Safe--Kind of

Baseball fans were mystified. It was rather like an umpire with one thumb hooked in the air and the other hand spread out, saying, "You probably should be out, but you're safe, I think, kind of." For the third time in 50 years, the Supreme Court was considering major league baseball's exemption from the antitrust laws. In 1922 Oliver Wendell Holmes had stated for a unanimous court that baseball was not engaged in interstate commerce and therefore was not covered by antitrust regulations. Last week Justice Harry Blackmun held that baseball is, of course, engaged in interstate commerce in the modern meaning of that term, but that the court was bound by its earlier decision. The score was 5 to 3.

All the Justices agreed that Holmes' decision, which created a unique status for baseball among professional sports, was a poor one. Justice William O. Douglas, one of the dissenters, called it "a derelict in the stream of law." Said Justice Thurgood Marshall: "We do not lightly overrule our prior constructions of federal statutes, but when our errors deny substantial federal rights... we must admit our error and correct it." The rights involved were those of former St. Louis Cardinal Outfielder Curt Flood. He had charged that baseball's "reserve clause," which binds all players to the teams that own their contracts, prevented him from freely marketing his services.

But Blackmun and the majority clung to Holmes' precedent. Said Blackmun: "There is merit in consistency, even though some might claim that beneath that consistency is a layer of inconsistency." The original ruling, he observed, had been upheld only nine years ago in a finding that "Congress had no intention of including the business of baseball within the federal antitrust laws." If any change is indicated, said Blackmun, "the remedy is for congressional, and not judicial action." Chief Justice Burger agreed and went further to urge, "It is time the Congress acted."

And so the game is not yet over. Congress, which has several baseball bills languishing in committee, may finally bestir itself to deal with the obvious inequities in the reserve-clause system. If it does not, the players seem determined to gain concessions from the owners, either through collective bargaining before the start of next season or, if necessary, a strike. If another strike is indeed called, it might well last longer than the walkout over pensions that delayed the start of the current baseball season by 13 days.

As for Flood, 34, he is now living in retirement somewhere in Europe.

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