy despatch.' (Internal citations omitted.) Citing Radovich v. National Football League, 352 U.S. 445, 452 (1957), and Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235 (1970) (decided June 1, 1970).
• Disposition: District court dismissal affirmed.

Notable provisions

Plaintiffs, former umpires in the American League of Professional Baseball Clubs, were discharged by the president of the League. Although he announced that this was for incompetence, plaintiffs claim 'the true and only reason' was their endeavor to organize the American League umpires for collective bargaining.— 429 F.2d 1003, 1004 (2d Cir. 1970)

Wrongful discharge of an employee does not become an antitrust violation simply because the employer is a monopolist; the private right of action is conferred only for an injury 'by reason of anything forbidden in the antitrust laws,' 15 U.S.C. § 15.— 429 F.2d 1003, 1005 (2d Cir. 1970)

We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes' happiest days, that the rationale of Toolson is extremely dubious and that, to use the Supreme Court's own adjectives, the distinction between baseball and other professional sports is 'unrealistic,' 'inconsistent' and 'illogical.'— 429 F.2d 1003, 1005 (2d Cir. 1970)

While we should not fall out of our chairs with surprise at the news that Federal Baseball and Toolson had been overruled, we are not at all certain the Court is ready to give them a happy despatch.— 429 F.2d 1003, 1005 (2d Cir. 1970)

Further context

Salerno v. American League of Professional Baseball Clubs (2d Cir. 1970)

The Second Circuit's affirmance of the dismissal of an antitrust suit brought by two fired American League umpires — Alexander Salerno and William Valentine — against Commissioner Bowie Kuhn. Decided July 13, 1970. Phase 1 wantlist hit cleared. Verified via two independent sources (Justia + CourtListener).

The story

September 1968. American League President Joe Cronin fires umpires Salerno and Valentine, announcing the discharge was for incompetence. The umpires say the real reason was their attempt to organize American League umpires for collective bargaining.

The umpires sue on two tracks: an NLRB unfair-labor-practice charge (which would result in a March 26, 1970 NLRB complaint), and a federal antitrust suit in the Southern District of New York under the Sherman and Clayton Acts. Of the four named defendants, only Commissioner Kuhn is served. The district court dismisses; the umpires appeal.

July 13, 1970. The Second Circuit (Friendly, C.J., writing for Waterman, Friendly, Hays) affirms — on three independently sufficient grounds.

Why Salerno matters

Two things.

First, the antitrust-exemption holding is the immediate predecessor to Flood v. Kuhn. Curt Flood had filed his SDNY antitrust complaint in January 1970, six months before Salerno was decided. Flood would lose at the district court (Judge Cooper, S.D.N.Y., 1970), then lose at the Second Circuit (April 7, 1971, panel of Waterman, Moore, and Feinberg, JJ., with Waterman writing for the panel and Moore concurring — Judge Friendly was not on the Flood 2d Cir. panel, though he had been on this Salerno panel a year earlier), then lose at the Supreme Court (June 19, 1972, Blackmun, J.). The doctrinal posture the Second Circuit adopts in Salerno — open criticism of the exemption, deference to SCOTUS — is essentially the same one the Supreme Court adopts in Flood two years later, and the same one the Waterman panel adopts in the Flood 2d Cir. ruling itself.

Second, Judge Friendly's concluding paragraph is one of the most candid acknowledgments by a sitting appellate court that a binding precedent is doctrinally indefensible. Federal Baseball was "not one of Mr. Justice Holmes' happiest days." Toolson's rationale is "extremely dubious." The baseball-vs.-other-sports distinction is — quoting the Supreme Court itself in Radovich — "unrealistic, inconsistent and illogical." And yet: affirmed.

Verification status

verified — two independent sources (Justia print-to-PDF + CourtListener reprint), both display the same caption, citation (429 F.2d 1003), date (July 13, 1970), panel (Waterman, Friendly, Hays), docket (No. 818, Docket 34653), and substantive holding text. The ilide.info / Scribd reprint is held as supplementary but not counted as a third independent source.

Related documents in the archive

• 1922-05-29_caselaw_federal-baseball-club-v-national-league.md — the 1922 Supreme Court ruling Salerno declines to predict will be overruled.
• 1953-11-09_caselaw_toolson-v-new-york-yankees.md — the 1953 reaffirmance Friendly calls "extremely dubious."
• 1972-06-19_caselaw_flood-v-kuhn.md — the 1972 SCOTUS ruling that effectively followed Salerno's posture two years later.
• 1949-02-09_caselaw_gardella-v-chandler-2d-cir.md — the 1949 Second Circuit predecessor (Frank, J., concurring with the "industrial peonage" framing) that Friendly distinguishes en passant.

Related documents

Related documents

Federal Baseball Club v. National League, Toolson v. New York Yankees, Flood v. Kuhn, Gardella v. Chandler (2d Cir. 1949)

Source provenance

• Primary source
• Wayback Machine archive
• Free Law Project / CourtListener