[co-author: Stephanie Kozol]*
A bipartisan coalition of 18 state attorneys general (AGs) led by Connecticut AG William Tong has signed an amicus brief urging the U.S. Supreme Court to overrule its 1972 Flood v. Kuhn decision and revoke the immunity from federal and state antitrust laws that the Court has uniquely granted to professional baseball for more than a century.
The issue is a petition for writ of certiorari review submitted to the Court by two independent former minor league baseball franchises, the Tri-City ValleyCats and the Norwich Sea Unicorns, whose relationships with Major League Baseball (MLB) clubs allegedly were terminated as a result of an agreement reached in 2020 between MLB and its clubs limiting minor league affiliations to four affiliates per MLB club. The petitioners sued MLB in the U.S. District Court for the Southern District of New York, which granted MLB’s motion to dismiss the complaint based on its antitrust exemption. The Second Circuit U.S. Court of Appeals affirmed, and the petitioners now are taking their case against the Office of the Commissioner of Baseball to the Supreme Court, which first exempted professional baseball from antitrust laws in 1922 and reaffirmed that position in its Flood v. Kuhn decision 50 years later.
Submitted on October 23, the AGs’ amicus brief asks the Court to grant certiorari to review and overrule Flood v. Kuhn, which the AGs state “was wrongly decided.” The AGs’ brief draws upon principles of federalism, which they argue bar preemption of state antitrust enforcement absent an unmistakable congressional command that has not been issued on the case of MLB. The AGs thus contend that the 1972 decision “should not have preempted state antitrust laws in the name of a ‘uniformity’ that Congress never sought” and describe MLB’s antitrust exemption as “an unconstitutional intrusion into state prerogatives.”
Joining Connecticut on the brief are the states of Arizona, Colorado, Indiana, Kansas, Louisiana, Minnesota, Montana, New Jersey, New Mexico, New York, Tennessee, Vermont, and West Virginia; the Commonwealths of Massachusetts, Pennsylvania, and Virginia; and the District of Columbia.
Why It Matters
The AGs’ amicus brief exemplifies a bipartisan consensus that state AGs possess independent authority and discretion to enforce state and federal antitrust law that should not be constrained by an federal determination short of an act of Congress.
*Senior Government Relations Manager
