Now, it has been announced that in 2013 the Houston Astros will move to the American League, and Major League Baseball will realign into two 15-team leagues, each composed of three divisions of five teams each. For the first time in the 136-year history of Organized Baseball, there will be an odd number of teams in both major leagues, necessitating interleague play throughout the season.

This, it turns out, is not the first time that major league owners have discussed such an arrangement. In November, 1960, having announced the transfer of the “old” Washington Senators to Minneapolis-St. Paul and the award of a new expansion franchise for the Nation’s capital (the “new” Washington Senators), American League president Joe Cronin suggested that the National League immediately add one team in either New York or Houston, and that the two leagues play an interlocking 166 game schedule in 1961.

The circumstances leading up to this proposal were an outgrowth of the rather hasty decision made by the two Major Leagues in the late summer of 1960 to increase the number of teams in the National and American Leagues for the first time since 1900.

The decision to expand was prompted by the threat posed by a planned “third” major league, the Continental League. The Continental League, headed by legendary baseball executive Branch Rickey, had planned to begin play in 1961, but it was dissuaded from entering the field by the promise of the two existing leagues to add four more teams in the near future and another four by the end of the decade of the 1960’s.

The National League was the first to announce its plans to expand, reporting on October 17, 1960, only four days after the most famous World Series game in history, the Pittsburgh Pirates dramatic, bottom of the 9th 10-9 victory over the New York Yankees, that it would add teams in New York City and Houston for the 1962 season.

The above-mentioned “nine team league” proposal turns out to have been a product of the ineptness of the American League’s belated effort to match the expansion plans of the National League. On October 27, ten days after the National League’s expansion announcement, the American League hastily announced that it was adding teams in Minneapolis and Los Angeles, which would begin play in 1961. (The current Senators, as mentioned above, would move to the Twin Cities and a new team would be based in Washington.)

The decision to place a team in the Twin Cities was not controversial at all, but there were a number of problems with the second new team going to Los Angeles. Some owners believed that the “agreement” that had led to the disbandment of the Continental League had included a promise to award expansion franchises to teams from the Continental League, or at least to its cities. (The National League had done this, admitting to membership the ownership groups of the New York and Houston teams from the CL.) Minneapolis was a Continental League city, but the new team went not to the CL owners but to the current owners of the AL’s Washington Senators. Los Angeles, in contrast, had not even been a Continental League city. (The five remaining CL cities were Dallas-Ft. Worth, Atlanta, Toronto, Buffalo, and Denver.)

Moreover, under the Major League agreement entered into by the National and American Leagues, no major league team could be moved into the territory of an existing team without the unanimous agreement of all the owners in both leagues, a rule that in effect gave existing owners an absolute veto over the relocation of any team to their territory.

This meant that the American League could place an expansion team into Los Angeles without gaining the consent of Dodgers owner Walter O’Malley. While the Yankees had agreed not to object to the placement of a new National League team in New York as part of the settlement with the Continental League, the issue of moving a new team to Los Angeles had never been on the table.

Almost immediately, plans for the new Los Angeles team started to go awry, as O’Malley made it quite clear that he was not at all enthusiastic at the idea of a second Major League team in Los Angeles. An ownership group led by Hall-of-Fame outfielder Hank Greenberg was the early front-runner to receive the new Los Angeles franchise, but on November 17, the same day that the new Washington team was awarded to World War II hero Elwood Quesada, the Greenburg group dropped out of the running.

Although Chicago insurance man Charlie Finley immediately placed a bid for the new Los Angeles team, the AL owners began to have second thoughts about the wisdom of going into LA in 1961. Five days later, on November 22, league president Joe Cronin announced a new AL proposal for two 9-team leagues featuring interleague play. As part of the proposal, it would delay the creation of its Los Angeles team until 1962, so there would be only a single team in the City of Angels in 1961. Cronin asked that the National League respond by December 5 (the date of the next National League owners’ meeting).

Although it was not initially announced as part of the proposal, it was subsequently reported that the expectation was that the 9th team in the National League would be Houston, and that the establishment of the second New York team would be held off until 1962 (as originally scheduled). If implemented in this manner, the plan would leave both Los Angeles and New York as single-team cities in 1961.

There were also conflicting reports as to who had come up with the 9-team plan. In some accounts, it was New York Yankees owner Dan Topping, while in others the idea was said to have originated with Los Angeles Dodgers owner Walter O’Malley. Both men would obviously have benefitted from the delayed entry of a new team into their market, plus O’Malley in particular did not want new competition until the completion of his new stadium at Chavez Ravine, which was scheduled to open in 1962.

Although baseball fans are often thought to be instinctively conservative, the initial public reaction to the 9-team league with interleague play proposal was generally favorable. A front page story in the November 30, 1960, Sporting News (the so-called Bible of baseball which was published a week before its cover date) described the receptive response in a story with the headline, “Fans Want Something New, Get It in 9-Club Majors, Inter-Loop Play.”

However, National League opposition to the 9-team plan surfaced almost immediately. By 1960, it was clear that the National League was the more popular league of the two, and many NL owners saw nothing to be gained by having to share the home gate with teams from the other league. Moreover, neither the Houston nor the New York owners were very enthusiastic about the idea of fielding a team by April of 1961.

By November 24, the New York Times and a raft of United States and Canadian newspapers were reporting that both the 9-team league plan and the idea of an American League team in Los Angeles seemed doomed and that the new tenth team in the American League would be Toronto, where the existing AAA team was supposedly to be elevated to major league status. In describing Cronin’s plan only two days after it was announced, a Milwaukee Journal headline somewhat prosaically observed, “Latest Plan Headed for the Scrap Heap.” Commissioner Ford Frick also announced that adoption of the plan seemed unlikely, but he nevertheless scheduled a special meeting for Wednesday, December 2, to discuss the possibility.

By November 26, Toronto owner Jack Kent Cooke had backed out of his interest in an expansion team, and there were rumors that the American League was about to announce that its expansion plans would be delayed until 1962. What was less visible was a debate going on among American league team owners. In an era when the two major leagues had much greater autonomy than they do today, one group of AL owners sought to work out an accommodation with O’Malley over Los Angeles while the other group advocated placing a team in Los Angeles whether or not National League approval was forthcoming.

There were also numerous calls from throughout the baseball world for Commissioner Ford Frick to use his powers to repeal the rule that effectively gave individual owners a veto power over the location of expansion teams.

As expected, on December 5, the National League rejected the proposal for two 9-team leagues playing an interlocking schedule. The official reason given was the inability of the Houston team to be ready for the 1961 season. However, to the surprise of many, Walter O’Malley and his fellow National League owners also announced that they were dropping their objection to the creation of a second Los Angeles team and that the American League was welcome to expand into the city for the 1961 season.

The following day, the American League announced that a new Los Angeles franchise, to be called the Angels, had been awarded to an ownership group headed by Gene Autry, the noted cowboy actor and singer who had become an entertainment mogul in the 1950’s.

The American League had established itself in the nation’s third largest city, but the story quickly surfaced that O’Malley’s permission did not come without a price. To get the Dodgers to drop their objections, Autry, who was already on friendly terms with O’Malley, agreed to pay a $350,000 indemnity to the Dodgers; agreed to telecast no more than 11 of his team’s 81 road games during the 1961 season; agreed to play the team’s 1961 home games in Los Angeles’ tiny Wrigley Field rather than the spacious LA Coliseum; and agreed to become the tenants of the Dodgers for at least three years once the Dodger-owned ballpark opened in 1962.

The 1961 season, which featured the famous assault on Babe Ruth’s single season home run record by Roget Maris and Mickey Mantle, was played with ten teams in the American League and eight in the National. In 1962, the Mets and Colt .45s (later Astros) joined the National League as scheduled. Both leagues played as 10-team leagues until 1969 when both expanded to 12 teams.

Although the idea of an odd number of teams in each league would not resurface until 2012, the concept of interleague play continued to be a regular topic of discussion in baseball circles, as it had been throughout the 20th century. Although actual regular season interleague play did not begin until 1994, such proposals were a regular feature of baseball deliberations.

In fact, the American League had proposed a limited number of interleague games in 1959, only to have it voted down by the National League. Even after the expansion of 1961 and 1962, the issue continued to be debated, and in early 1963, a Sporting News poll of its readers reported that almost 70% liked the idea. Ordinarily, proposals for interleague play came from the league with the weaker attendance—before 1960, the National and after that the American—only to be rejected by the better drawing league.

Of course, the days of no interleague play are long gone, and beginning in 2013, interleague play will be a daily feature of Major League baseball.

A recent issue of Time magazine, for example, included an article on Mr. Tebow, his faith, and the Tebowing phenomenon, with pictures of people in different locations “Tebowing Round the World.” Fox Sports’ website similarly offers a gallery of athletes and celebrities Tebowing in various settings. And last month, the Wall Street Journal ran an article entitled “Tim Tebow: God’s Quarterback,” observing that his “combination of candid piety and improbable success on the field has made Mr. Tebow the most-discussed phenomenon of the National Football League season.”

So, what is the possible relationship between Tebow-like conduct and the Constitution? As long as the faith expressions of Tim Tebow and his imitators don’t implicate the government, then the Constitution, which generally concerns only the government’s actions, is not triggered. Whether non-governmental entities such as the NFL or the Broncos wish to place limits on Tebowing—e.g., as “excessive celebration” prohibited by NFL Rule 12 § 3 art. 1(d)—is a matter that could potentially infringe players’ rights under federal or state civil rights statutes. But neither the First Amendment to the Constitution’s ban on religious establishments nor its guarantee of religious free exercise would come into play.

The conduct of Tim Tebow, alas, has not been confined either to Tim Tebow or to non-governmental settings. At least two public school students in New York, for instance, were suspended last month after Tebowing in a school hallway, allegedly for causing an obstruction. Whether or not their First Amendment speech and religion rights were violated is unknown—have all hallway obstructions led to such punishments?—but there can be no doubt that Constitution applies to the school’s actions.

Nor has Tebow-related conduct been confined to students. In Columbia, South Carolina, a high school coach seemingly encourages his athletes to be religious in the manner of Tim Tebow. That is entirely fine as a sentiment, but if it translates to pre- or post-game prayers led or promoted by the coach, then the Establishment Clause would almost certainly make such conduct unconstitutional. The same might even be true of Tebow-like touchdown prayers by players if encouraged, let alone directed, by the coaching staff.

To be sure, it was in the context of a public high school football game that even student-initiated and student-led prayer, when using the school’s public address system on school property and under school faculty supervision, was held by the U.S. Supreme Court to be unconstitutional under the Establishment Clause. Although the Court noted that “nothing in the Constitution . . . prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday,” it further remarked “the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”

In summary, Tebowing or other Tebow-like conduct may in some instances be protected by the Constitution’s First Amendment, while in others it may be circumscribed if not absolutely prohibited. Such calls, of course, will ultimately be made not by zebra-striped referees on the field of play but by black-robed judges in a court of law, with no set limit on either challenges or the use of instant replay footage.

After the Braves’ Chicago-based owners announced their plans to move to Atlanta, Georgia for the 1966 season, a criminal complaint was filed in Milwaukee County Circuit Court alleging that the Braves and the other nine teams in the National League had conspired to deprive the city of Milwaukee of Major League Baseball, and, moreover, had agreed that no replacement team would be permitted for the city. As such, the complaint alleged, the defendants were in violation of the Wisconsin Antitrust Act.

The defendants initially removed the lawsuit to the United States District Court for the Eastern District of Wisconsin, but on December 9, 1965, District Court Judge Robert Tehan remanded the case to the state circuit court where trial was conducted by Circuit Court Judge and former Marquette Law School professor, Elmer W. Roller.

On April 14, 1966, only hours before the Braves opened the season with a game against the Pittsburgh Pirates in Atlanta, Judge Roller ruled that the owners of the Braves and the other National League teams had acted in “restraint of trade” and thus were in violation of the Wisconsin Antitrust Act.

As a consequence, Roller fined the defendants $55,000, plus costs, and enjoined the Braves from playing their 1966 home games anywhere other than Milwaukee, unless the National League agreed to place a new team in Milwaukee in 1967. To give the National League time to make arrangements for an expansion team for 1967, Roller stayed his judgment until mid-June, an act that allowed the Braves to continue playing in Atlanta.

The Braves owners immediately appealed Roller’s decision to the Wisconsin Supreme Court, and the court agreed to hear the case on an expedited basis. On June 9, 1966, the appeal was argued on a day on which the Braves, who never had a losing season while in Milwaukee, sat in 6th place in the National League with a record of 25-30.

With the stay extended, the Braves continued to play in Atlanta, and six weeks later, on July 27, a day that would end with the Braves having slumped all the way down to 8th place, the Wisconsin Supreme Court overturned Roller’s lower court ruling by a narrow vote of 4-3. (Interesting to note is the fact that Supreme Court Justice E. Harold Hallows, who was also a law professor at Marquette, was one of the three dissenters who would have allowed Roller to enjoin the move to Atlanta.)

The Court’s majority’s opinion was based on two different rationales, and while not all of the four justices that made up the majority embraced both theories, each embraced at least one of the two. The first conclusion was that Organized Baseball’s exemption from the federal antitrust laws most recently upheld in Toolson v. New York Yankees (1953), extended to state antitrust rules as well. In the alternative, the majority opinion found that even if Organized Baseball was not exempt from state antitrust regulation generally, the portion of the remedy imposed by Judge Roller that ordered the National League either to return the Braves to Milwaukee or else give the city a new team ran afoul of the United States Constitution’s Commerce Clause and constituted an unenforceable interference with interstate commerce. The majority did, however, confirm Roller’s finding of facts concerning the monopolization of baseball in Milwaukee.

The three dissenters disagreed with both of the majority theories and concluded instead that Congress should be presumed to have left the regulation of Organized Baseball to the states until such time that it explicitly exercised its own regulatory authority. They also maintained that the legitimate interests of the state of Wisconsin in this case took priority over the “restrictive effect on interstate commerce that might result from the enforcement of Wisconsin’s laws.”

Not willing to concede defeat after such a narrow loss, the state of Wisconsin appealed the majority’s decision to the United States Supreme Court. However, pending a decision on the state’s petition for a writ of certiorari, Judge Roller’s lower court order was dissolved, and the Braves were free to play out the season in their new southern home.

Although the Braves lost again on July 28, to fall into 9th place, 14 ½ games behind the first place Pittsburgh Pirates, the Wisconsin Supreme Court decision seemed to clear away the cloud of bad play that had hung over the team all season. After falling to 45-55 on the 28th, the “Atlanta” Braves played inspired baseball the rest of the season, and ended up with a record of 85-77, good for 5th place (out of ten teams), and within 10 games of the pennant-winning Los Angeles Dodgers who overtook the Pirates.

(The year before the Milwaukee Braves had similarly finished in 5th place with a record of 86-76, eleven games behind the Dodgers. However, the previous season had played out in a quite different manner, as the Braves were in first place as late as August 18, before finishing in a 17-27 downward spiral.)

Milwaukeeans had to wait until December 12 to learn that the United States Supreme Court had denied the state’s petition for certiorari. However, in an uncharacteristic move, the Court revealed that it was badly divided on whether or not to hear the case. Justices William O. Douglas, Hugo Black, and William Brennan, it turns out, were in favor of hearing the case, but the cert. petition was opposed by Chief Justice Earl Warren and Associate Justices Potter Stewart, John Marshall Harlan II, Byron White, and Tom Clark.

Although he had taken the oath of office as a Supreme Court justice on October 4, recently appointed Justice Abe Fortas, according to the Court’s announcement, “took no part in the review of the petition.” Consequently, the attempt to involve the nation’s highest court died as a result of the failure of a fourth justice to support the petition.

In another unusual development, Wisconsin filed a petition requesting that the Court rehear the petition for certiorari, perhaps in hopes that Fortas might be now willing to support the petition, but this request was also denied. On January 23, 1967, the litigation over the Braves departure finally came to an end when the Court simply announced that the rehearing petition had been denied and that Justice Fortas had not participated in the review.

Thus, by late January it was clear that the city of Milwaukee would be without major league baseball for 1967. When the National League announced in November 1967, that it would be adding two additional teams for the 1969 season, Milwaukee applied for one of the franchises, as did groups from Dallas-Ft. Worth, Denver, Buffalo, San Diego, Toronto, and Montreal.

However, when the two new franchises were awarded in May of 1968, the National League ignored Milwaukee and awarded teams to San Diego and Montreal. (In the minds of many Milwaukeeans, the 1968 rejection was a form of retribution for the city’s filing suit against the league back in 1965.) As a result, except for 20 Chicago White Sox games played in County Stadium in 1968 and 1969, Milwaukee remained without Major League Baseball until 1970, when Bud Selig and his associates bought the bankrupt Seattle Pilots shortly before Opening Day and moved the one year old team to Milwaukee, where they were renamed the Brewers.

The most interesting question arising out of the Milwaukee Braves litigation is why the Braves were so anxious to leave Milwaukee in the mid-1960’s. After relocating to Milwaukee in 1953 (from Boston, where the team had played since 1871), the Braves were for the rest of the decade one of the showpiece franchises of all of baseball. In a decade in which attendance at major league baseball games steadily eroded, the Braves set one National League attendance record after another.

Part of the answer to the question lies in the fact that in the mid-1960’s Atlanta simply held much greater potential than Milwaukee as a source of revenue for a Major League baseball team. Not only was it based in a larger and still rapidly growing metropolitan area, but it was also located in an area (the Southeast) without Major League Baseball. In contrast, Milwaukee was bounded by the Chicago Cubs and White Sox to the South, the Minnesota Twins to the West, Lake Michigan to the East, and the under-populated wasteland of Northern Wisconsin to the north.

In other words, Atlanta’s superior location provided greater opportunities both for live attendance and for the sale of increasingly important broadcasting rights.

However, after the wave of team relocations between 1953 and 1961, Major League owners had become clearly reluctant to permit additional teams to change cities in search of greater revenues, particularly if it would leave the vacated city without a team. The proposals of Kansas City Athletics owner Charlie Finley to move his struggling team to various cities, including Dallas-Ft. Worth, Atlanta, Louisville, and Oakland had been regularly rebuffed in the years between 1962 and 1966. It was highly unlikely that the other owners would have approved the Braves relocation to Atlanta in 1966, had the only reason to move been a desire to make greater profits.

The sad reality was that between the mid-1950’s and the mid-1960’s, Milwaukee appeared to have gone from being a hotbed of baseball attendance to a city in which the citizenry seemed no longer willing to go to the ballpark to support their team, even if the team was still a pennant contender. Although this was something of a misperception, it is easy to understand why many observers in the 1960’s adopted that view.

The following are the attendance totals for Milwaukee between 1953 and 1965, with the team’s rank among major league teams in parentheses. The totals for 1953, 1954, and 1957 represented new National League attendance records.

YEAR ATTEND. RANK

1953 1,826,397 (1st of 16)

1954 2,131,388 (1)

1955 2,005,836 (1)

1956 2,046,331 (1)

1957 2,215,404 (1)

1958 1,971,101 (1)

1959 1,749,112 (2)

1960 1,497,799 (6)

1961 1,101,441 (9 of 18)

1962 766,921 (14 of 20)

1963 773,018 (16)

1964 910,911 (10)

1965 555,584 (19)

The reasons for the fall off in attendance after 1957 are complicated, especially given the fact that the team had a winning record during each of the thirteen seasons that it played in Milwaukee.

Fan exhaustion may have been a factor. This was certainly a much mentioned explanation in the press in the early 1960’s. The Braves were located in one of the smallest markets in major league baseball, and Milwaukee’s attendance totals represented a much higher percentage of the metropolitan population than that of any other major league team in the 1950’s.

For example, in 1960, which was not one of the Braves better years attendance-wise, the team’s attendance amounted to 130% of the population of the Milwaukee metropolitan area. In contrast, the attendance of the two league champions in 1960, the Pittsburgh Pirates and New York Yankees, amounted to 81% and 11% (!), respectively. For the major league attendance leader, the Los Angeles Dodgers, the ratio was 33%. For several years in the mid-1950’s, the Braves’ annual attendance was essentially double the population of the Milwaukee metropolitan area, a phenomenon achieved nowhere else in baseball history.

Of course, not all of those who attended Braves game came from the Milwaukee area. The team, in fact, regularly drew fans from throughout the state of Wisconsin, and the establishment of the Twin Cities-based Minnesota Twins may have cost the team fans from the western and central part of the state. (The Twins drew 1.5 million fans in 1961, and a significant portion of them came from Wisconsin.)

However, the drop in attendance was also related to the team’s perceived declining performance beginning in 1960. By one measure, the Milwaukee Braves were the most consistently successful team in major league baseball history, finishing, as already mentioned, with winning records in each of their 13 seasons in Milwaukee. On the other hand, the Braves were significantly more successful relative to their competition in their first eight seasons than in their last five.

After finishing second in the National League in 1953 and third in 1954, the Braves went on a remarkable run. In 1955 and 1956, they finished second behind the Brooklyn Dodgers, and by only one game in the latter year. They then won National League championships in 1957 and 1958 (and the World Series in 1957), and then finished in a tie for first place in 1959 with the now Los Angeles Dodgers. (Unfortunately, they lost the 1959 play-off series, and thus missed a third straight World Series.)

In 1960, the Braves were in first place as late as July 24, but a 36-30 record over the remainder of the season left them in second place, seven games behind the surprising Pittsburgh Pirates. Although the Braves actually won more games in 1960 than they did in 1959, baseball fans, then as now, were much more attuned to a team’s place in the standings than to its actual win-loss record. Accordingly, attendance at Braves games began to decline noticeably in August and September 1950, especially once it became clear that the Braves were not likely to catch the first place Pirates.

Although most Braves fans expected Milwaukee to return to the top of the National League in 1961, the team finished a disappointing fourth, its lowest finish since arriving from Boston in 1953. Once again, the decline was not as steep as the standings suggested. Even though the Braves lost all-star catcher Del Crandall with a shoulder injury shortly after the season began and number three starter Bob Buhl suffered a noticeable loss of efficiency as he struggled to a 9-10 season record, the team’s win total for the season declined only by five games. Offensively, the 1961 Braves scored 712 runs, compared to 724 in 1960, and the number of runs allowed by Brave pitchers actually improved ever so slightly from 658 to 656.

The situation appeared even worse in subsequent years as the Braves finished fifth, sixth, fifth, and fifth again in their final four years in Milwaukee (even while each year winning between 84 and 88 games in a 162-game season). Attendance plummeted steadily throughout the period even though the team was usually in the pennant chase for the better part of the season.

Accustomed to having a team at the top of the standings, Milwaukeeans seemed much less interested in a team in the middle of the pack, even if the team had a winning record and continued to feature star players like Hank Aaron, Eddie Mathews, Warren Spahn (through 1964), and Joe Torre.

There is little reason to blame the Braves for allowing the team to decline by ignoring the team’s roster. Although some of the Braves stars of the 1950’s, like Red Schoendienst, Wes Covington, Johnny Logan, and Billy Bruton, disappeared from the team’s roster in the early 1960’s, the Braves roster remained a talented one. The 1962 National League All-Star team, for example, featured six Milwaukee Braves among its 25 man roster.

When necessary, the Braves were willing to take on the contracts of established players to fortify the line-up. For the 1961 season, for example, they acquired all-star infielders Frank Bolling and Roy McMillan and power hitting outfielder Frank Thomas, each of whom was a regular on that year’s team, and, with Bolling and McMillan, for several years after that. Although the team’s focus shifted to the use of players from its successful farm system after 1961, when necessary, the team was willing to acquire established Major League players like Ed Bailey, Gene Oliver, Johnny Blanchard, Billy O’Dell, Ken Johnson, and Felipe Alou.

The Braves also continued to be one of the better franchises in developing young players and by mid-decade, the team’s roster included new stars like pitchers Tony Cloninger and Denny Lemaster, shortstop Denis Menke, and outfielder Rico Carty, who just missed being the 1964 Rookie of the Year after batting .330. (Perhaps the least significant personnel move of the era was the decision to promote minor league catcher and Milwaukee native Bob Uecker to the major league team in 1962.)

The real problem for the Braves in the early 1960’s was that they had to compete against teams like the Los Angeles Dodgers, San Francisco Giants, Cincinnati Reds, and St. Louis Cardinals of that era. Baseball talent was concentrated in the National League in the early 1960’s, and an impressive number of future Hall-of-Famers were entering the prime of their careers during the Braves’ final years in Milwaukee.

The Dodgers in those years were led by pitchers Sandy Koufax and Don Drysdale, who shattered existing strikeout records, and by shortstop Maury Wills who broke Ty Cobb’s supposedly unbreakable stolen base record. The Giants, in contrast, relied on power rather than speed, with a line-up that featured Willie Mays, Orlando Cepeda, Willie McCovey, who combined for 541 home runs between 1961 and 1965 (including 226 by Mays alone), and by the three Alou Brothers, and by pitcher Juan Marichal.

The Reds of this era featured Frank Robinson, Vada Pinson, and Pete Rose, and a pitching staff that produced six 20-game winners between 1961 and 1965. The Cardinals who finished the five year period from 1961 to 1965 with a combined record seven games better than Braves included players like the aging Stan Musial and younger stars of the caliber of Ken Boyer, Bill White, Dick Groat, Lou Brock, Curt Flood, and the incomparable Bob Gibson.

The Braves experience in the 1960’s of sharply declining attendance in spite of a successful team on the field was not without recent precedent. Between 1948 and 1950, the American League’s Cleveland Indians saw their total attendance decline from 2.6 million to 1.7 million, in spite of having winning seasons each year. Moreover, in spite of never finishing lower than second place between 1951 and 1956, the Indians saw their attendance further decline from 1.7 million to 900,000. The following table illustrated the decline in attendance in the face of consistent winning seasons that occurred in Cleveland in the late 1940’s and early to mid-1950’s.

YEAR FINISH ATTN.

1947 4th 1.5m

1948 1st 2.6

1949 3rd 2.3

1950 4th 1.7

1951 2nd 1.7

1952 2nd 1.4

1953 2nd 1.1

1954 1st 1.3 (best won-lost record in American League history)

1955 2nd 1.2

1956 2nd 0.9

The conventional explanation for the decline in Indian attendance was the Cleveland fan’s frustration at the inability of his team to overcome their hated rivals, the New York Yankees, who won the American League pennant in each of the above years, except for 1948 and 1954 when the Tribe finished ahead of the Bronx Bombers.

Although the Milwaukee Braves 1961 season was hardly a failure in terms of either on the field performance or attendance, it was the first year since arriving from Boston that the team failed to turn a profit. The team’s attendance dropped by almost 400,000 fans, and the decline in attendance revenue, combined with the fact that the Braves probably had the highest payroll in the Major Leagues, converted a $500,000 profit in 1960 into an $80,000 loss in 1961. (The decision to shore up the team with veterans like Roy McMillan, Frank Bolling, Frank Thomas, and Johnny Antonelli , acquired before or during the 1961 season, had greatly inflated the team payroll, but obviously did not lead to a rebound in attendance.)

Some observers attributed the decline in attendance to a new city ordinance that took effect for the 1961 season which prohibited fans from bringing their own beer into the park. Although a number of contemporary newspaper stories report how unpopular this ordinance was with Braves fans, it is hard to believe that this explains the decline in attendance. Throughout the 1950’s, the Braves had been credited with having the “highest per capita concessions sales in the major leagues,” so it seems unlikely that having to pay for beer at the ballpark would alone cause such a steep drop in attendance.

Another explanation for the decline in attendance in 1961 was the appearance in the upper Midwest of the transplanted Washington Senators, now playing as the Minnesota Twins. Throughout the 1950’s, the Braves had been popular in western Wisconsin and Minnesota and excursion baseball buses running across the state had been a regular summer feature. The Twins did draw a million and a half fans in their inaugural season, but, again, it is hard to believe that competition from the Twins explains the substantial drop in attendance, any more than does the new restrictions on bringing beer into County Stadium.

This sudden decline in profitability led owner Lou Perini to make a number of changes after the 1961 season. To cut his payroll, the team sold the contracts of recent acquisitions Frank Thomas and Johnny Antonelli to the expansion New York Mets. (Antonelli was washed up and never pitched again, but Thomas hit 34 homeruns for the Mets the following year.) The team also introduced a new slogan “Something new in ‘62” as a way of highlighting its plans to make greater use of players from the team’s farm system, other than bringing in stars from other teams, which had been the apparent strategy in 1961.

Perini also raised ticket prices (as he had before the 1961 season) and for the first time agreed to permit the broadcast of a limited number of Braves games on television. In 1961, the Braves were the only major league baseball team that did not allow any of its games to be televised into its home market, but in 1962, Perini permitted the broadcast of fifteen road games on local television. He also made plans to install an escalator at County Stadium to make it easier for fans to reach the upper deck.

None of this worked to revive fan interest, and in spite of Perini’s increased spending on publicity, the team sold only 6,000 season tickets for the 1962 season, a total which represented a 50% decline since 1959. When the attendance dropped by another 330,000 that year, Perini in frustration agreed to sell the team to a Chicago-based group of investors for a purchase price of $5.5m. Perini, who never personally moved from Boston to Milwaukee, cited the wide-spread operation of his construction company as a reason for the sale.

There is some evidence that suggests that the new owners purchased the team with plans to move it to Atlanta already formulated. However, Atlanta’s planned new municipal stadium would not be ready until 1964 or 1965, so it was necessary to continue to play in Milwaukee whatever their intentions.

In 1963, the new owners sought to recoup part of the purchase price by expanding the number of Brave games on television, agreeing to broadcast five home games during the upcoming season, as well as another package of away games. In addition, the new owners issued and sold stock in the team, but sales were extremely disappointing.

More importantly, rumors of the new owners plans to move the team to Atlanta began to spread almost immediately, a fact that could hardly have helped attendance. Whatever the impact of such rumors, attendance was basically stable in 1963, and the Chicago-group reportedly lost another $60,000.

The situation improved slightly the following year. The 1964 Braves were one of the great offensive teams of that era, scoring over 800 runs and averaging just under five runs per game, which was better than a half run more than the eventual champion Cardinals. Unfortunately, 1964 was the year that the seemingly ageless Warren Spahn ran out of gas at age 43, and Brave pitchers compiled the second highest ERA in the National League. While they were in contention during the early part of the season, sitting in third place, one and a half games back of first place, on May 29, the team slumped in June and spent most of the season in the second division.

A last gasp effort saw the club win 14 of its final 17 games to pull within five games of the first place Cardinals (although still in 5th place). Attendance went up about 200,000 people in 1964, but the season’s total fell below the one million mark.

Throughout 1963 and 1964, rumors were rampant that the new owners planned to move the team to Atlanta. Even with increased attendance and more games on television the team incurred further losses in 1964, totaling a reported $500,000 (!). In light of continued losses, the decision was finally made to relocate the team to Atlanta in time for the 1965 season, and initially the other National League teams supported the move.

However, the Milwaukee County Board threatened to sue to enjoin the relocation of the team unless it complied with the terms of its lease which ran through the 1965 season. A team offer to buy out the lease was rejected by the Board, and in the face of a potential lawsuit, the other National League owners refused to approve the 1965 relocation plan after all. However, they did declare that it was in the best interests of the National League to permit the Braves to move to Atlanta in 1966, essentially confirming the lame duck status of the Milwaukee Braves of 1965.

Fan reaction to this resolution was one of unrepressed anger. Although the Braves were in first place for most of the 1965 season, after opening day, the 1965 season was played under a fan boycott, and barely a half million people showed up for the Braves home games that year. When the Braves did in fact depart after the 1965 season, the case of Wisconsin v. Milwaukee Braves began.

Was there anything that could have been done to prevent the situation that resulted in the Braves departure? In 1965, as a last ditch effort, Wisconsin Senator William Proxmire introduced a bill in the Senate that would have required major league teams to pool all of their radio and television income in a way similar to the then current practice in the National Football League. The bill never got out of committee in the United States Senate, but such a requirement might have reduced the lure of relocating to new territory and perhaps kept the Braves in Milwaukee.

However, short of a structural change of that nature, it is difficult to see how the situation might have been different. The real aberration in Milwaukee baseball history was the attendance figures of 1953-1959, not those for 1960 to 1965. Given its population, Major League Baseball attendance in Milwaukee in the early 1960’s, at least through 1964, was actually pretty good. Selling the team to owners with no commitment to Milwaukee in 1962, probably made it inevitable that the team would soon be relocated to a larger, more lucrative market.

On the other hand, what the Braves really lacked after 1960 was exceptional pitching. In December 1960, fearing that long-time shortstop Johnny Logan was nearing the end of the line and believing that neither of his back-ups, Felix Mantilla and Andre Rodgers (acquired from the Giants earlier in the off-season) were ready to be full-time major league shortstops, the Braves traded pitchers Juan Pizarro and Joey Jay to the Cincinnati Reds for all-star shortstop and Gold Glove winner Roy McMillan.

Although not a strong hitter, McMillan was widely regarded as the best defensive shortstop in baseball, and, teamed with newly acquired second baseman Frank Bolling (obtained in a trade with Detroit for centerfielder Billy Bruton), he gave the Braves the best defensive infield in the National League.

However, the two pitchers the Braves traded for McMillan both blossomed in 1961. Joey Jay had first appeared for the Braves in a major league game in 1953 as a 17-year old bonus baby, but had been a disappointment for most of his time with the team. Consequently, even though he had pitched well when inserted in the starting rotation at the end of the 1960 season, he was deemed expendable. Unfortunately for the Braves, Jay won 21 games with the pennant-winning Reds in 1961, tying Spahn for the most wins in the National League and finishing 5th in the National League MVP voting.

Pizarro, who was subsequently traded by the Reds to the White Sox, had shown great promise with the Braves in 1958 and 1959, but had a disappointing season in 1960. However, in 1961, given a chance to start for the White Sox, the left-hander went 14-7 with a 3.05 ERA and led the American League in strikeouts per nine innings.

In 1961, the Braves starting pitching was at best mediocre behind staff aces Warren Spahn (21-13) and Lew Burdette (18-11). Bob Buhl, with Spahn and Burdette the anchor of the staff during the World Series years, slumped to 9-10 with a 4.11 ERA and fourth starter Carl Willey finished only 6-12. Highly regarded rookie pitchers Bob Hendley and Don Nottebart combined for a disappointing 11-14 record, and mid-season call up Tony Cloninger, while posting an impressive 7-2 won-lost log, had an unimpressive 5.25 ERA.

One can never say for certain, but had the 1961 Braves featured a starting rotation of Spahn (21-13), Jay (21-10), Burdette (18-11); and Pizarro (14-7), and a shortstop parlay of Logan, Mantilla, and Rodgers, the chances are good that the Braves, not the Jay-less Reds, would have won the National League pennant that year. Even more importantly, Milwaukeeans would have returned to the ballpark at 1957 and 1958 levels; Parini would have not sold the team to the Chicago investors; and the Braves would still be playing in the Cream City.

At least it’s fun to think that that might have happened.

The saga of the Braves in the 1960’s does raise a number of questions that are beyond the scope of this essay. Why, for example, were Major League Baseball teams in the 1950’s and 1960’s so slow to exploit the economic advantages of local television broadcasting in their own immediate markets? This is particularly interesting in light of the importance of such rights in the modern era. (New York Yankee dominance is currently built on the team’s local cable contract.) Although the Braves were extreme in their refusal before 1962 to allow any of their games to be broadcast into Milwaukee, several teams, including the highly successful Los Angeles Dodgers, refused to allow the broadcast of their home games in that same era.

Finally, what would have happened if the Supreme Court had granted certiorari in Wisconsin v. Milwaukee Braves? One can only guess, but it seems likely that two of the three justices who voted to hear the case—Douglas and Brennan–wanted an opportunity to overrule the Supreme Court’s decision in the 1953 case, Toolson v. New York Yankees (1953), in which the exemption of Organized Baseball from the antitrust laws was upheld. Six years later, in their dissents in Flood v. Kuhn (1972), the two said as much. What Justice Black was thinking in 1966 is less clear, particularly given that he, with a last minute contribution from Warren, had written the court’s per curiam opinion in Toolson.

Of course, a decision overturning Toolson would have been of no immediate benefit to Milwaukee, since if the federal antitrust laws were to be applied to Organized Baseball, that would almost surely mean that they would preempt any application of the Wisconsin Antitrust Act.

The more interesting question is whether it possible that there were five justices on the court in 1967 that would have accepted the broad leeway given to state power by the opinion of the dissenting justices on the Wisconsin Supreme Court? One can never answer such questions with absolute confidence, but if such justices existed, why wouldn’t they have voted to hear the case? Moreover, as constitutional historian Michael Belknap demonstrated in his The Supreme Court Under Earl Warren, the Warren Court was generally hostile to state efforts to regulate the instrumentalities of interstate commerce.

On the other hand, the voting patterns of United States Supreme Court justices in cases involving the sports industry have been notoriously difficult to predict.

In any event, the Braves left town, but life, and baseball, managed to go on in Milwaukee without them.

Author’s note: Growing up in Pearisburg, Virginia, I became a fan of the Milwaukee Braves in 1961 for three reasons. (1) My youth league team, from which I was cut in 1961 but rejoined the following year, was called the Braves. Although our uniforms were green, I associated the Pearisburg Braves with the Milwaukee Braves from the very beginning; (2) My Great-Uncle Kester, “Ket,” Hoke was from Nitro, West Virginia, the home town of Braves star pitcher Lew Burdette, and he was a member of a group of men who went squirrel hunting with Burdette in the off-season; and (3) my oldest baseball card, which dated all the way back to 1959, was of Braves first baseman Joe Adcock who I thought looked a little bit like my Dad.

I followed the Braves intently every year in the 1960’s, and having read about the glory days of 1957 and 1958, I fully expecting them to return to the top of the National League standings. I was not particularly disappointed with the move to Atlanta in 1966 for a couple of reasons. First of all, Atlanta seemed much closer to my home town than Milwaukee, and the arrival of the Braves in Milwaukee allowed for the transfer of the Braves top minor league to Richmond, Virginia, where my cousins lived and where the top Brave farmhands would play for the next forty years.

I have only the vaguest recollection of the lawsuit Milwaukee filed against the Braves, but I do remember much better how widely the fan boycott of 1965 was covered by the press, even in the local Virginia newspapers. Consistent with “following” the Braves to Atlanta, I felt no affinity for the Brewers when they arrived in Milwaukee in 1970. Hence, my years as a Brewer fan only began when I joined the Marquette faculty in 1995. However, when I attended the special ceremony at County Stadium in 1997 honoring the 1957 World Champion Braves, I felt like I was paying tribute to a part of my childhood.

Warning:

I remember watching the 1960 World Series on television, but the first year that I really followed major league baseball was 1961, the year of Roger Maris and Mickey Mantle’s historic assault on Babe Ruth’s single season home run record. When the baseball season was over, my new-found enthusiasm for sports led me to become a pro football fan as well.

The 1961 season was the second in which the National Football League faced competition from the upstart American Football League. Although everyone I knew and everything I read viewed the NFL as the superior league, no one seemed to deny that the AFL was a major league. As with baseball, my two primary sources of sports information were the sports page of our daily newspaper, the Roanoke Times, and sports cards that came packaged with bubble gum, the purchase of which consumed most of my meager resources.

The local drug store from which I purchased most of my football cards carried the 1961 Fleer Pro Football set, which contained 220 player cards representing all 8 AFL teams and 14 NFL teams, including the expansion Minnesota Vikings. (There were only seven Viking cards, and the player pictured on each was shown in the uniform of his previous NFL team.) Cards came five to a pack with a piece of bubble gum. AFL and NFL cards were never mixed together, so you knew immediately whether you had gotten an AFL or a generally-perceived-to-be-much-more-valuable NFL pack.

For me, picking a favorite football team in 1961 was a real challenge. My home town in southwest Virginia was more than 300 miles from any city with a team; neither of my parents was a professional football fan, and my family, having always lived in rural Virginia and West Virginia, had no connection to any large city. In baseball, I had rooted for the New York Yankees and the Milwaukee Braves (the former because of Maris and Mantle and the latter because my youth league team was called the Braves).

However, these baseball connections did not automatically transfer into my becoming a New York Giants or a Green Bay Packer fan. (I now regret not picking up on the coolness of the Packers until I came to Marquette in 1995. I think the Green and Gold uniforms, which closely resembled those of the Narrows Green Wave, my town’s arch rival, eliminated them as a rooting interest.) I did root for the New York Titans (now Jets) in the AFL, but the AFL counted for very little among my circle—my friend Tommy Powell once offered to trade me his entire collection of AFL cards for my one Johnny Unitas card, but I refused the offer.

The ability to follow an NFL team in Pearisburg, Virginia, in 1961 was restricted in several ways. One was the limited number of television and radio options for following the NFL generally. The one local radio station did not carry any football games at all, and the options available on the one television station that we received were, needless to say, fairly restrictive.

Although the Sports Broadcasting Act was passed in the fall of 1961, the 1961 season was the last in which the previous broadcasting rules applied. Basically, because of judicial interpretations of the Sherman Act’s application to the NFL, the league was prohibited from negotiating a collective broadcasting contract with an individual television network (of which there were then three). As a result, individual teams negotiated with the networks or with independent stations for the rights to their home games. (Allowing the collective sale of broadcast rights was the major change brought about by the Sports Broadcasting Act.)

Throughout the 1950’s, most NFL teams sold their broadcast rights to CBS, but for the 1960 and 1961 seasons, the rights to the home games of the Colts and Steelers were acquired by NBC. In contrast, the AFL games had been sold as a block to ABC shortly after the league’s founding in 1960, apparently on the assumption that the Sherman Act did not apply to the AFL in the same way it applied to the NFL. (Presumably, this was rooted in the notion, given the nature of its founding where teams were started from scratch, that the AFL constituted a single economic entity whereas the NFL was a combination of teams, most of whose economic existence predated their membership in the NFL.

Unfortunately, because of the location of our house (and probably because of the technological limitations of our television antenna which had been purchased in 1955 or 1956), we could only pick up the signal of one television station, WSLS-TV in Roanoke, which was an NBC affiliate. Consequently, the only games I could watch featured either the Colts or the Steelers and whomever they might be playing. (The two teams, which were in different divisions, did not play each other in 1961.) Some people in the town with a better location (or a better antenna) could pick up a CBS station, but no one got ABC.

The other factor affecting the object of my fandom was the enormous popularity of the Baltimore Colts in southwestern Virginia. As far as I could tell, all of the pro football fans in my home town rooted either for the Colts or the Washington Redskins (which was the closest team.) Older adults could probably remember when the Redskins were a top team, but in the recent past they had been dreadful. (Just ask Professor Kossow, who even then was a season ticket holder.) In 1960, the Redskins were 1-9-2, and the year before that, which to me in 1961 seemed like ancient history, they were only 3-9-0. It was also clear to me that most Colts fans were of the view that only life’s losers rooted for the Redskins.

In contrast, the late 1950’s and early 1960’s were the Golden Age of the Baltimore Colts. The Colts had won NFL championships in 1958 and 1959, and the names of their star players—Johnny Unitas, Lenny Moore, Kenosha’s Alan Ameche, Raymond Berry, Gino Marchetti, Eugene “Big Daddy” Lipscomb, L. G. “Long Gone” Dupre, and Art “Fatso” Donovan—were as well known in the Mid-Atlantic region as the Lombardi Packers would be in 1960’s (and later) Wisconsin. The Colts appeared to be on their way to a third straight championship in 1960 until they mysteriously lost their last four games of the season, and were replaced as Western Division champions by Vince Lombardi’s upstart Green Bay Packers, which, before Lombardi’s arrival, had spent most of the 1950’s competing with the Redskins for the title of “sad sack” of the NFL.

So I began the season unsure of which team I liked best. My next door neighbor, Tom Givens, convinced me that I should be rooting for the Redskins, so I started off trying to be a Redskins fan, but after the still all-white team started the season 0-9-0 while being outscored 245-68, I sort of gave up on them. As it turned out, it didn’t get much better for the Skins, who finished the season 1-12-1 with a tie and a final game victory over the Dallas Cowboys, which were in their second year of existence.

Watching the Steelers on television on a regular basis made me sort of a Steelers fan, and they did have some very cool players: halfback Tom “the Bomb” Tracy (who specialized in the halfback option pass, although he only rarely completed his tosses), fullback John Henry Johnson (presumably named after the legendary railroad worker who was a local hero where I grew up), and quarterback Bobby Layne, whom the announcers treated like some revered elderly figure and who kicked extra points, but not field goals.

However, the Steelers didn’t do that well either. They lost their first four games—only one of which was televised–before finally getting their first win of the season, a shutout of the Redskins. (Who else?) Plus, Bobby Layne was injured and missed the middle half of the season, and even though the Steelers won four of their next five games after the 0-4 start, they dropped three of their last five to finish 6-8-0. By mid-season, I was basically a Colts fan.

But the Colts also had problems. The shortcomings that had plagued the team at the end of the 1960 season, which were probably personnel related, continued in the early part of the 1961 season. After opening with a narrow 27-24 victory over the Los Angeles Rams, the Colts lost four of their next six games, including losses to the Packers and Lions, which along with the Colts had been the preseason favorites in the NFL West, and two defeats at the hands of the Chicago Bears in the space of 15 days.

At mid-season, the Packers were in first place in the West with a 6-1-1 record while the Colts were in fifth place, trailing not just the Packers, but also the surprising Bears, the 49ers, and the Lions.

The Colts appeared to be on the verge of rallying in the second half of the season when they pasted the Packers, 45-21, in a November 8 game in Baltimore. Unfortunately, the Colts dropped their next game to expansion Minnesota Vikings, by an embarrassing score of 28-20. This loss left them three games behind the Packers (who that same day bested the Bears 31-28 in Wrigley Field) with only five games to play.

Although the Colts won four of their last five games, the Packers continued to win and actually clinched the West Division championship at the end of Week 12, two weeks before the end of the regular season.

The race in the NFL East Division was much closer, and basically featured a three-way contest among the defending champion Philadelphia Eagles, the New York Giants, and the Cleveland Browns that lasted until the final day of the regular season. The Eagles either held or shared first place for 10 of the first 12 weeks of the season, but at the end of Week 12, the Eagles and Giants were tied for first with records of 9-3-0, with Cleveland a game behind at 8-4-0.

On Sunday, December 10, the Division leaders squared off against each other in Philadelphia. The Eagles led 10-7 after the first quarter, but the Giants then replaced starting quarterback Y.A. Tittle with his aging back-up Charlie Conerly. Conerly rallied his teammates, throwing three touchdown passes and no interceptions as the Giants held off their rivals to the south and came away with a 24-20 victory. This put the Giants one game up on the Eagles with one game to go, assuring them of at least a tie for first place. That same day, the Browns were eliminated by a close 17-14 loss to the Bears in Chicago in a game in which the Browns had led 14-0 in the 4th quarter before faltering.

To retain the East Division title, Philadelphia had to defeat the Lions in Detroit the next weekend and hope that Cleveland could travel to New York and win out over the Giants. In that case, the two teams would play a 15th game to determine the division champion.

The Eagles defeated the Lions, but it was for naught as the Giants and Browns battled to 7-7 in Yankee Stadium. With a record of 10-3-1, the Giants edged the 10-4-0 Eagles by a half game.

Two weeks later, on New Year’s Eve, the Packers and Giants met in Green Bay for the 1961 NFL Championship. Although the Packers had played in the 1960 championship game, their last NFL title had come in 1944, when they bested the Giants 14-7 in New York’s Polo Grounds. The Giants were not strangers to the title game either; in fact, although their last NFL title had come in 1956 when they trounced the Chicago Bears, 47-7, Gotham’s team was playing in the championship tilt for the fourth time in six years.

The 1961 championship was played in 17-degree weather with a 10-mph wind in the Packers still new stadium, which had opened in 1957. Known originally as “City Stadium” or “New City Stadium,” the structure would not be renamed Lambeau Field until 1965. The game was televised on NBC, which held the exclusive rights to broadcast the NFL championship game from 1955 through 1963.

The game itself was a complete anti-climax. After a scoreless 1st quarter, Packer halfback Paul Hornung, the NFL’s leading scorer, ran the ball over the goal line from six yards out. Quarterback Bart Starr then tossed TD passes to wide receiver Boyd Dowler and tight end Ron Kramer. When the next Packer drive stalled at the 10-yard line, Hornung finished off the 24 point quarter with a 17-yard field goal. (In 1961, NFL goal posts were positioned on the goal line, hence the 17 yard field goal.)

In the third quarter it was more of the same, with Horning kicking a 22 yard field goal, and Starr tossing another TD pass to Ron Kramer. The only scoring in the final quarter was a third field goal by Hornung, this one from 19 yards out, giving him a total of 19 points for the game (one touchdown, four extra points, and three field goals)

For the game, the Packers outrushed the Giants 181 yards to 31, with Hornung and Jim Taylor leading the way with 89 and 69 yards, respectively. Starr passed for 164 yards and three touchdowns, compared to a combined 119 yards for Tittle and Conerly. Ron Kramer led the Packers in receptions with four (two for TDs), and both Dowler and Hornung pulled in three catches. Popular wide receiver Max McGee was shut out in the receiving department, but no one really noticed.

The Packer defense was particularly effective that day, as the 37-0 score suggests. In addition to holding the Giant running backs to 31 yards on 14 carries, the defense sacked Tittle twice for losses of 20 yards and intercepted him four times. As in the earlier Giant-Philadelphia game Charlie Conerly was brought in off the bench when Tittle faltered, but in the championship game there would be no magical comeback, as Conerly was able to complete only four of eight passes for a paltry 54 yards.

The names of the starters for the Packers in the 1961 NFL championship game still resonate deeply for many Wisconsin sports fans. The offensive backfield that day included Bart Starr (QB), Paul Hornung (HB), Jim Taylor (FB), and Boyd Dowler (FL). The ends were Max McGee and Ron Kramer, and the offensive line included center Jim Ringo, guards Fuzzy Thurston and Forest Gregg, and tackles Norm Masters and Bob Skoronski. (Starting guard Jerry Kramer missed the game with an injury, forcing Forest Gregg to move to guard from his normal starting tackle position.)

The Packer defensive line was made up of defensive ends Willie Davis and Bob Quinlan and defensive tackles Henry Jordan and Dave Hanner. The starting linebackers were Bill Forester, Dan Currie, and middle linebacker Ray Nitschke, while the defensive backfield included cornerbacks Hank Gremminger and Jess Whittenton, strong safety John Symank, and free safety Willie Wood. Wide receiver Boyd Dowler handled the punting, and Hornung did the place-kicking.

The 1961 NFL season did not actually end, however, until January 14, 1962, the date of the post-season all-star game officially known as the East-West Pro Bowl game. It too was televised by NBC.

I can still remember listening to the game sitting on the floor in our den. I say listening because some time after Christmas 1961, a tube blew out in our television set, a fairly common occurrence in the pre-printed circuit era of electronics. Although the sound continued to work, the screen remained completely blank, effectively turning the television into a radio. When this happened, my parents invariably treated it as a kind of divine signal that my brother and I needed to take a break from TV, and they usually waited a few weeks before getting the tube replaced.

Consequently, I was forced to listen to the game and imagine in my mind what turned out to be the most exciting professional football all-star game of all time. The West led for most of the game, jumping out to a 14-3 lead in the first quarter. However, the East regrouped and managed to narrow the gap to 17-10 at the half. At the end of the third quarter, the West still led, 24-16, as both teams scored touchdowns, but the East’s extra point attempt was blocked by Green Bay Packer (and University of Virginia graduate) Henry Jordan.

However, the East offense caught fire in the final quarter, and put a quick 14 points on the scoreboard when Title passed two yards to his team Alex Webster for one touchdown and fullback Jimmy Brown ran 70 yards for another.

With the East now in the lead, 30-24, the West offense continued to sputter, and with less than two minutes to go in the game, the East had the ball with the intention of running out the clock with a series of rushing plays. However, a crushing tackle by Chicago Bear linebacker Bill George caused an uncharacteristic fumble by Jim Brown, which was recovered by George on the East’s 42 yard line, providing the West with one final shot at winning the game.

West quarterback Johnny Unitas quickly completed a pass of 14 yards to tight end Mike Ditka of the Bears, and then on the next play, one of 15 yards to his Baltimore Colt teammate Lenny Moore. However, a second pass to Moore fell incomplete, and with only seconds remaining, the West had the ball on the twelve-yard line. On the game’s final play, Unitas hit Los Angeles Ram halfback Jon Arnett in the back of the end zone for a game tying six points, and with time expired the West converted the extra point for the victory.

In spite of his fumble, Jimmy Brown was named the player of the game while top lineman honors went to Henry Jordan.

It was a great way to end a great season. We talked about it the next day in my Fourth Grade class, and a half century later, I still remember the 1961 season.

It is curious, though, why none of these independent leagues joined, or so far as I know, attempted to join the National Association, the umbrella organization within Organized Baseball for the minor leagues.

I realize that there are reasons why an independent league might not want to join up with Organized Baseball. Minor league salary restrictions might be more stringent than those in independent leagues, and of course, any independent league with a team occupying the same geographic territory as a team in organized baseball (like the St. Paul Saints) would have to relocate those teams if it affiliated with the National Association.

On the other hand, membership would provide added security for player contracts and would allow league owners to profit by selling players for modest sums under the Rule 5 draft. Plus they would be eligible for major league affiliations which might help boost attendance.

Does the National Association itself have restrictions that limit the possibility of the admission of new leagues, particularly those composed of teams without major league affiliations? Did the so-called Player Development Plan of 1962, the agreement that led to the restructuring of minor league baseball, include an agreement that no new independent professional leagues from the United States would be admitted into Minor League Baseball?

Only a handful of new leagues have joined the National Association since the 1960. They are

1. Western Carolinas League, 1960.

2. Mexican Center League, 1960.

3. Georgia-Florida League, 1962.

4. Mexican Southeast League, 1964.

5. Gulf Coast League, 1966.

6. Mexican Northern League, 1968.

7. American Association, 1969

8. Arizona League, 1988.

The two real minor leagues on this list, the Western Carolinas League and the Georgia-Florida League, both represented efforts to revive earlier lower-ranking minor leagues with the same name that had previously folded. Both, it should be noted, were admitted to the National Association before the 1962 reorganization.

The Western Carolinas League, which was originally founded as a minor league for the proposed Continental League (and was to be a third major league), is still around today, although since 1980, it has operated under the name South Atlantic League. (The original South Atlantic League changed its name to the Southern League in 1964, and it is also still around today.) The revived Georgia-Florida League, however, folded at the end of the 1963 season.

Three of the leagues on the above list were admitted to the National Association simply because they were located in Mexico. Under the terms of the settlement growing out of the “war” between Organized Baseball and the Mexican League in the 1940s, Mexican professional leagues were eligible for National Association membership (and the protection of player contracts that implied), even though they were not part of the minor league player development system. The Mexican Southeast League lasted through the 1970 season, and the Mexican Northern League folded the following year, while the Mexican Center League lasted through 1978.

The other three leagues were creations of Organized Baseball and not new leagues in the traditional sense. The Gulf Coast League and the Arizona League are special rookie leagues created by the Major Leagues to facilitate player development under highly controlled conditions. The teams in the two leagues do not have individual owners or geographic names—they are known only by the name of their major league parent. Games are played in mid-summer in spring training facilities; no admission is charged for the games, and no attendance records are compiled.

The re-creation of the American Association in 1969 and its readmission to the National Association was also not the product of a new league seeking to join Organized Baseball. It was the product of a decision by Organized Baseball to reestablish the once famous minor league which after the 1962 season had been folded into the PCL and the International League.

The new American Association was created by Organized Baseball and composed entirely of teams that had played in one of the other two AAA leagues the previous season. The decision to add a new AAA league was motivated by the fact that the 1969 expansion of the number of major league teams from 20 to 24 (which necessitated a similar increase in the number of AAA teams) made it seem more reasonable to operate three AAA leagues rather than two. (In 1997, the powers that be changed their minds, and the three AAA leagues were consolidated into two with the American Association once again disappearing.)

So, in reality, the National Association has not admitted a newly organized league to its membership ranks since 1962. On the other hand, it appears that, other than the American Association which was absorbed into two other leagues, only one non-Mexican based league has folded since the Georgia-Florida League went under in 1963. (The league that folded was the original Northern League which went under at the end of the 1971 season.

This certainly makes it look like a decision was made somewhere along the line to fix the number of member leagues. (The plan adopted in 1962 keyed the number of high ranking minor league teams to the number of major league teams, but it did not appear to place an absolute cap on the number of minor league teams.)

Forty years ago, after the collapse of the Northern League, there were 16 United States-based minor leagues in the National Association. Today there are still 16, with the Arizona League “replacing” the American Association as the only difference.

Am I right to assume that Organized Baseball today would reject an application from a well-funded, well-organized independent league that wanted to join the National Association?

The answer lies, I believe, in the typical fan’s feelings about his or her lack of natural athletic ability.  It is one of the sad facts of life that there is no correlation between love of, and enthusiasm for, sport and the possession of athletic ability.  Consequently, the thought that some extraordinary event (or substance) might transform an average or below average athlete into a superstar performer is a very common fantasy, especially among males.

Over the years, this fantasy has generated its own literature.  My three favorite versions are the 1949 movie, “It Happens Every Spring,” Douglas Wallop’s 1954 novel, The Year the Yankees Lost the Pennant (which was the basis for the musical, “Damn Yankees”), and the 1962 comic book story, “Goliath of the Gridiron.”

“It Happens Every Spring” was written by Academy-Award-winning writer Valentine Davies who based the screenplay on a short story by University of Michigan administrator Shirley Smith (who despite his given name was male).  In the story, Vernon Simpson, a baseball-loving college chemistry professor at a small Midwestern college, accidentally produced, through a laboratory mishap, a liquid that makes anything it touches repellant to wood.  Simpson immediately realizes that a baseball coated with this liquid could not be hit with a wooden bat.  Thus, a pitcher who kept his glove moist with the strange substance would be able to throw unhittable pitch after unhittable pitch.

So inspired, Vernon abruptly resigns his teaching position and abandons his fiancé to travel to the ballpark of this favorite team, the St. Louis Cardinals.  Although the season is already underway, Vernon worms his way into a tryout with the Cardinals, and when his manager realizes that he has found an unbeatable, if somewhat flaky, pitcher, he immediately signs him to a contract and inserts him into the starting rotation.

Calling himself simply “Kelly” to disguise his real identity, Vernon reels off thirty straight victories as he pitches the Cardinals into the World Series against the powerful New York Yankees.  By Game 7, however, Vernon’s supply of his magic liquid is nearly gone, and he has no way of making any more of it.  Even so, his teammates expect him to pitch the penultimate game of the season, so he has to take the mound as his real self.  Miraculously, the Cardinals win the game 7-5 when Simpson, with the bases loaded in the 9^th inning, snares a vicious line drive with his bare pitching hand to preserve the victory.  His hand is badly broken, but that is really no misfortune since it gives him as excuse to retire from baseball without having to explain the sudden disappearance of his pitching ability.

Having had his moment of glory, Simpson decides to return to his previous life as a college teacher, if that is possible.  When he arrives with great apprehension in the small college town that he abandoned several months earlier, he is welcomed back as a conquering hero by his former students and colleagues (and fiancé), all of whom had already figured out that the great Kelly was their own Vernon Simpson.

The viewer shares Vernon’s triumphs and notices hardly at all that our hero reached the pinnacle of the baseball world by blatantly cheating every time he applied his magic liquid to the baseball.  In this world, at least, such sins can be forgiven.

In “The Year the Yankees Lost the Pennant,” the magical transformation is not the result of a strange chemical substance, but a pact with the Devil himself.  Melancholy and middle-aged, Joe Boyd is a married insurance salesman whose drab existence is made even more unbearable by the chronic failure of his beloved hometown baseball team, the Washington Senators.

In exchange for his soul, the Devil, now using the name Applegate, converts him into Joe Hardy from Hannibal, Missouri, who comes across like a combination of Li’l Abner and Babe Ruth, only more handsome and an even better ballplayer.  Like Kelly, Hardy gets a tryout with his favorite major league team, and his obvious talent wins him a spot on the roster. His batting and fielding skills are unmatched, and the now inspired Senators begin the long process of catching the Yankees in the American League standings.

Boyd was not completely oblivious to the consequences of selling one’s soul to the Devil, and as a good insurance man, he manages to talk Applegate into accepting an “opt out” provision in the contract that he signs.  On a specified date, not coincidentally set by Applegate for the day before the final game of the season, Boyd can cancel the deal without any further obligations. If Joe exercises the opt-out option, Joe Hardy will immediately turn back into old Joe Boyd, but Boyd will get his soul and his freedom back.

From the beginning Joe’s plan is to outsmart the Devil by playing so well that the Senators will have clinched the American League pennant before the opt-out date, at which time he can leave the team.  This way, Joe will save his soul but still guarantee his home city and his favorite team a long-awaited championship.  Boyd, of course, underestimates the Devil, who would never have agreed to a deal like the one Joe proposed, unless he was certain that Joe would not be able to exercise the clause.

As it turns out, the Senators play spectacularly well, winning game after game with Joe in the line-up. However, the Yankees, who may have a deal of their own with Applegate, do nearly as well, and with one game to go in the season, the Senators and Yankees are tied for first place.  Naturally, the final game pits the Senators against the Yankees.   Although he wants to return to his previous life, Joe realizes that he cannot let his teammates and his fellow Washingtonians down, so he accepts eternal damnation and lets the opt out date pass, just as Applegate knew he would.

Of course, the Devil is also a tremendous Yankee fan, and he had always intended to arrange another Yankee pennant, even while snaring Joe’s soul.  Unfortunately for the Devil, Joe plays even better than Applegate thought possible, and the Senators lead the Bronx Bombers by one run going into the 9^th inning with Applegate in the stands.

With two outs and the potential tying and winning runs on base, a Yankee batter hits a short fly ball between the infield and the outfield which seems destined to drop in for a double that will drive in the go-ahead run.  However, from his centerfield position Joe summons up every bit of athletic energy that he possesses and lunges furiously for the ball.  When it becomes obvious that he is going to catch the ball for the final out, the Devil, who loves the Yankees more than anything else in the universe, has no choice but to release Joe Boyd’s soul from captivity by changing Joe Hardy back into Joe Boyd.

Miraculously, the transformation of Joe Hardy back into Joe Boyd, with his 40-something-year-old insurance salesman body, does not prevent him from catching the ball.  In one glorious moment, he beats the Devil at his own game, and in doing so, he preserves both his soul for all eternity and wins the pennant for the Senators.  With the ball still in his glove he runs directly to the Senators dugout, where he sheds his uniform and slips back into his former humdrum life before his teammates and the reporters can catch up to him.

As with Vernon Simpson, the reader identifies with Joe’s dreams of athletic glory and breathes a sigh of relief when he narrowly escapes the fires of Hell.  Little attention is paid to the question of whether it was really fair for a supernaturally enhanced being like Joe Hardy to play baseball with ordinary humans inhabiting ordinary, albeit athletically talented, bodies, or if a championship won under such circumstances really means very much.

The final example is the comic book story, “Goliath of the Gridiron,” which first appeared in the Dec. 1962/Jan. 1963 edition of DC Comics’ The Brave and the Bold magazine.  The story was part of the legendary “Strange Sports” series and was reprinted in comic book anthologies in 1968 and 1970.  The story has, over the years, developed a cult following.

In the opening panels of the story, Jim Spencer is an outstanding botany and agricultural science student at Hartnell A&M University.  His problem though is that he does not want to be a highly regarded young scientist, he wants to be a star running back on the college football team, which, incidentally, is coached by his father.  However, unlike the star players that his female classmates swoon over, Jim has a scrawny build and no discernible athletic talent.

One evening, while looking in the forest for nutrient-rich potting soil, Jim comes upon a patch of eerily glowing dirt near where a meteorite had earlier landed.  Jim digs up the soil, takes it back to his lab, and plants a number of berry-yielding plants in it.  The next day, to Jim’s surprise, the plants have grown enormously and are already sprouting unusually large berries.   Putting two and two together in the style of the scientist-adventurer of mid-20^th century American popular culture, Jim realizes that if he eats some of the berries, they are likely to have a similar effect on his body.

Voila.  The next morning Jim is a Charles Atlas look-alike, and though his parents hardly recognize him, Jim convinces his father to allow him to try out for the college football team. With his newfound speed and strength, Jim impresses his father so much that he is quickly inserted into the starting lineup.  Although it obviously helps if your dad is the coach, his father’s confidence is quickly rewarded as Jim scores seven touchdowns in his first game.

Similar performances follow, and Jim is quickly the most popular man on campus and has attracted the attention of the gorgeous blonde, Betty Craks, the girl after whom he had long lusted.  Other stellar performances follow, but Jim begins to notice that his strength and speed, if not his physique, are starting to erode.  When he returns to his lab after a several week absence to ingest more berries, he finds that all of the berry plants have died, apparently from inattention.  Efforts to start new plants in the same soil produce no results, and a return to place where he had found the special soil several weeks earlier revealed that the glowing dirt had been washed away by subsequent rains.

Hoping to conserve his strength and energy so that it would last for the remainder of the season, Jim switches from halfback to quarterback because he finds passing less exhausting than running the football.  Although the spectacular quality of his performance drops a bit, he proves to be an able quarterback, and the team reaches the season ending game against State University with an unbeaten record.  Jim believes that he has just enough strength and energy left for one more game, if he paces himself.

However, on his way to the stadium on the day of the big game, Jim notices a young boy inattentively playing in the road in the path of a speeding automobile.  Jim dives for the young boy and knocks him out of harm’s way, but in the process, he breaks his own ankle.  Undeterred, instead of going to the hospital, he hobbles to the game.

The ankle clearly slows him down, and by the time that he arrives at the game, time has expired with Hartnell trailing State by a score of 7-6.  However, his teammates have just scored a touchdown, and Coach Spencer has courageously ordered the team to attempt a game-ending two point conversion. Depending of the result of this one last play, Hartnell will or won’t end the season as undefeated champions.

Jim convinces his father to insert him into the game, and even though he has to limp to the line of scrimmage, the State eleven are certain that the football is going to be given to the famous “Goliath of the Gridiron.”  Jim fakes an end run, but as the defenders converge on him, his teammate who actually has the ball runs into the end zone with the winning score.

In the final scene of the story, Jim has reverted back to his original nerd, agricultural scientist condition, but his girlfriend Betty, awed that Jim would risk his own life and football career to save a young boy, decides to stay with him even though his days as a football star are over.

Here again, the reader applauds the protagonist for his courage (and for getting the girl) and envies him for his season of football glory.  No one points out that Jim’s consumption of fruit irradiated with unknown substances from outer space was incredibly risky to his health.  Even worse, the giant berries transformed him from a 150-pound weakling into the equivalent of a comic book superhero, but Jim has failed to live up to the obligations of that newly acquired status.

Ordinarily, part of the deal that came with being a comic book superhero in the 1960’s was that principles of fairness prevented the uncommonly powerful figure from participating in ordinary athletic events.   Clark Kent never went out for the Smallville High School football team, and the original Flash gave up his athletic career after his first game with super speed when he realized that it would be unfair for him to compete against ordinary slow-footed mortals.  Jim, however, denied this implication of his new powers and went out for the team where he seemed to have no objection to running up the score against his outmatched opponents.

So, why do we root for the Vernon Simpsons, Joe Boyds, and Jim Spencers of fiction, cheaters all, when at the same time we hurl brickbats at steroid users like Barry Bonds, Alex Rodriquez, Sammy Sosa, and, perhaps, Ryan Braun?

The answer lies in the fact that our three fictional heroes only turned to the Devil, wood repellent liquid, and radioactive berries after it had become painfully clear that each had been denied by nature that most prized of qualities—athletic ability—and through no fault of their own.  Their actions were merely remedial.  The three men simply took advantage of the opportunity to use somewhat unconventional means to correct one of Mother Nature’s unfortunate injustices.  In doing so, they link themselves to their audience, which is full of people who have dreamed of the same transformative good fortune and who imagine that they would have made exactly the same decision had they been in the shoes of these characters.

But when Bonds, Rodriquez, Sosa, and, perhaps, Ryan Braun—men who are by nature unusually gifted athletes–turn to performance enhancing substances to make themselves even greater performers than they already are, they are engaged in a different kind of cheating.  Mother Nature was kind to them, but by trying to go beyond their already good fortune, they seek only to enhance an advantage that they already have over most of their former admirers.  By choosing to do this, they further distance themselves from the mass of humanity and from our sympathies.

The fictional Vernon, Joe, and Jim were everymen, and we share their triumphs and failures, because they are like us; Barry, Alex, and Sammy are athletic royalty who should have been content with the God-given natural talent they already had.  Instead, they broke rules because they wanted more. Like King Midas, their greed makes them deserving of whatever ill-fate that befalls to them.

On the other hand, if Prince Fielder departs for greener pastures this winter as expected, and if Ryan Braun spends the first 50 games of the season on the suspended list, the Brewers are going to be woefully short of great hitters this spring.  I wonder what type of deals Applegate is offering in 2012.

However, for fans of sports law (like myself), the resolution was disappointing.  Had the players’ antitrust suit gone to trial, followed by the inevitable sequence of appeals, we might finally have received conclusive answers to some of the most perplexing questions in the field of sports law.

For example, we might have learned if the “decertify/recertify the union for negotiation leverage” strategy is really a permissible alternative under U. S. labor law, and we might have found out what sorts of owner-imposed restraints could survive “rule of reason” scrutiny under the antitrust laws.  Alas, we will simply continue to argue about the proper answers to such questions until the next major disruption of the professional sports labor-management front raises a new possibility of judicial resolution.

If I had been running the NBA, I would have responded to the NBAPA’s decertification and subsequent antitrust lawsuit by declaring the lockout over and immediately opening the training camps to the now non-unionized players.  I would have then have imposed mandatory drug testing rules and an absolutely rigid, exception-free salary cap.  The cap would apply to all forms of player compensation including the costs of signing new players out of the amateur ranks.   I am confident that both a reasonable drug testing regime and a fixed ceiling on salaries would be upheld under the antitrust laws as reasonable restraints on trade necessary to maintain competitive balance.

I would not have reinstituted the player draft or any restrictions on the signing of free agents — those matters would be adequately dealt with by the salary cap and do little to assure competitive balance.

Of course, for this to work, the NBA owners would all have to be on the same page, which is unlikely. Moreover, such an approach would almost certainly have led to a reformation of the union which would likely then go on strike.  But at that point the sports law carousel would be turning again.

However, the wailing and gnashing of teeth reflects more than anything else a lack of historical awareness on behalf of the wailers and the gnashers. In reality, the history of college athletic conferences has largely been a story of instability and change and not of stability and respect for tradition.

First of all, conferences themselves have come and gone on a fairly regular basis over the history of college sports. For example, most of the major football-playing conferences of today were created in the past half-century. There are currently eleven Football Bowl Division college conferences (Division 1-A, in the previous nomenclature), and 14 Football Championship Division conferences (formerly Division 1-AA). Only three of the former and three of the later (6 of 24 conferences) existed in 1952. As late as 1974, only 6 of the 11 I-A conferences and 3 of the 14 I-AA conferences of today had yet appeared. The remaining 16 were created after 1974. Four of the 11 current FBS conferences—Big 12, Mountain West, Conference USA, and Big East football—were created in the 1990’s.

Periods of change have outnumbered eras of stability. Consider, for example, the saga of the Southern Conference.

In 1894, seven southern universities—North Carolina, Alabama, and Georgia, Vanderbilt, Auburn, Georgia Tech, and the University of the South (Sewanee)—organized the Southern Intercollegiate Athletic Association. The SIAA wasn’t so much a league as it was a sort of regional NCAA, designed to facilitate the “development and purification of college athletics throughout the South.”

By joining the SIAA, a college or university pledged to abide by the association’s rules, which initially included a ban on participation in intercollegiate athletics by faculty members and players who were not enrolled as students, a rule limiting players to five years of eligibility, and a prohibition of cash payments to players. The SIAA left the scheduling of games to individual schools, and it did not stage conference championships, other than in track and field.

The association proved to be quite popular, and its membership rapidly expanded to include schools from Kentucky and all of the former Confederate states except Arkansas. Eleven schools joined the following year (1895), and by 1922, the number of member schools in the association had reached 28. (A total of 42 schools had been members at one time or another before 1922, but 14 had subsequently withdrawn.)

However, In 1921, the authority of the SIAA was challenged when thirteen leading football schools in the South—Alabama, Auburn, Clemson, Georgia, Georgia Tech, Kentucky, Mississippi State, North Carolina, North Carolina St., Tennessee, Virginia, Virginia Tech, and Washington and Lee—organized the Southern Conference. Initially, the schools in this group which were SIAA members, which included all of the 13 except for the schools from Virginia and North Carolina, remained members of the SIAA.

However, after 1922, when the new conference added six additional schools: Florida, LSU, Mississippi, South Carolina, Tulane, and Vanderbilt, all the Southern Conference schools who were members of the SIAA withdrew from the older organization. The primary impetus for the withdrawal was a clash between larger and smaller schools (measured by the size of their athletic ambition) over athletic eligibility rules, especially as they applied to freshmen. The SIAA continued to operate until 1942, but for its last 20 years it was essentially as an umbrella association for smaller Southern colleges.

Like the SIAA, the Southern Conference operated in the 1920’s more as an association of like-minded schools than as an integrated sports league. By the end of the decade, the number of schools in the conference had increased from 19 to 23 with the addition of the University of Maryland, Sewanee, VMI, and Duke.

However, as the emphasis shifted from common agreement as to the rules governing college sports to championship competition, the 23-school conference proved to be somewhat unwieldy. In 1932, twelve members from the lower South withdrew to form a new league known, then and now, as the Southeastern Conference. (This group included Georgia Tech and Tulane as well as all of the 2011 members of the Southeast Conference, except for South Carolina and Arkansas.) That same year, tiny Sewanee also dropped out of the Southern Conference, leaving it with a presumably more manageable 10 members.

However, still wedded to the idea of an association of like-minded colleges who did not need to necessarily compete against each other in every sport, the Southern Conference refilled its depleted roster in 1936 by adding seven new members drawn from the ranks of smaller schools. George Washington, Richmond, William and Mary, Davidson, Wake Forest, Furman, and the Citadel, temporarily raised the number of schools in the conference to 17, and made the conference one of schools located in the upper South.

However, the University of Virginia withdrew from the conference the following year, but after that membership became more stable, and from 1937 to 1950, the Southern Conference operated as a 16-team league/association.

Instability returned in the 1950’s. First, the conference increased its number of members back to 17 when the West Virginia University was added to its roster in 1950. Then, in 1953, the conference split apart for a second time when seven members—Maryland, North Carolina, Duke, Wake Forest, North Carolina State, South Carolina, and Clemson withdrew to form the Atlantic Coast Conference (along with former Southern Conference member, the University of Virginia). That same year, Washington and Lee also decided to de-emphasize football (and ultimately withdrew from the Southern Conference in all sports in 1958), reducing the Southern to a nine school league.

This time, the conference chose not to admit new members, and after the 1953 defections, the conference began to operate as a more conventional (in the late 20th century sense) athletic conference featuring round-robin play and regular championships. The league did not expand again until 1964, when it added East Carolina University, a move which brought the number of football playing schools to ten.

Unfortunately for the status of the Southern Conference, the late 1960’s and 1970’s saw a significant amount of attrition. Virginia Tech, the last original member, withdrew from the conference in 1965, and West Virginia followed suit in 1968. George Washington, Richmond, and William and Mary departed in 1970, 1976, and 1977, respectively.

The departing members were replaced, typically by smaller southern universities who were not traditionally associated with big time athletics. When the NCAA Division I was divided into Division 1A and Division 1AA (for lesser schools), the Southern Conference was placed in the latter category.

The Southern Conference has continued to operate, and currently fields a roster of twelve schools, located in North and South Carolina, Tennessee, Georgia, and Alabama. One of its members, Appalachian State, which was added to the league in 1971, has achieved notable gridiron success in recent years. However, none of the original members are still affiliated. When VMI departed in 2003, it was the last school to have played in the league before the “spin offs” of the Southeastern and Atlantic Coast Conferences.

Three current members—the Citadel, Furman, and Davidson (which no longer plays Southern Conference Football)—remain from the list of schools brought into the conference as a result of the 1936 expansion. The next oldest school in terms of length of conference affiliation is Appalachian State. Long time Southern Conference fans certainly know that the only permanent thing about college football alignments is continuing change.

Even the Big Ten, the oldest college athletic conference, and for many years a symbol of stability, has had several periods in its history in which its membership fluctuated.

The conference was founded in February 1896, as a seven-member alliance that included the Universities of Chicago, Wisconsin, Illinois, Michigan, and Minnesota as well as Northwestern and Purdue Universities. Lake Forest College had been invited to join the new association and had participated in an 1895 organizational meeting, but it apparently decided not to affiliate with the other schools. The new conference was officially known as the Intercollegiate Conference of Faculty Representatives, but it was usually referred to as the Western Conference.

The Universities of Indiana and Iowa were added in 1899, and shortly thereafter the conference became informally known as the Big Nine. The University of Nebraska petitioned to join as a tenth team in 1900, but its application was denied. In 1907, the number of teams declined to eight when the University of Michigan withdrew after a dispute with other conference members over player eligibility rules. After turning down the University of Nebraska a second time in 1911, the league the returned to nine teams when it added Ohio State the following year. The number of teams increased to 10 for the first time in 1917, when the University of Michigan returned to the fold. At this point, the conference became generally known as the Big Ten (or Big 10).

The number of football teams dropped back to nine in 1939, when the one-time athletic powerhouse University of Chicago eliminated its football program. In 1946, the school withdrew from the conference in all sports, and over the next three years, the Big Nine considered several different schools for membership. The list of potential members included, according to contemporary newspaper reports, Notre Dame, Pittsburgh, Iowa State, Nebraska, and Marquette (which then had a football team that regularly played several football games a year against Big Ten teams).

Finally, in 1949, the league decided to add Michigan State as the new 10th team. Following the addition of the Spartans, the Big Ten (finally adopted as the conference’s official name in 1987) remained completely unchanged in terms of membership for the next 41 years.

It is the four decade period from 1949 to 1989 that led to the association of the Big Ten conference with stability in the minds of older fans. The next change in the Big Ten alignment came in 1990, when Penn State was invited to join as the 11th member. Nine years later, the league entered into negotiations with Notre Dame to become the conference’s 12th team, but the South Bend institution eventually withdrew from the negotiations. A 12th team was finally added in 2011, when long-time bridesmaid Nebraska was finally invited to join the league.

If one takes away the 40 years from 1949 to 1989, the history of the Big Ten has been as much about change as it has stability.

Recognition of the past doesn’t make it any easier to deal with recent developments, but it does remind us that there is nothing particularly new or unusual about what is going on right now.

LaRussa, who earned his law degree from Florida State in 1978, is one of only seven law school graduates and/or lawyers to manage in the major leagues.  The other six were John Montgomery Ward, Hughie Jennings, Branch Rickey, Miller Huggins, Muddy Ruel, and Jack Hendricks.  In addition, all seven played in the major leagues as players, though with varying degrees of success.

As a group, the seven were quite successful.  LaRussa, who managed in the majors from 1979 to 2011, managed the second largest number of games in baseball history (second to Connie Mack who owned the team that he managed) and recorded the third greatest number of victories (behind Mack and non-lawyer John McGraw).  Altogether, LaRussa’s teams won 14 division championships, six league titles (three in the National League and three in the American), and three World Series titles. 

Miller Huggins, who managed the Cardinals and the Yankees from 1913 to 1929 (the year that he died), was almost as successful as LaRussa, winning six American League championships and three World Series.  (Having Babe Ruth and Lou Gehrig on his Yankee teams may have had something to do with his success.) Huggins was a graduate of the University of Cincinnati Law School where one of his professors was future United States President and Chief Justice of the Supreme Court, William Howard Taft.

In contrast to LaRussa and Huggins, Branch Rickey managed in the major leagues from 1913-1915, and 1919-1925, with no particular success—his best teams finished 3^rd in 1921 and 1922.  However, as a club president and team general manager he was perhaps the most successful and most influential front office executive in baseball history.  As the inventor of the farm system and the first baseball general manager to sign African-American players, his teams in St. Louis and Brooklyn won eight league championships and four World Series titles.  Rickey was a graduate of the University of Michigan Law School, and as a law student, he supported himself by coaching the Michigan varsity baseball team.

Hughie Jennings, manager of the Detroit Tigers from 1907 to 1920, and of the New York Giants in 1924 and 1925, attended Cornell Law School, and while he left without graduating, he was subsequently admitted to the Maryland bar.  Although Jennings was never able to lead the Tigers or the Giants to a championship, as a player he was the star shortstop on five National League championship teams in the 1890’s, and, notwithstanding his lack of titles, he was the winningest manager in Detroit Tiger history until he was passed by Sparky Anderson late in the 20^th century.

John Montgomery Ward, who earned a law degree from Columbia while playing with the New York Giants in the 1880’s, was one of the premiere shortstops (and at the beginning of his career, pitchers) in nineteenth century baseball.  He also managed a number of the teams that he played, serving as player-manager in 1880, 1884, and 1890-1894.  Although Ward won championships as a player, none of the teams he managed ever finished at the top of the heap. However, his teams were usually quite respectable, and he did finish second four times in the seven years that he managed.

The only lawyer-managers that did not achieve great success as managers were Jack Hendricks and Herald “Muddy”  Ruel.  Hendricks, who received his law degree from Northwestern, managed the St. Louis Cardinals in 1918 (between stints by fellow lawyers Huggins and Rickey) and the Cincinnati Reds from 1924 to 1929.  His best season came in 1926, when his Reds finished in 2^nd place, behind the St. Louis Cardinals.

Muddy Ruel’s career as a major league catcher extended over a 19-year period during which he was widely regarded as one of the top defensive catchers in the game.  However, his service as a manager was relatively brief, lasting only for one year, 1947, when he managed the St. Louis Browns to a last place finish.  Although 1947, was his only year as a manager, he spent many years in the major as a coach, and he ended his career in baseball as the general manager of the Detroit Tigers in the mid-1950’s.

The success of the lawyer-managers has not gone unnoticed.  Four of the seven lawyer-managers (Huggins, Rickey, Jennings, and Ward) are already in the baseball Hall-of-Fame, and Tony LaRussa will clearly join them once he becomes eligible for induction.  (Technically, only Huggins was elected to the Hall as a manager; Rickey was chosen as an executive; and Ward and Jennings went in as players.)  Jack Hendricks’s .496 winning percentage as a manager and .207 batting average in his two major league seasons translate into a 0.0% change of ever being elected to the Hall of Fame.  Although Ruel was recognized as an outstanding defensive player who specialized in throwing out baserunners trying to steal, he seems unlikely to ever be elected to the Hall of Fame.  While his career .275 batting average was quite respectable for a catcher who played from 1915 to 1934, his four home runs in 19 years hardly shout out “Hall of Fame,” even though he did finish in the top 11 in American League Most  Valuable Player voting on three occasions

Given their lengthy careers in baseball, most of the lawyer-managers spent little time actually practicing law.  There is little evidence that Rickey, Huggins, Jennings or LaRussa spent any significant amounts of time in the courtroom or the law office.  However, after his playing days Ward went on to a long, successful career as a New York City lawyer, often representing figures in the sports industry.  Hendricks apparently did the same, and also appears to have worked as a lawyer in the off-season during his playing career which was mostly spent in the minor leagues.

Although Ruel was the least successful manager of the lawyer-managers, the Washington University Law School graduate may well have been the best lawyer of the group.   His legal acumen led Baseball Commissioner and former United States Senator Happy Chandler to appoint him as his chief assistant in 1946, and Ruel  was apparently the only one of the seven lawyer-managers ever admitted to practice before the United States Supreme Court.

On a final note, it is interesting that five of the seven lawyer-managers managed in St. Louis, directing either the Cardinals (Huggins, Hendricks, LaRussa), or the Browns (Ruel), or both (Rickey).  Apparently St. Louis is a good town for both baseball and lawyers.

Marquette law students have gone on to careers as major league athletes and coaches; Marquette law graduates helped create the category of sports lawyer, and Marquette law professors have played important roles in the sports industry and in the creation of the academic discipline of sports law. And this was all before the Second World War.

Early in its history, when admission to the law school required less than four years of college, many Marquette law students competed on Marquette varsity sports teams, and a number of these ended up playing in the National Football League—including Green Bay Packer Hall-of-Famer LaVern “Lavvie” Dilweg, and fellow-Packers Larry McGinnis and Biff Taugher—and in the predecessor to the National Basketball League—including Frank Zummach (as a coach) and Ed “Boops” Mullen (as a player). Paul Robeson, who was never officially enrolled in the law school, reportedly studied with a Marquette law professor while playing for the NFL’s Milwaukee Badgers in the 1920’s, before he embarked on his better known careers in music, theater, and politics.

Future Congressman Ralph Metcalfe was a world class sprinter and an Olympic medal winner who also was enrolled in the law school in the 1930’s. And who can forget former Marquette law student and Hollywood actor Pat O’Brien? As a student, O’Brien unsuccessfully sought a spot on the Marquette football squad but later achieved a form of sports immortality by playing the lead role in “The Knute Rockne Story,” the film biography of the great Notre Dame football coach.

Raymond J. Cannon, a 1914 Marquette Law School graduate and a United States Congressman from 1933 to 1939, was arguably the first American lawyer to develop a sports-specific law practice, which he did in the late 1910’s and 1920’s. Cannon, also a star semi-pro baseball pitcher in Wisconsin from 1908-1922, was most famous for representing several of the so-called “Black Sox”–a group of eight Chicago White Sox players permanently expelled from Organized Baseball because of their involvement with efforts to fix the 1919 World Series–in their effort to recover unpaid salary and seek reinstatement.

Sympathetic to the plight of professional baseball players, whose occupational liberty he believed was unfairly restrained by the reserve clause, Cannon also attempted to organize a professional baseball players’ union. Called the National Baseball Players Association, Cannon’s organization was founded in 1922, while he was still much involved with the representation of the Black Sox.

Although many players from both the National and American leagues initially expressed enthusiasm for Cannon’s idea, few joined the new association, and the organization folded in 1924. Cannon’s simultaneous involvement with the Black Sox litigation and his continued representation of several of the group in the early 1920’s probably did not help matters. Most major league baseball players of that era were intimidated by the ruthlessly authoritarian tactics of baseball commissioner, Kenesaw Mountain Landis (a former Marquette Law School lecturer, discussed below), who appeared willing to ban players for life, even on the suspicion of association with gamblers.

After his involvement with the Black Sox cases ended, Cannon continued to represent legendary outfielder Shoeless Joe Jackson on a variety of matters for the remainder of his (Jackson’s) life.

Cannon’s sports-related practice also extended to boxing. In 1918, he began to work with Chicago boxing promoter, Tom Andrews, and did the legal work for a number of championship prize-fights, including Jack Dempsey matches with Fred Fulton, Jess Willard, and the Frenchman Georges Carpentier. In the early 1920’s, Cannon also became Dempsey’s personal lawyer, at a time that the fighter was the heavyweight boxing champion of the world and one of the best known celebrities in the United States. Among other services, Cannon helped Dempsey escape from an unfavorable managerial contract with John J. “John the Barber” Reiser, but his lawyer-client relationship with Dempsey ended later in the decade when he sued Dempsey for $20,000 in unpaid legal fees.

Cannon’s son, Robert C. Cannon, who graduated from the law school in 1941, was also a major figure in American sports. After a career as Milwaukee Circuit Court judge that began shortly after World War II, Cannon, a long time baseball fan, became the legal adviser and de facto director of the Major League Baseball Players Association in 1969, when he was chosen for that position after a national search by the players’ organization. Rather than resign from the bench, which he felt he would be required to do if he took a baseball salary, Cannon served for seven years as an active, but unpaid advisor to the Players Association.

Although Cannon was sometimes criticized as too sympathetic to the interests of the baseball owners to adequately represent the players, he was popular among both players and owners. In 1965, he was seriously considered for the position of Commissioner of Baseball when existing commissioner Ford Frick retired. Cannon eventually lost out to retired Air Force General William Eckert for the Commissioner position, but in 1966, he was offered and accepted the new post as full-time director of the Major League Baseball Players Association at a salary of $150,000. However, shortly after indicating he would be happy to accept the position, Cannon had second thoughts about leaving Milwaukee and his circuit court judgeship, and even though the Players Association offered to move its offices to Chicago, Cannon withdrew his acceptance. Having lost out on their first choice, the Players Association then turned to Marvin Miller. The rest, as they say, is history.

Marquette faculty members were also connected to the sports industry. The above-mentioned Kenesaw Mountain Landis taught at Marquette Law School as a lecturer in 1909 while he was a federal judge in Chicago. (He would not become Commissioner until 12 years later.) When current Commissioner Alvin “Bud” Selig joined the Marquette faculty this year as a Lecturer in Law, he filed a slot held 102 years earlier by his famous predecessor in his day job.

Elmer W. Roller, a 1923 graduate of Marquette Law School and a full-time Marquette law professor in the late 1920’s and 1930’s, suddenly became known to baseball fans all over the United States in 1965 when he almost kept the Milwaukee Braves from leaving town. (The new owners of the Braves had announced at the end of the 1964 season that they planned to be playing in Atlanta, Georgia, as early as 1966.)

As a Milwaukee County Circuit Court Judge, Roller ruled that the team’s planned relocation to Atlanta violated the Wisconsin Antitrust Act in a way that warranted injunctive relief. Roller ordered the National League to keep the Braves in Milwaukee or else replace them with another team. Unfortunately for Brew City baseball fans, Roller was subsequently overruled by the Wisconsin Supreme Court, and that decision was left standing by the United States Supreme Court in 1966.

Finally, the discipline of academic sports law really begins with two articles on the law of sports published in the Marquette Law Review in 1940 by legendary Marquette Law Professor, Carl Zollman. Although articles on the law of sports had been previously published in legal periodicals targeted to practitioners, these were the first two “academic articles” addressing sports law issues to appear in a law-school sponsored law review.

As I wrote in an earlier profile of Zollman:

Zollman’s final two law review articles, both of which appeared in the Marquette Law Review in 1940, were entitled “Baseball Peonage” and “Injuries from Flying Baseballs to Spectators at Ball Games.” The first was a study of baseball labor relations which focused on the restrictive nature of Organized Baseball’s reserve system, which Zollman actually thought was reasonable, and the second was an early examination of one of the classic problems in sports law. The two articles, particularly the first, reflect a detailed knowledge of the structure and history of professional baseball and suggest that Zollman must have been a long-time fan.

Given this history, it was entirely appropriate that the National Sports Law Institute was established at the Marquette Law School in 1989. It is too bad that so little of this history is currently acknowledged by the law school or the sports law program. Unfortunately, law schools tend to have short memories.

This was, of course, not always the case. Until 1996, all Major League Baseball post-season play-off games were on free television. That year, ESPN won the right to broadcast any first round play-off games not aired by NBC or FOX, then Major League Baseball’s primary broadcast partners. Since that time, the number of play-off games on pay television has been steadily creeping upward.

In Australia and in many European countries, the local equivalent of Major League Baseball’s playoff games would be required by law to be broadcast on free television. Called anti-siphoning statutes, these laws dictate that certain sporting events must be made available for broadcast on free, open-air stations, if they are broadcast at all.

In Australia, for example, every regular season and play-off match played in both the Australian Football League Premiership (Australian Rules Football) and the National Rugby League—the country’s two most popular sports leagues—are on the anti-siphoning list. On the list as well are a host of other sporting events, many of which take place outside of Australia, ranging from the FIFA World Cup to the U.S. Masters Golf Tournament to all test matches played by Australia’s senior representative cricket team.

In the European Union, the 2007 Audiovisual Media Services Directive encourages individual members to adopt similar protected lists, and guarantees legal immunity from any other EU rule or regulation that might arguably apply. Such guarantees exist in a variety of European countries, including Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy, and the United Kingdom.

The failure of Arab countries to adopt such statutes meant that the vast majority of Arab citizens were not able to watch, at least legally, the 2006 World Cup, because the exclusive broadcast rights were sold to a single satellite broadcaster that charged exorbitant rates for its signal. (I have written about this issue in some detail in an article entitled “The Over-Protection of Intellectual Property Rights in Sport in the United States and Elsewhere” that appeared in the Winter 2011 issue of the Journal of the Legal Aspects of Sport.)

Almost twenty years ago the United States Congress expressed concern about the migration of high profile sporting events to pay television when it adopted the Cable Television Consumer Protection and Competition Act of 1992, which authorized the FCC to study the issue. To date, most of the major sporting events in the United States—the World Series, the NCAA Final Four, the NBA Finals, and the Super Bowl—remain on free television, but that may soon change.

In recent years, a variety of popular sporting events have been shifted to pay television, including most of the races constituting NASCAR’s Chase series, early round play-off games in the NBA and NHL, as well as Major League Baseball, two of the four tennis majors, and one of golf’s four majors. Moreover, last year the BCS championship game was, for the first time, broadcast exclusively on cable television (ESPN), and will be for the foreseeable future.

That there has not been more uproar over the recent shifts may reflect that fact that an estimated 75% of the United States population now has access to basic cable or satellite television, placing those of us who do not in a distinctively minority position.

Furthermore, whether an American anti-siphoning law could withstand First Amendment scrutiny is an interesting question. Early on in the history of cable television in the United States, the FCC issued a draconian guideline that essentially prohibited cable television broadcasters from airing any live sporting events at all (as well as prohibiting original programming not first shown on free television). This rule was struck down by the D.C. Circuit Court of Appeals in Home Box Office v. FCC, 567 F.2d 9 (D.C. Cir. 1977), but that directive was far more restrictive than any modern anti-siphoning statute, all of which permit the simultaneous broadcasting of events on free and pay television. However, given the solicitude shown for commercial speech by the current United States Supreme Court, the fate of such legislation is hard to predict.

As a baseball fan, I feel aggrieved by not being able to watch the Brewers games on free television. However, so far I do not feel aggrieved enough to subscribe to cable television or, for that matter, to complain to my Congressman. For the time being, I will just have to root for the Brewers to make it to the World Series, which, thankfully, is still on regular television.

Davis reached the pinnacle of American sport even though he possessed neither great athletic ability nor access to financial resources. Born in Brocton, Massachusetts, Davis spent his childhood and adolescence in Brooklyn, and his voice never lost its New York edges. After finishing Erasmus High School in Brooklyn shortly after the end of the Second World War, Davis entered Syracuse University hoping to play either football or baseball. His lack of success on the playing fields prompted him to transfer to Wittenberg University in Springfield, Ohio, but after a year there, he transferred back to Syracuse where he played on the junior varsity football team and sought unsuccessfully to land some sort of coaching or managerial position with the varsity.

After graduating from Syracuse with a degree in English in 1950, Davis relied on New York connections to land a job as an assistant football coach at Adelphi University on Long Island, and for the rest of the 1950’s, he travelled from one assistant coaching job to another, putting in time at Adelphi, the U.S. Army base at Ft. Belvoir, the Citadel, and at the University of Southern California where he helped coach the offensive line.

His big break came in 1960 when former Los Angeles Rams head coach (and fellow Jew) Sid Gillman tabbed Davis to be part of his staff with the Los Angeles Chargers of the newly organized American Football League. Davis stayed with the Chargers when they moved to San Diego the following year, but he left the team in 1963 to assume the position of head coach and general manager of the league’s hapless Oakland Raiders.

Only 33 years old and a head coach for the first time in his career, Davis led the Raiders to their first winning season ever and was named the AFL’s Coach of the Year.

In April, 1966, the AFL league owners chose Davis as the league new commissioner, following the resignation of original commissioner, Joe Foss. Immediately upon assuming office, Davis launched a raid on the rosters of the rival National Football League, and signed a number of the senior league’s star players to future contracts with the AFL. (Included among those signing AFL contracts in 1966 were seven of the fifteen starting quarterbacks in the NFL and Chicago Bears star tight end, Mike Ditka.) Davis’ aggressive policies helped prompt the NFL owners to propose a merger of the two leagues, an offer that the AFL owners willingly accepted.

After the merger agreement was signed, Davis stepped down as commissioner (after a term of only four months), and returned to the Oakland Raiders. In addition to reassuming his duties as General Manager, he also purchased a 10% ownership share in the team, making him one of three owners. In 1972, he cleverly ousted managing partner F. Wayne Valley (who had originally hired Davis as coach and general manager after the 1962 season) and took over control of the team. He remained the team’s managing partner for the rest of his life, even though he did not become the majority owner until 2005.

During his tenure, the Raiders had the best overall record in professional football. His team played in five Super Bowls, winning three times (1976, 1980, 1983), and losing twice (1967 and 2002). For his accomplishments with the Raiders, Davis was inducted into the NFL Hall of Fame in 1992.

Davis’ greatest contribution to “sports law” came in 1980, when he filed an antitrust lawsuit against his fellow NFL owners when they refused to permit him to relocate his team from Oakland to Los Angeles. Davis prevailed, and while he eventually returned the team to Oakland, he helped establish that the NFL was not a single entity for antitrust purposes (a holding confirmed by the Supreme Court in its recent American Needle decision).

The Raiders lawsuit also made it clear that the internal rules of a professional sports league could be challenged on antitrust grounds by a dissenting team owner, even if they were adopted by procedures agreed to by the disgruntled owner at the time that the team was acquired.

Since the Raiders case, all professional sports leagues in the United States (except for the antitrust-exempt Major League Baseball) have had to operate with the specter of antitrust litigation hanging over their heads when they deal with non-cooperative owners.

An even greater contribution might have been the one that Davis tried unsuccessfully to advance in 1966 when he was the AFL Commissioner.

It has been a fact of life in the history of American teams sports that there are almost never competitor major leagues in the same sport. Although there have been many efforts to establish competitor major leagues, the upstart leagues either fold—like 19th century Union Association and Players League, the Federal League, the first three American Football Leagues, the World Football League, the United States Football League, the XFL, the National Basketball League, the American Basketball Association, and the World Hockey League—or else they merge with the existing league—as in the case of the 19th century American Association, the American League, the All America Football Conference, and the National Basketball League.

The one league that seemed capable of continuing on an independent course was Davis’ American Football League. By 1966, the league was approaching parity with the NFL on the playing field and with a television contract with NBC providing the league with financial security, it could have continued to operate as an independent entity. This was Davis’ intention when he took the reins as commissioner, and he resigned when he learned that the league’s owners had negotiated a merger agreement (and an antitrust exemption from Congress) behind his back.

Had Davis’ had his way in 1966, the major North American sports leagues might not have developed into the monopolies that dominate the sports landscape in the present day.

Davis was also completely indifferent on matters of race, ethnicity, and religion. He was one of the first general managers to draft large number s of players from historically black colleges, and he was the first general manager in the modern era to hire an African-American head coach (Art Shell, 1989) and the first to hire an Hispanic for that position (Tom Flores, 1979).

Wherever Davis has ended up in the hereafter, it is a good bet that he is still using the motto, “Just win, baby” and that he is still scheming for ways to improve the fortunes of his beloved “Raiduhs.”

For what it is worth, the team did win its first game in his absence, a 25-20 triumph over the Houston Texans.

Of course, college football suffers from inequality at its very foundation. Teams are expected to compete on the same field despite rules that formally make it easier for some of them to win championships. Apologists of the system say that it favors the Chosen Teams because of their merit. But the apologists fail to recognize that this merit is a product of systemic favoritism rather than inherent qualities. The Chosen Teams from the so-called “BCS conferences” certainly are better, on average, than those that are not—they attract better athletes, and have more resources with which to develop the latent abilities of those athletes, including better coaches, training staffs, and facilities. But these teams were not born with this tendency for superiority—it came from somewhere. And that “somewhere” is rule inequality. By making it easier for the favored schools to win championships, the rules encourage the best high school athletes to attend those schools. With better athletes, championships are even more likely. And with championships comes the resources with which to continue to attract all of the best athletes, coaches, and staff. It’s a self-perpetuating cycle founded on unequal treatment.

I hold an ambivalent angst toward this system. The system is unfair and seems to warrant an asterisk in attributions of greatness to any of the Chosen Teams. But it is also part of what makes college football so exciting. Without de jure inequality, games like Boise State versus Oklahoma, Utah versus Alabama, and—dare I say—TCU versus Wisconsin wouldn’t have been so entertaining and even cathartic. Bereft of the little guys that occasionally beat the odds, an athletic world with perfect rule and resource equality may even be a little boring. So I will look forward to tomorrow with excitement and ambivalent angst—excitement for my team, and ambivalent angst about a system of formal inequality that is both unfair and, precisely because of its unfairness, thoroughly enjoyable when the little guys win.

“The Selig Center for the Archives of Major League Baseball Commissioners will ensure a permanent home for the documentation and preservation of the Office of the Commissioner’s contributions to baseball history,” said Jane Forbes Clark, Chairman of the National Baseball Hall of Fame and Museum’s Board of Directors. “This archive will provide a central location for the study and research of the importance of the Office of the Commissioner, and its role in shaping and advancing the National Pastime for nearly a century.” The new, permanent addition to the Hall of Fame Library features a private research space that celebrates the role of the Office of the Commissioner and pays tribute to the nine Commissioners who have guided Major League Baseball since Kenesaw Mountain Landis was named the game’s first Commissioner in 1920 (Landis lectured at Marquette Law School while serving as a federal judge in Chicago prior to being appointed Baseball Commissioner). The Center features historical documents from important moments in the tenures of Baseball’s nine Commissioners, along with a conference center and work space for research and archival study.

“I am deeply touched by the dedication of the Allan H. (Bud) Selig Center for the Archives of Major League Baseball Commissioners at the National Baseball Hall of Fame and Museum, an institution I revere,” said Commissioner Selig. “Two of the great passions throughout my life have been baseball and history, and this new space will celebrate the game’s unparalleled tradition and provide dignitaries and scholars with remarkable resources to complement their research about our great game.”

The story begins with Frank McCourt’s purchase of the Los Angeles Dodgers in January 2004 after a failed attempt to purchase his home town team, the Boston Red Sox.  Soon thereafter, he and his wife Jamie headed out to the “Wild Wild West.”

And for the first few years of the McCourts’ ownership of the team, the prospects looked good.  In October 2004, the Dodgers won the National League West but lost the Divisional Series.  Frank, as the Dodgers’ Chairman, named Jamie president of the team in August 2005.  In October 2006 the Dodgers played in the National League Divisional Series, losing to the Mets.  In March 2008, a crowd of 115,300 set an attendance record for any baseball game as they watched the Dodgers play the Boston Red Sox in an exhibition game at the Los Angeles Coliseum.  In October 2008, the Dodgers reached the National League Championship Series.  In March 2009, Frank named Jamie CEO of the Dodgers.  In October 2009, the Dodgers won the National League West, swept the National League Divisional Series, but lost in the National League Championship Series.

That same October, during the pinnacle of the Dodgers’ recent successes, the McCourts’ “California Dreamin’” came to an abrupt end as, on the eve of the NLCS, the McCourts announced their separation.  Concurrently, Frank announced that he was the sole owner of the Dodgers. Jamie refuted Frank’s announcement, claiming she had half ownership.   A week later, the Dodgers were out of the series. The day after the Dodgers’ exit, Frank fired Jamie as CEO, and less than a week later Jamie filed for divorce, ending their nearly 30-year marriage.  And with that, the “Field of Dreams” came crashing down.

The first pitch in the McCourts’ divorce trial was thrown on August 30, 2010.  In November, their marital status was changed to “divorced,” but the battle of “McCourt vs. McCourt” was just heating up as proceedings over their shared assets continued, the ownership of the Dodgers, the stadium, and the surrounding property at stake.  The Dodgers quickly transformed from being
one of the crown jewels of MLB to the crown jewel of the McCourts’ assets.  California is a community property state and under community property laws Jamie is entitled to half of Frank’s shares of the Dodgers and half of his personal assets, unless there is a written agreement to the contrary.  Frank thought he had the bases covered when he and Jamie entered into a post-nuptial marital property agreement in March 2004.  The McCourts agreed that the post-nuptial agreement placed the couple’s properties in Jamie’s name in order to protect them from creditors should Frank’s business ventures fail; however, they disagreed that the post-nuptial agreement provided Frank with sole ownership of the Dodgers.  Moreover, there were two conflicting versions of the document.  Three of the six copies of the agreement signed by the McCourts included language stating that the Dodgers were “inclusive” of Frank’s separate property and three stated that the Dodgers were “exclusive” of his property, indicating that the team was shared marital property.  Meanwhile, the attorney who drafted the agreement, from the Boston law firm Bingham McCutchen, testified during the 11-day trial that when he noticed the error in the three copies that stated “exclusive” he replaced those pages to correspond with the copies that read “inclusive.”  Both parties also employed forensic scientists to determine the validity of the agreement.  Ultimately, in November 2010, the judge in the McCourts’ divorce case threw out the agreement based on his finding that there was no requisite “meeting of the minds” to form a contract and, therefore, the post-nuptial agreement was not valid under California marital property law.  Frank argued against the call but his objections were overruled in January 2011.

The McCourts’ lavish lifestyle and alleged pilfering of the Dodgers were exposed as part of the acrimonious divorce proceedings.  For example, the McCourts own (although they are in Jamie’s name) seven properties estimated anywhere between $65 million and $84 million with a reported cost of $568,000 per month in mortgages and related expenses. They racked up a reported $6.8 million in flight expenses on a private jet in 2008 and 2009.  Meanwhile, Jamie had her own private hair stylist and make-up artist.  Then there were also the country club memberships, vacations, and expensive dinners. Most of their personal expenses were paid by the Dodgers and its various entities.  In fact, it has been alleged that the McCourts diverted more than $100 million dollars from the Dodgers to fund this lavish lifestyle.

Amid the divorce drama, the Dodgers were striking out financially.  Frank re-negotiated the Dodgers’ television rights with Fox Sports in order to work out a long-lasting solution to the Dodgers’ financial problems.  Fox’s current broadcast rights agreement expires in 2013 and provides Fox with the exclusive right of first negotiation until 2012.  On April 15, 2011, Frank presented the estimated $3 billion deal to MLB for its approval, as required.  In the midst of leveraging the broadcast rights, the Dodgers struggled to pay “The Help.”  It was able to meet its April payroll obligations with a $30 million personal loan to Frank by Fox.  It is rumored that Fox’s assistance came shortly after Fox learned that Frank put a squeeze play on it by approaching Fox’s broadcast rival Time Warner for a loan.  And since the loan was a personal loan to Frank and not a loan to the Dodgers, the loan did not have to be approved by MLB. However, after MLB learned of Fox’s loan to Frank, it seized control of Dodgers, taking over its day-to-day operations on April 20, 2011.

Back in Los Angeles Family Court, Jamie requested that the Dodgers be sold in order to maximize the proceeds and divide them accordingly.  Frank requested a ruling from the judge thatJamie had no standing to be involved in the television rights deal with
Fox.  As the motions were proceeding, Frank and Jamie reached a property division settlement on June 17, 2011, that was contingent on MLB approving the Dodgers’ television rights deal with Fox.  On June 20, 2011, the settlement was thrown out when MLB vetoed the Dodgers’ re-negotiated television rights deal with Fox.  MLB.com reported that the deal called

for an up-front payment of $385 million, with $173.5 million going to the McCourts and their attorneys.  Additionally, $80 million would have repaid debt, $23.5 million would have repaid a personal loan from Fox . . ., $10 million would be for legal fees, $10 million would have gone to the McCourts and $50 million could have gone toward a $100 million payment to Jamie if the club ultimately was ruled Frank’s property through the divorce proceedings.

In rejecting the deal, Bud Selig, the Commissioner of MLB, announced that the “proposed transaction would not be in the best interest of the Los Angeles Dodgers franchise, the game of baseball and the millions of loyal fans of this historic club.”

A week later the Dodgers were running out of cash and could not meet payroll obligations.  Instead of facing the possible takeover of the team by MLB, McCourt pinch hit and filed for Chapter 11 bankruptcy protection in Delaware on June 27, 2011.  Under MLB’s constitution, Frank may be stripped of his ownership rights by filing for such protection although it has been asserted that the bankruptcy court and its proceedings trump MLB’s rules in such circumstances.  As part of the proceedings, Frank arranged a $150 million debtor in possession financing from a hedge-fund, which arrangement was opposed by both MLB and Jamie.  The bankruptcy judge approved the arrangement on an interim basis in order to meet payroll but at a later hearing rejected it and ordered Frank to work out financing with MLB.  Earlier this month Frank and MLB agreed on a $150 million loan to the Dodgers in order to fund its operations through the end of the season.  Under the terms of the loan MLB cannot seize the team if it defaults on the loan, however, MLB did not waive any claims for past or future violations of MLB rules and regulations that the Dodgers might have, including filing for bankruptcy protection.

As the Dodgers continued to bleed red and not Dodger Blue, Frank balked on his television rights deal with Fox and announced that the Dodgers would attempt to resolve its financial crisis through the sale of its television rights with the bankruptcy court’s approval.  By selling the rights while in bankruptcy protection the Dodgers do not need MLB approval.  With this play, Frank is
essentially asking the court to abrogate the existing media rights deal with Fox prior to its expiration.  Fox filed a motion challenging the rights sale and it is expected that MLB and Jamie will do the same.

In between Frank’s maneuvering for sole ownership and control of the Dodgers and dodging financial ruin, his former law firm Bingham McCutchen preemptively filed a lawsuit in Massachusetts hoping to ward off a malpractice lawsuit.   Bingham is seeking a declaratory judgment finding that it acted within the proper standards of care in drafting the McCourts’ voided post-nuptial marital agreement and should not be liable for any losses Frank suffered.  Bingham followed that suit with a separate request for declaratory judgment from an arbitrator relying on a 2006 settlement agreement between the firm and McCourt.  That settlement agreement requires any disputes relating to Bingham’s acquisition work for McCourt related to his taking over the Dodgers be submitted to arbitration.  Earlier this month Frank’s motion to dismiss the lawsuit was heard in Massachusetts Superior Court.  In the motion Frank argued that Bingham committed malpractice and that it was forcing him to choose when and where to bring his malpractice suit.  He further argued that the lawsuit could force him to waive attorney-client privilege as
well as prejudice his other on-going legal battles.  Lastly, Frank requested that Bingham not be permitted to pursue the arbitration proceeding claiming that the 2006 settlement agreement did not cover the post-nuptial agreement.

Another lawsuit stepped up to the plate in May 2011 when the family of the Giants fan that was severely beaten on opening day filed a lawsuit against Frank, the Dodgers, and 12 other related companies owned by Frank.  The lawsuit asserts that the McCourts’ lavish lifestyle and messy divorce depleted the Dodgers of the necessary funds to operate adequately and properly which caused a drastic reduction in security staff at the stadium and surrounding parking lot and defective facilities, all of which contributed to the beating.  The lawsuit alleges nine causes of action that include: negligence, premises liability, negligent hiring, retention, and supervision, negligent infliction of emotional distress, loss of consortium, assault, battery, false imprisonment, and intentional infliction of emotional distress.  Similar to his other legal proceedings, Frank did not take a walk on this one either.  Frank and the Dodgers initially filed a motion to remove the judge assigned to the case, which motion was granted.  Next they filed documents with the court asserting that the bankruptcy proceedings should stay the lawsuit.  And, most recently, they filed a motion asking the court to strike much of the lawsuit, including any references to McCourts’ “purported financial status, assets, and lifestyle.”  In doing so Frank’s attorneys alleged that “this is a premises liability case.  It is not a corporate fraud action or shareholder derivative suit . . . [and] allegations relating to [Frank’s] finances, his use of funds, the corporate structure of his assets or his lifestyle have no place here.”

Like the sands of the hourglass, the McCourt battle drags on and truly puts them and their tenure as the owners of the Dodgers in “A League of Their Own.”  Meanwhile, the Dodgers and its fans are “The Biggest Loser” thus far.  The Dodgers are mired in the bottom of the National League West and it seems the fans no longer want to watch the implosion on the field or off it.  The Los
Angeles Times estimated that the Dodgers will lose $27 million in ticket, parking and concessions, representing a 9.4% revenue decline and about 8,000 fewer fans per game.  It appears that the Dodgers’ fans have spoken and the “The Verdict” is in.  They want the game called and the McCourts’ “L.A. Story” to be completed.  However, barring a “Miracle at Chavez Ravine” it appears that they will have “Unanswered Prayers” for the foreseeable future.

http://www.flickr.com/photos/65516705@N00/sets/72157627090971574/detail/

But was there really a team officially named the Columbus Confederate Yankees?  Would the image-conscious New York Yankees really allow one of their affiliates to have the word “Confederate” as part of its team name at the high point of the Civil Rights Movement?  Although the Yankees had originally resisted integrating their roster, by 1964, the team included a number of black players like Elston Howard, Hector Lopez, Al Downing, Marshall Bridges, Elvio Jimenez, and Pedro Gonzalez.

It turns out that there was such a team in Columbus, Georgia; the players did wear Confederate flag arm patches; but the team was never officially named the Confederate Yankees or Confederate-anything else.My research in the Google, Proquest, and NewspaperArchive.com databases leads me to conclude that the team’s official name was always the Columbus Yankees.  The vast majority of newspaper references refer to the team simply as the Yankees, as does the Encyclopedia of Minor League Baseball, which is generally careful in such matters.  (The Encyclopedia identifies the team name as Yankees for all three of its seasons.)

The Story

In 1963, the Yankees’ only AA farm team was the Augusta (Ga.) Yankees of the South Atlantic League.  However, in the following off-season, the South Atlantic League was renamed the Southern League, and the Yankees’ AA team was relocated across the state from Augusta to Columbus.

On May 4, 1964, several weeks after the start of the Southern League season, the Rock Hill (S.C.) Herald reprinted an article from the Atlanta Journal which reported: “The new Columbus ball club is called the Columbus Yankees.”   All other sources confirm that the team’s name was just the Yankees.

Where then did the name “Columbus Confederate Yankees” come from?  The uniforms worn by the new team were identical to those of the New York Yankees, except that a “C” rather than an “N” was inter-locked with a “Y.”  The new owners in Columbus apparently decided that adding a Confederate flag patch to their players’ uniform sleeves would work to enhance their local identity and counteract any negative implications that the word “Yankees” might have for the white fans of Columbus, Georgia.  It was this patch, along with the fact that a Confederate flag was flown inside the Columbus ballpark on game days, that apparently prompted fans and other observers to start calling the team, the “Confederate Yankees.”

It is not clear who coined this unofficial nickname, but baseball fans both in Columbus, Georgia and elsewhere were apparently amused by the oxymoronic sound of “Confederate Yankees” and enjoyed repeating it.  The label caught on with a handful of sportswriters as well.  For example, the May 1965 issue of Baseball Digest referred to Columbus player Ike Futch–who struck out only 9 times in two full AA seasons–as a leading hitter for the “Confederate Yankees.”  However, an August 1966 entry in the same magazine indicated that the name “Confederate Yankees” had been attached to the team by its southern white fans, who were uncomfortable rooting for a team called the Yankees, even if it was the home team.  Subsequent histories of the Southern League have mentioned the name in passing, but none provide any evidence that “Confederate Yankees” was ever adopted as the team’s official nickname.

Concern about the appeal of a team called the Yankees in south-central Georgia during the highpoint of the Civil War Centennial and the African-American Civil Rights Movement may well have motivated the decision to add the Stars and Bars to the Columbus Yankee uniforms.  The poor performance of the predecessors of the Columbus team, the Augusta Yankees of 1962 and 1963 South Atlantic League, seems to lend some credibility to this interpretation.

Fans of that Augusta team were notorious for not showing up at the ballpark.  In 1962, Augusta drew a league low season total of 39,476 fans (an average of just under 564 per game).  It repeated the accomplishment the next year when only 41,813 (606 per game) showed up, even though the Augusta Yankees won the league’s first half championship and triumphed in the post-season championship play-off.  Even though the 1963 team also featured ten future major league players on its roster, the citizenry of Augusta, who had been without professional baseball since 1958, seemed indifferent to the team’s presence.

At the end of the season, the disgruntled Yankees cancelled their affiliation with Augusta, causing the team to withdraw from the league.  Its place in the newly renamed Southern League was filled by a new franchise awarded to owners from Columbus, Georgia.  The new team quickly reached an agreement to be the Yankees AA farm team for the 1964 season.

When the new Columbus team entered into an agreement with the Yankees, it apparently had no choice other than keep using the name Yankees.  In the Yankee farm system in 1964, only AAA Richmond used its own distinctive nickname (the Richmond Virginians).  All of the other teams, no matter where they were located, were called the Yankees.  (To what extent this was forced on the teams by the Yankees is unclear.  However, this practice was not unique to the Yankees in the 1960′s, and was consistent with the widely shared belief in that decade that the best way to market minor league baseball was as providing fans in the hinterlands with an opportunity to see the major league stars of tomorrow today.)

If the new owners believed that the name Yankees had adversely affected the appeal of the team when it played in Augusta, they may have thought that the explicit use of Confederate iconography might provide a counter balance for concerned fans.

As it turned out, the Confederate flag patch may have done the trick.  Although Columbus was only slightly larger than Augusta (with a county population of 159,000 in 1960, compared to 136,000 for Augusta), the Columbus Yankees drew much better in 1964 than Augusta had in 1963, even though the team was not nearly as good.  Columbus finished the 1964 season with a losing record and tied for next to last place in the Southern League, but it nevertheless attracted 67,117 fans, good for third best in the league.  In 1965, the team finished in first place by a microscopic .001 percentage points, besting Asheville in one of the closest pennant races in minor league history. It also drew a league-leading 72,732 fans in spite of playing only 138 of 140 scheduled games.

However, the magic began to wear off in 1966, as the team tumbled back to 7th place, and attendance dropped to 48,847, still good enough for 4th place in the 8-team league, but apparently not enough to turn a profit.  Shortly after the end of the 1966 season, the Columbus owners withdrew from their working agreement with the Yankees and folded the team.

However, rather than blame their slumping attendance on the unpopularity of the name Yankees, the Columbus owners and their supports in 1966 pointed their fingers at the major league Atlanta Braves, just that year relocated to Atlanta from Milwaukee.  Most of the Southern League owners apparently felt that the league’s slumping attendance was the result of minor league fans deciding to stay home and watch their region’s first major league team play on television.

After losing their Columbus affiliate, the Yankees entered into a new agreement for a AA club with Binghamton, New York, which joined an expanded Eastern League in 1967.  The Southern League survived, but only as a six-team league with no team in Columbus, Georgia.

The question of whether the “Yankee” name adversely affected minor league baseball attendance in the South in the early 1960′s is an interesting question.  In 1964, the Yankees were on their way to their fifth straight American League championship and their 14th title in 16 years.  That year their farm system contained seven teams, all of which were located in former Confederate states:  Richmond, Va. (AAA); Columbus, Ga. (AA); Greensboro, N.C. (A); Ft. Lauderdale, Fla. (A); Shelby, N.C. (A); Johnson City, Tenn. (R); and Sarasota, Fla. (R).  That same year, the passage of the 1964 Civil Rights Act and a continuing stream of anti-segregationist United States Supreme Court decisions had convinced many white southerners that “Yankees” were destroying their way of life.  Three years later only the teams in Greensboro, Ft. Lauderdale (hardly a Deep South community), and Johnson City (in the southern mountains) remained part of the Yankee farm system.  In the place of Richmond, Columbus, Shelby, and Sarasota were Syracuse, Binghamton, and Oneonta, New York.  (The total number of farm teams had been reduced from seven to six.)

In addition to the situation regarding Augusta and Columbus, the Yankee name may have been something of a liability in Shelby, North Carolina.  In 1962, Shelby was an independent team in the four-team Class D Western Carolina League.  (It did appear to have some connections to the Yankees as its best young player, future major league outfielder Steve Whitaker, was under contract to the Bronx Bombers.)  Playing under the name Colonels, it finished last and drew only 14,753 fans in a 100 game regular season, an average of 300 per game.

In 1963, the Western Carolina League was renamed the Western Carolinas (plural) League and as part of the reorganization of minor league baseball was reclassified as a Class A league.  The number of teams in the league was doubled to eight; the season was expanded to 126 games; and each team was affiliated to one degree or another with a major league organization.  The Colonels became an affiliate of the Yankees, but played under their old name.  The team again finished in last place with an even lower winning percentage than the previous year.  Even so, attendance figures improved fairly dramatically to 34,324, an average of 563 fans per game, which while still the worst in the league was considerably better than in 1962.

In 1964, Shelby adopted the name Yankees and rose to heights of sixth place.  In spite of their improved play, the team’s attendance rose only to 34,620.  Apparently convinced that it might do better under a different name, it received permission to change its name for 1965 to Rebels, thus going from Yankees to Rebels in consecutive seasons.

The Shelby Rebels got off to a good start, and on July 7, they were alone in first place.  However, the team’s play fell of considerably after that, and it again ended the season in 6^th place.  Even worse, its attendance dropped to a league worst 22,876, and after the end of the season, the Colonels/Yankees/Rebels disappeared from Organized Baseball.  The New York team did not even bother to seek out a replacement for the Shelby club in 1966.

Of course, there were reasons other than the objectionable nature of the team name that might explain why the New York organization may have pulled away from an all-Southern farm system in the mid-1960′s.  First of all, the Yankees did not own most of their farm teams, and when the owners of the Richmond Virginians sold their team to a group from Toledo, the Yankees had no way to block the sale.  The Yankees did not pull out of Richmond; the Richmond owners did.  Toledo became the AAA Yankee affiliate until 1967, when the AAA affiliation was switched to Syracuse.

Also contributing to the dispersion was that fact that the market for minor league baseball in the South had begun to shrink, especially in Georgia, after the arrival of the Braves.  The lack of major league teams in the region had, along with the weather, made the South a prime area minor league baseball in the 1950′s and early 1960′s, but that was beginning to change.  Moreover, there were obvious savings to be had if a major league team’s minor league affiliates were located closer to the major league team (as were the three New York state affiliates in 1967).

Moreover, the practice of having multiple Southern-based minor league teams called the Yankees really only began after 1960.  The first such team was Greensboro of the Carolina League, which had previously been a Boston Red Sox farm team known as the Patriots.  When the team switched its affiliation to New York in 1958, it adopted the name “Yankees” (and thus became the first potential “Confederate Yankees”).    Playing with the name Yankees did not appear to be a handicap in Greensboro which finished in the top half of Carolina League attendance four times between 1958 and 1964 (and led the league twice).  The next two southern Yankee teams were Augusta and Ft. Lauderdale, both of which appeared in 1962.  In 1963, they were joined by the Harlan, Ky. Yankees who were replaced the following year by the Johnson City Yankees.  In 1964, they were joined by the Shelby, N.C. and Sarasota, Fla. Yankees, bringing the total to six.

Finally, by 1967, the Yankees mystique was considerably tarnished.  The major league Yankees had already slumped to last place in the American League in 1966, and there was little reason to believe that would return to the top any time soon.  The Bronx Bombers were hardly the symbol of dominant force that they had been a few years earlier, so the appeal of seeing the Yankee minor leaguers was not what it once had been.

Images of the confederate flag on the sleeves of black Yankee farmhands like Roy White and Elvio Jimenez (who played for Columbus after appearing with the Yankees in 1964) are a poignant reminder of the complex history of race and minor league baseball, but the problems that plagued the minor league Yankees in cities like Augusta, Columbus, and Shelby probably had more to do with the shaky economic foundation, and limited appeal, of minor league baseball in the 1960′s than it did with matters of race and regional bias.

Anderson and Miller point to the sports facililty lease agreement as the key legal document by which communities attempt to secure long-term commitments from their teams.  However, as the City of Seattle discovered, there are significant legal and practical impediments to enforcing these commitments.  It may be especially difficult to obtain the remedy of specific performance, i.e., a court order requiring a recalcitrant team to continue playing in a city it wishes to desert.

Anderson and Miller helpfully survey a range of non-relocation agreements that have been negotiated between different cities and sports franchises.  They identify the agreement between Bexar County, Texas, and the San Antonio Spurs as a model of a strong agreement that seems much better designed than the Seattle contract to keep a franchise in its city over the long run.  Among other things, the contract includes a liquidated damages clause that starts at $250,000,000 and declines to $106,000,000 over the term of the lease.

Kowalski was born in Brooklyn, New York, in January 1923.  His older brother Thad was a star semi-pro baseball player in Brooklyn in the late 1930’s, and Walter grew up dreaming of following in his brother’s footsteps.  Initially, it looked like he was going to do just that. 

In the fall of 1942, he signed a professional contract with the Lockport White Sox of the Class D Pennsylvania, Ontario, and New York League, more commonly known as the PONY League.  Although the Lockport team was affiliated with the American League’s Chicago White Sox, it appears that Kowalski signed with the Lockport team, rather than the White Sox.

Unfortunately for Kowalski, he was not able to begin his professional baseball career as planned in 1943.  Realizing that he was almost certain to be drafted into the military, he enlisted in the Army Air Corps in 1943, and served through the end of the 1945 baseball season.

He began his professional career in 1946 with Lockport, now an unaffiliated PONY League team called the Cubs.  Kowalski was Lockport’s starting third baseman throughout the 1946 season, and the 23-year old compiled a respectable batting record, clubbing 27 doubles, 8 triples, and four home runs while batting .254.  He showed enough in 1946 that at the end of the season, his contract was purchased by his hometown team, the Brooklyn Dodgers.

(It appears that Kowalski may have shaved a year off his actual age when he began his professional baseball career, as many baseball sources report him as born in 1924.  References to age here refer to his actual age.)

Under the reserve rule of Organized Baseball (an alliance that included both major leagues and most of the professional minor leagues), Kowalski did not have the right to become a free agent after the expiration of his Lockport contract and to sign with a team of his choosing.  Because his reserve rights had been assigned to the Dodgers, his only option for the following year was to play for the team selected for him by the Dodgers.

Under the direction of team president Branch Rickey, the Brooklyn Dodgers were locking up the services of literally dozens of promising young players in the postwar years.  With 24 different minor league teams spread Class D to Class AAA, the Dodgers operated the largest farm system in the major leagues in the late 1940’s, and the team had approximately 500 players under contract at any given time (as opposed to the 150-200 today).  Making it through such a system to the AA or AAA levels, let alone the Major Leagues, was a major accomplishment.

For the 1947 season, Kowalksi was returned to Class D where he played for the Kingston Dodgers of the North Atlantic League. Kowalski was again his team’s starting third baseman, and he blossomed into a star for the pennant winning Kingston team.  The third oldest player on the team, he flourished as a hitter, batting .318 with 11 home runs and a league leading 24 triples.  (The 24 triples were apparently the most hit by any professional baseball player in 1947, at any level of play.) 

After the end of the season, Kowalski was promoted to the Dodgers’ Pueblo, Colorado affiliate in the Class A Western League, a promotion that appeared to indicate that he would by-pass the Class C and Class B levels of minor league play.

Under the rules of that era, minor league players were subject to an unrestricted player draft held each fall.  Eligibility for the draft was determined by the number of professional seasons played and the level at which a player was currently assigned, and player who were eligible for the draft could be drafted by any other team—for a fixed fee determined by level of classification–so long as the drafting team was of a higher classification than the drafted player’s current team. 

Because Kowalski had two years of professional experience, he would have been eligible for the unrestricted draft, had he been assigned to a team in a Class B, C, or D league.  However, because Class A players were eligible for the draft only if they had three years of professional experience, Kowalski’s promotion to Pueblo meant that he could not be drafted by another team in the 1947 amateur draft, and therefore was guaranteed to remain the property of the Dodgers for the following season (unless the Dodgers decided to trade or release him). 

Kowalski began the 1948 Spring Training season with Pueblo, but before the regular season began he was demoted to the Class B Asheville Tourists of the Tri-State League.  Because minor league players were paid according to a fixed scale–$150 month for Class D; $235 month for Class C; $250 for Class B; and $265 for Class A, for example—any demotion also amounted to a cut in pay.

Unfortunately for Kowalski, while playing an exhibition game with Asheville, he seriously injured his ankle and was unable to start the season with the team.  When he was able to play, he was demoted an additional level to the Trois-Riveres Royals, the Dodgers’ Class C team in the Canadian-American League. 

As a member of the Quebec province-based Royals, Kowalski split his time between third base and the outfield while again putting together a stellar year at the plate.  He finished the season hitting a team leading .352 with 26 doubles, 12 triples, and 10 home runs.  He led the Can-Am League in base hits and finish fourth in batting average, and at the end of the season he was selected to the league’s all-star team.

At the end of the 1948 season, Kowalski was again promoted to a Class A team, this time to Greenville of the South Atlantic League.  Now that he was a three-year veteran of minor league baseball, Kowalski was eligible for the draft, but because he was on a Class A roster, he could only be drafted by a team in a Class AA or Class AAA league (or by a major league team).  In that year’s draft, none of the 16 AA, 24 AAA, or 16 Major League teams chose to select him.

For a second consecutive year, Kowalski failed to make the opening day roster of the Class A team to which he was assigned.  (The Greenville third baseman in 1949 was future major league all-star Don Hoak who would finish second in the voting for the National League Most Valuable Player in 1960.)  Instead, in 1949, Kowalski was assigned to the Newport News Dodgers of the Class B Piedmont League, a team that included seven future major leaguers.

Kowalski, now 26, was shifted to second base, but the change in position did not seem to affect his hitting as the 5’11,” 185 pound slugger came through with another exceptional season, belting out 31 doubles and 15 home runs, while batting a solid .280 in what was clearly one of the strongest Class B leagues in the country.  (The league’s six teams in 1949 included 28 players who would eventually reach the major leagues.)

Unfortunately, by 1950, Kowalski was now a 27 year old minor league veteran who was still playing in the “low minors.”  He went undrafted after the 1949 season, after again being promoted to the Dodger’s Class A Greenville team.  In 1950, he made the Greenville roster in spring training, but his opportunities were limited by a slow start as his hitting was not up to the level of his previous performances.  After 42 at bats in 17 games, he was batting only .205 with only two extra-base hits (both doubles).  At that point, he was demoted to the Lancaster (Pa.) Red Roses of the Class B Interstate league where he batted an unexceptional .257 with two home runs in 47 games.

Given that he was one of the three oldest players at Lancaster, the Dodgers at this point appear to have given up on Kowalski, and his contract was assigned to the independent Johnstown Johnnies who were mired in last place in the Class C Middle Atlantic League.  The fortunes of the Johnnies did not markedly improve after Kowalski’s arrival, but that was in no way due to the team’s new outfielder.  In 55 games with Johnstown, Kowalski tore up Class C pitching, batting .344 with 12 home runs and a .632 slugging percentage.

Presumably because of his age, Kowalski was again not drafted at the 1950 season in spite of his impressive numbers at Johnstown.  To make matters worse, the Johnstown team folded after the 1950 season.  However, Kowalski was able to catch on with another Mid-Atlantic League team, the independent New Castle (Pa.) Indians.

During his long sojourn through the lower ranks of the Brooklyn Dodgers farm system, the increasingly frustrated Kowalski had come to believe that his access to the higher minor leagues and perhaps even the major leagues had been blocked by the talent-rich Dodger organization. That was, of course, not an unreasonable view.

Between 1947 and 1950, the years that Kowalski played for Brooklyn minor league teams, the major league Brooklyn Dodgers finished in first place in National League on two occasions and finished second and third in the other two seasons.  The team’s AAA affiliate in the International League, the Montreal Royals, finished first once, second twice, and third once in their league, while the Dodgers’ other AAA team, the St. Paul Saints, won the American Association pennant in 1949 and finished only six games off the pace in 1950.  In other words, the Dodgers’ system was top-loaded with talent as well as being stocked with young, talented players in the lower minors.

Kowalski also came to believe that the Dodgers had in 1947 and 1948 promoted him to Class A teams at the conclusion of the season, not because they expected him to play at that level the next year (which they didn’t), but solely because they wanted to prevent another team from drafting him.  Had another team been able to draft him for an affordable price, Kowalski believed he would have been able to ascend the baseball ladder more quickly.

While still under contract with the Dodgers, he formally protested what he viewed as his unfair treatment by the Brooklyn club to Minor League president George Trautman, to National League president Ford Frick, and finally to Baseball Commissioner Happy Chandler.  However, neither they, nor anyone else, was willing to intervene on his behalf.  In fact, Kowalski came to fear that he had been informally blacklisted by minor league teams that were affiliated with major league organizations because of his willingness to file a complaint against his team.

It was at this point that Kowalski began to contemplate filing suit against the Dodgers and Organized Baseball.

From a purely legal perspective, the obvious course of action for someone in Kowalski’s position was to file an individual action against the Dodgers and Organized Baseball under the federal antitrust laws.  Organized Baseball was clearly a combination of independent economic actors (teams and leagues) which adopted rules that restricted the operation of the labor market in ways that would clearly be illegal in any other industry. 

Because of baseball’s reserve rule a team could always “reserve” the services of a current player for the following year, and no other team within Organized Baseball could bid for the services of that player, even if his contract had expired.  Even players who signed with teams not affiliated with Organized Baseball faced the prospect of being blacklisted from ever playing in Organized Baseball again.

The problem with filing such a claim was the fact that almost thirty years earlier (in 1922), the United States Supreme Court had ruled in the Federal Baseball case that baseball competition was not a form of interstate commerce and thus not an activity to which the federal antitrust laws applied.  However, the United States Second Circuit Court of Appeals had recently (in 1949) ruled that the Federal Baseball decision was no longer binding because of changes that had occurred  since the early 1920’s in both the baseball industry and in the Supreme Court’s understanding of the meaning of the United States Constitution’s Commerce Clause.

The Second Circuit ruling had come in a case involving former New York Giants outfielder Danny Gardella who had challenged Major League Baseball’s decision to blacklist him for playing in the independent Mexican League.  Gardella had left the New York Giants after the expiration of his contract following the 1945 season and had signed a new contract with a professional team in Mexico. 

Under baseball’s private rules, this could be done only if Gardella’s previous team, the Giants, waived its right to renew his services.  If he joined a team outside of Organized Baseball without the permission of his previous team, he could be forever barred from playing for any Organized Baseball team in the future.

Gardella’s case had been argued by New York lawyer Frederic Johnston, and after his victory before the Second Circuit, he had settled his case with Organized Baseball before the 1950 season for money damages and the reinstatement of his eligibility.  The settlement notwithstanding, Gardella’s case obviously had implications for players like Kowalski who felt that they were stuck in the minor leagues because of the restrictive labor rules of Organized Baseball..

The first post-Gardella lawsuit by a professional baseball player was filed in April 1951 by minor league pitcher Jim Prendergast.  Prendergast’s career as a minor league pitcher had begun in 1936, and except for four years in the military during World War II and three months with the 1948 major league Boston Braves, his entire regular season career had been spent in the minor leagues. 

At the end of the 1950 season, Prendergast’s team, the Syracuse Chiefs of the AAA International League, insisted that he take a pay cut for the 1951 season—unlike players in the low minors, some AAA players were able to negotiate their own individual salaries.  However, when Prendergast refused to sign the new contract the team offered him, Syracuse traded him to the Beaumont Roughnecks of the AA Texas League.  Under minor league salary rules, the transfer to a lower classification team which would have automatically required Prendergast to take a further pay cut.  When Prendergast refused to report to Beaumont, he was placed on the Organized Baseball blacklist.

At the same time, New York lawyer Frederic Johnson, having second thoughts about Gardella’s settlement, was looking for other players who were willing to challenge the labor practices of Organized Baseball in court, and it was only a matter of time until he and Prendergast found each other.  In late April, Johnson filed an antitrust action on Prendergast’s behalf in federal district court in Syracuse.  The complaint requested $150,000 in damages ($50,000 in actual damages, multiplied by three pursuant to the treble damages provisions of the antitrust laws).

The following month a similar lawsuit was filed suit in federal court on the west coast by a New York Yankee farmhand, pitcher George Toolson, who was represented by a Santa Barbara, California law firm.  Like Prendergast, Toolson wanted to be able to negotiate his own deal with a team of his own choosing, and he too filed an antitrust action against the major league New York Yankees, the team that held his reserve rights, the Pacific Coast League (in which he wished to play), and the minor league teams in Los Angeles and Hollywood which had refused to negotiate with him because his rights were held by the Yankees.  

More specifically it was the Yankees decision to demote him from AAA Newark to Class A Binghampton that prompted him to file suit against his employers that claimed antitrust damages of $375,000.

Toolson, like Kowalski, was a career minor leaguer who had never played in the major leagues, but unlike Kowalski, Toolson had spent almost his entire professional career playing at the highest level of the minor leagues (as had Prendergast).  After debuting in 1942 as a 19 year old Boston Red Sox minor leaguer, he had, with two years off for military service, pitched the next six years at the AAA level.  Like Prendergast, he faced a substantial pay reduction if he accepted the assignment to a lower league.

The same month that Toolson filed his lawsuit in federal court in California, Cincinnati lawyers Maurice H. Koodish and Morse Johnson filed a separate antitrust suit in federal court in Cincinnati on behalf of Jack Corbett.  Corbett was not a player, but was the owner of a minor league team in El Paso, Texas, who had been blocked by Organized Baseball when he tried to sign former Mexican League players after a Mexican labor court had ruled that the Mexican League’s reserve clause was illegal under Mexican law. 

In order to make peace with the Mexican League and to prevent future player raids like the one that snared Danny Gardella, Organized Baseball had agreed in 1949 to honor the reserve clause in Mexican League contracts.  When Corbett signed four Mexican League players, he was threatened with expulsion from Organized Baseball.  In his lawsuit, he claimed $100,000 in damages which, when trebled, totaled $300,000.

Corbett’s lawsuit was filed in Cincinnati because it was the headquarters of Major League Baseball and the location of the office of Commissioner Happy Chandler.

With these examples before him and seeing no future for himself within the ranks of Organized Baseball, Kowalski contacted Corbett’s lawyer Maurice Koodish. In June, 1951, Koodish filed a second lawsuit in Cincinnati, this time on behalf of Kowalski, who like Prendergast, asked for a total of $150,000 ($50,000 in actual damages times three). In Kowalski’s complaint he asserted that he had been wronged by both the Dodgers and Organized Baseball and that the officials of minor league and major league Baseball had failed to provide him with the relief to which he was entitled. Because Kowalski was no longer under contract with the Dodgers, the suit was filed directly against Organized Baseball and Commissioner Chandler, and not against his former employer.

Sometime after Koodish filed suit on Kowalski’s behalf in June, responsibility for arguing his case was transferred to Frederic Johnson whose Prendergast case appeared to be stuck at the bottom of a lengthy backlog of cases in upstate New York.  At the same time Koodish and Morse continued to represent Corbett, and the two cases were officially consolidated by the court for purposes of trial.

Ironically, 1951, the year in which he sued Organized Baseball, turned out to be Walter Kowalski’s best year ever in professional baseball, at least from a statistical point of view.  Playing the outfield for New Castle, Kowalski clubbed 24 home runs and drove home 134 runners while hitting .375 with a .632 slugging percentage.  He led the Mid-Atlantic League in almost every offensive category, including batting average, slugging percentage, runs, hits, and runs batted in while earning a spot on the league’s All-Star team.

Although Prendergast’s lawsuit was stalled in the U. S. District Court for the Northern District of New York, Toolson’s case came to trial in California in November 1951.  Unfortunately for the minor league hurler, the district court judge ruled that Federal Baseball was still the controlling precedent and that the Second Circuit had erred in determining that the decision was obsolete.  Consequently, Organized Baseball was still not subject to the antitrust laws, thus the court lacked jurisdiction to hear Toolson’s claim. 

A month later, on December 6, 1951, the federal district court judge in Cincinnati reached a similar conclusion and simply dismissed the lawsuits filed on behalf of Corbett and Kowalski. However, all three of the plaintiffs responded to their respective setbacks by filing appeals to the appropriate United States Circuit Court of Appeals.

Unlike Prendergast and Toolson, neither of whom ever pitched in Organized Baseball after filing their lawsuits, Kowalski was not finished with baseball career.  Although the Middle Atlantic League went out of business after the 1951 season, Kowalski’s spectacular performance in 1951, enabled him to catch on with the Reading Indians of the Class A Eastern League, a Cleveland Indians farm team. 

Whether his ongoing litigation was a factor in Cleveland’s decision to acquire his services is a question that is difficult to answer.  If Kowalski was arguing that he was being blacklisted by Organized Baseball, it would have looked incriminating if he had been unable to find a job in professional baseball after a season in which he batted .375 (even if it was in Class C.)

However, once again, Kowalski failed to stick with a Class A team during spring training.  He ended up being one of the last two players released from the team.  However, rather than release him, the Indians organization assigned Kowalski to another of their affiliates, the Class B Spartanburg (S.C.) Peaches of the Tri-state League. 

Although Kowalski briefly thought about retiring rather than reporting to Spartanburg, he joined the team in time for the start of the season.  Although he hit reasonably well at Spartanburg (.293 with a .431 slugging percentage), his sudden loss of power cost him his spot in the team’s starting line-up.  In mind-season, his contract was assigned to the independent Lakeland Pilots of the Class B Florida International League.  (It appears that Kowalski became expendable when future major league slugger Rocky Colavito was promoted to Spartanburg.)

Kowalski’s stint at Lakeland was unexceptional, as he appeared in only 33 games and batted just .233 without hitting a single home run. 

At the conclusion of the 1952 season, Kowalski decided to retire from professional baseball, although at age 32 and coming off a year in which he had a combined batting average of only .263 with two home runs in two Class B leagues, it is not at all clear that he would have had any real options in professional baseball in 1953. 

In seven minor league seasons, Kowalski compiled a life-time batting average of .308 and a .489 slugging percentage in just under 3000 career at bats. 

In the meantime, Toolson’s appeal to the Ninth Circuit was argued in the late fall of 1952, and the Court’s decision, affirming the district court’s decision, was handed down on December 12.  Kowalski’s appeal reached the Sixth Circuit Court of Appeals two months later, and in February, 1953, the Sixth Circuit, like the federal district court, ruled that Kowalski’s claim should be dismissed on the grounds that Organized Baseball was immune from the federal antitrust laws, as held in Federal Baseball.

However, retirement from baseball did not mean the end of his lawsuit as Johnson appealed the Sixth Circuit’s decision on Kowalski’s behalf to the United States Supreme Court, a step already taken by George Toolson. The Supreme Court accepted both appeals on May 25, 1953—as well as one from Corbett, the minor league owner—and the cases were scheduled to be argued together on October 13 and 14, 1953. 

Of course, it is well known that the Supreme Court ruled against the three appellants on November 9, 1953, by a vote of 7-2, thus prolonging baseball’s exemption from the federal antitrust laws for the rest of the twentieth century.  None of the three cases ever went to trial, and Prendergast’s case, along with five other actions filed after Kowalski began his lawsuit, were all dismissed by lower courts on the basis of the ruling. 

Because the Supreme Court styled its ruling, Toolson v. New York Yankees, Inc., et al., the name of Walter Kowalski immediately disappeared from the sports pages and law reviews.  While the issue of baseball exemption from the antitrust laws has been heatedly debated on a regular basis since 1953, the case that affirmed the exemption is universally known as Toolson.  The only mention of Kowalski and Corbett in the court’s opinion came in a footnote that explained that the court’s decision also applied to those cases as well. 

Of course, had the Court instead chosen to style the case Kowalski v. Chandler, Kowalski’s would be a name known to all students of baseball history.

It is difficult to know how baseball would have been affected had the Supreme Court ruled differently in Toolson/Kowalski/Corbett.  To have held that Organized Baseball was subject to the antitrust laws was not necessarily the same as ruling that the challenged practices would have been found to be antitrust violations.  It seems fairly certain, however, that such a decision would have ushered in an era of free agency at the major league level and likely would have expedited the creation of an effective players’ union, particularly once the owners grasped that the only way to avoid the harsh lash of antitrust law was to convince the union that certain labor restraints should be included in the collective bargaining agreement.  Minor league baseball almost certainly would not have survived in its traditional form.   

The defeat before the Supreme Court was in some ways anti-climatic for the players involved in the challenge to the antitrust exemption.  The baseball careers of Walter Kowalski, George Toolson, and Jim Prendergast were already over by November of 1953, and the three men had moved on with the rest of their lives.  Toolson was working as a film printer for a Hollywood studio, and Prendergast had gone into the beer distribution business in Syracuse, and would later run unsuccessfully for Congress. 

How Walter Kowalski spent the years immediately following his retirement from baseball does not appear to be recorded, but in 1955, he accepted a job with IBM in Kingston, New York, the town in which he had starred as a hard hitting third baseman in 1947.  (Somewhat ironically, the minor league career of Kowalski outlasted that of Kingston by one year.  Minor league baseball had been revived in the New York village in 1947, and it ended, apparently forever, in 1951.) 

At some point Kowalski moved to the IBM office in nearby Poughkeepsie where he worked until his retirement in 1993.  For the final 50 years of his life, he resided in Red Hook, New York, where he and his wife raised 12 children.  He was an avid golfer and a supporter of youth baseball.  At his death, he was survived by his wife and all but one of his children as well as several grandchildren and great=grandchildren.

George Toolson died in 1987, and Jim Prendergast passed away on his 77^th birthday in 1994. The last surviving justice from the Supreme Court that decided Toolson, Justice Stanley Reed, died in 1980, as did Maurice Koodish, Kowalski’s original lawyer.  Frederic Johnson died in 1985.  Although he long outlived all of the participants in his famous Supreme Court case, it does not appear that anyone ever interviewed Walter Kowalski about his role in the landmark 1953 decision that, with better luck, would have borne his name. 

But of course, when it came to baseball, luck was usually not with Walter Kowalski. 

Francis “Frank” Zummach was born in Milwaukee in 1911, and attended Marquette University High School and Marquette University before enrolling in the law school in 1932.  Taking advantage of a program that allowed Marquette undergraduates to enroll in the law school after three years of college, Zummach received his undergraduate degree in 1933 and his law degree in 1935.

Unlike most Marquette law students of that era, Zummach received a J.D. degree, rather than an L.L.B.  In the 1930’s, Marquette awarded a more prestigious law degree (the J.D.) to graduates of the law school who also possessed an undergraduate degree and who prepared an acceptable thesis on a legal topic during the third year of law school.  (Zummach was also among the first Marquette Law School graduates to take advantage of the diploma privilege.)

While a student at the law school he was widely recognized as a student leader, serving as the all-university junior class president and as a member of Interfraternity Council.  (In the 1930’s, law students were much more integrated into the regular student body than they are today.)  One of his fellow students at the law school was his former Marquette basketball teammate, Ed “Boops” Mullen, who has the distinction of being Marquette’s first ever basketball All-American.

The 5’10” Zummach joined the Marquette basketball team in 1930 as a college sophomore.  His coach was the legendary Bill Chandler, who had just left Iowa State to take over the chronically weak Marquette basketball team.  By mid-year, Zummach had played his way into the starting line-up, helping the Hilltoppers achieve their first winning season in nine years.  He was made co-captain of the team the following year, and the local cagers compiled another winning record and nearly upset national champion Purdue, which was led by national player of the year John Wooden.

Zummach’s senior year, his first at the law school, was even better as the team went 14-3 with victories over Wisconsin, Notre Dame, Michigan State, and Indiana.  After exhausting his eligibility as a player, Zummach became an assistant coach at Marquette and served in that capacity through the 1938-39 season, apparently while practicing law in Milwaukee.  (As late as 1940, the Blue Book of College Athletics still listed Zummach as the assistant coach of the Marquette varsity.)

Zummach’s connection to professional basketball begins in the fall of 1939, when he was offered the position as head coach of the Sheboygan Redskins of the National Basketball League.  The Midwest-based National Basketball League, which was founded in 1937, was widely regarded at the time as the nation’s premier professional basketball league.  Sheboygan had entered the league in the fall of 1938, but the Redskins had been a disappointing 13-17 in their inaugural season.

The community-owned team turned to Zummach to improve the franchise’s on-court performance.  Zummach accepted the position, which paid him $500 to coach the team and $100 to serve as its legal counsel, and moved his law practice to Sheboygan, where he opened a law office in the Security National Bank Building.

In rebuilding the Redskins, Zummach recruited heavily from the ranks of Marquette’s basketball alumni, and the 1939-40 team included five former Hilltoppers.  (Unfortunately, he was not able to recruit his former teammate Boops Mullen, who already played for the NBL’s Oshkosh All-Stars.)

In his first year as a professional coach, Zummach’s team compiled a respectable regular-season record of 15-13, which was good enough for a first place tie with Oshkosh in the highly competitive Western Conference of the ABL.  In-state rivals Sheboygan and Oshkosh, which was led by three-time MVP and league scoring leader Leroy Johnson, squared off in the first round of the NBL play-offs.  The team split the first two games of the series, but the All-Stars edged Zummach’s Redskins by a score of 31-29 in the third and final game.

The next year the NBL abandoned the two-conference format, and Zummach’s Redskins finished with a record of 13-11, which was good enough for a tie for second in the seven-team league.  In the first round of the play-offs, Sheboygan defeated the Akron Firestone Non-skids two games to zero, setting up a rematch with Oshkosh, which had won the regular season and defeated the Detroit Eagles in the other play-off series.

Much of the credit for the Sheboygan team’s success was attributed to Zummach’s skillful coaching.  On the eve of the Sheboygan-Oshkosh play-off series, the Milwaukee Sentinel wrote, “Team play and spirit, stout hearts and an excellent coaching job by Frank Zummach have combined to put the Redskins among the cage elite.” (Milwaukee Sentinel, March 11, 1941.) Unfortunately, the All-Stars, playing in their fourth consecutive NBL final, again proved to be too much for the Redskins, as Zummach’s cagers fell to Oshkosh by scores of 53-38 and 54-36 in the best of three series.

Although all of Zummach’s teams at Marquette and Sheboygan were all-white, he was not insensitive to the plight of black athletes.  Prior to the 1940-41 season, the Redskins hosted an exhibition game against the renown Harlem Globetrotters.  At first it appeared that the all-black Globetrotters would have nowhere to stay—in this era, Sheboygan had a reputation for being particularly inhospitable to African-Americans—but Zummach’s efforts one of the Sheboygan hotels was persuaded to provide rooms for the visiting team.

In 1941-42, the Redskins slumped to a 10-14 record and a fifth-place finish, thus missing the play-offs for the first time in Zumbach’s tenure with the team.  Although the Redskins continued to play well at home, they won only two of eleven road games that season.  At the conclusion of the season Zummach stepped down as head coach to concentrate on his law practice.

Using many of the players that Zumback had recruited, his successor, former player Carl Roth, led Sheboygan to the 1943 NBL championship by defeating Oshkosh and the Ft. Wayne Zollner Pistons (now the Detroit Pistons) in the play-offs.  The Redskins remained one of the dominant teams in the NBL until 1949 when the NBL merged with the Basketball Association of America to form the National Basketball Association.  Sheboygan was a charter member of the NBA, but the problems of competing against teams in much larger cities led it to drop out of the league after the 1949-50 season.

After stepping down as coach of the Redskins, Zummach remained in Sheboygan where he formed the long-standing law partnership of Wolters & Zummach in 1945.  He was also an active member of the Wisconsin Bar Association.  Although he is currently retired at age 100, Martindale.com still lists him as a practicing lawyer in Sheboygan.  He is currently the oldest living former Marquette University basketball player and the only professional basketball coach from the 1930’s that is still alive.

To my mind, Jenkins has it all wrong.  It is especially important that Bonds be convicted.  In the United States, baseball has always been more than just a game.  From the 1870’s onward, major league baseball has been equally entertainment and morality play.  Every season involves the enactment of a public ritual that emphasizes and validates our most important common values.  In a society that celebrates individualism, but only within the constraints of moral norms, baseball celebrated individual accomplishment but always within the context of team play.

The ability of ordinary young men to rise from rural pastures or urban sandlots, through the minor leagues, to the major leagues reiterated the “rags to riches” vision of the United States as a society of unlimited opportunity for people with natural talent and self-discipline.  Even the annual example of once great players having to step aside because of age or injury emphasized that in the larger society each generation had to give way to the next and that current ability, rather than reputation or social status, was what really mattered.  In other words, major league baseball was a kind of perfect social Darwinist fable.

One of the central rules of American society has long been that while aggressiveness and cleverness are to be rewarded, cheating is not an acceptable path to excellence.

Rules of lesser importance, like the ones that govern play on the field, can be bent without undermining the basic message of baseball, but the fundamental rule that only honest effort should be rewarded is not to be violated.  Sneaking a spitball past the umpire or only pretending to touch second base while turning a double play are acceptable actions, but bribing an umpire or an opponent or physically harming an opponent while off the field are not.

Obviously this was always been more myth than reality, and traditional American values have been under attack since the 1960’s.  Nevertheless, the myth of American values remains an important myth and one that plays an important role in insuring social cohesion.

What Barry Bonds did by using prohibited performance enhancing substances and then lying under oath about his actions was to violate not just the integrity of baseball but of core American values as well.  Moreover, violating them in the context of baseball made his actions even worse.  That he, and his steroid-enhanced cohorts, robbed Henry Aaron and Roger Maris of the home run records, the most prized examples of worthy accomplishment, makes his offense especially reprehensible.

Because playing Major League Baseball has been the dream of tens of millions of American males for nearly a century and a half, we have a certain quiet sympathy for those who might violate the merit principle to obtain a goal made unattainable by nature’s denial of physical talents.  The baseball-loving, but physically inept college chemistry instructor of the movie “It Happens Every Spring” comes to mind, as does the middle-aged insurance salesman who sells his soul to the Devil for a chance to play in “Damn Yankees.”  Bonds, however, deserves no such sympathy since his God-given talents made him one of the greatest players of his generation, making his turn to steroids nothing more than the expression of deplorable greed.

To convict Barry Bonds of steroid-related perjury is to reaffirm the continued significance of values that have long been central to the American experience.  Texas v. Johnson notwithstanding, no one has the right to desecrate a national symbol and certainly not for no reason other than personal aggrandizement.

That’s on exhibit for all the world to see this week with the Packers’ appearance coming up Sunday in the Super Bowl. Fan loyalty to the Packers in Milwaukee, for example, often seems to know little limit, even though the team stopped playing in Milwaukee in the mid-1990s and (dare I say this) from Milwaukee, it is just about the same distance to Soldier Field in Chicago as it is to Lambeau Field in Green Bay.

Much less noted is the degree to which the Brewers are a Wisconsin team.

In an “On the Issues with Mike Gousha” session last week at Eckstein Hall, Rick Schlesinger, the Brewers’ executive vice president for business operations, talked about how important it is for the team to give people who attend games a good experience, and how important out-state fans are to the Brewers.

“We have to draw from not just Milwaukee and southeastern Wisconsin, we have to draw from the entire state,” Schlesinger told Gousha, the Law School’s distinguished fellow in law and public policy. “Our group business is usually in the top five in terms of total tickets sold to groups in baseball.”

Schlesinger said a key to that was the retractable roof at Miller Park. It means people can organize large group outings from places such as La Crosse or Eau Claire without worrying that the game won’t start on time and with confidence that the conditions in the stadium will be good. He said the roof was a large factor in keeping Brewer attendance strong, even in an unsatisfying season such as 2010, when about 2.8 million attended games.  He said teams in other Midwest cities that do not have roofs have “roof envy.”   

Schlesinger said that in comparatively small markets such as Milwaukee and Wisconsin, attendance at games is a bigger  factor in keeping the team competitive on the field than in larger markets,  where local television and radio contracts and revenue from other sources is much greater.  

 “Fans are the most important thing that we have,” Schlesinger said. He said the Brewers focus heavily on “making sure the fan experience from the time they get there to the time leave is first rate.” That means assuring that “the place is clean, the people are friendly, the brats are warm, the beer is cold” – the team is playing competitive baseball.

“We spend more money cleaning and maintaining Miller Park per square foot than any other ballpark in America,” Schlesinger said.

He said internal discussions among Brewers executives focus strongly on keeping games affordable for fans. On the one hand, the team wants to raise enough money to pay good players – its payroll last year was around $90 million. On the other hand, going to a game is a discretionary matter for people at a time when many people feel pinched by their personal financial situations.

“If we’re going to be asking people to spend their money and their time in a discretionary entertainment vehicle like the Brewers, we have to promote how cheap and affordable it is and how great an experience it is,” Schlesinger said . “At the same time, we have to tell people we have a product which is going to be a superlative product.”

Schlesinger grew up in Milwaukee and is a Harvard Law School graduate. He worked as a lawyer for the Disney organization and the Angels baseball team in Anaheim, Calif., before joining the Brewers. He told Gousha that, although his current job does not require a law degree, his training as a lawyer prepared him well for his current job and is valuable to him in his work.

Schlesinger said Brewer fans are far more loyal than the fans he dealt with in Los Angeles. He said the Angels had to work to get over 2 million in attendance when he worked for them, even though they were a team competing for the post-season most years and even though the Los Angeles area has more than six times as many people as the Milwaukee area. And people there were much more likely to be eager about the team only when it was doing well.

Brewer fans stick with the team even when the going isn’t so good (although they sure prefer good seasons). And Packer fans? Anyone who goes out in public from about 5 to 9:30 p.m. Sunday, while the Super Bowl is on and the streets and stores are quiet, will get a vivid reminder of how much Wisconsin fans feel connected to their teams.  

Don Walker, sports business reporter for the Milwaukee Journal Sentinel, wrote a story and a blog item about Schlesinger’s Law School interview. A video of the “On the Issues” session can be found here.

This essay looks at one aspect of this question by examining the effort of American League team owners in 1939 to bring the powerful New York Yankees back to the field by restricting the ability of the perennial champions to engage in player transactions with other league teams.

THE NO TRADING WITH THE YANKEES RULE

Although the New York Yankees have been the most dominant major league team since the early 1920’s, at no point in their history were they any more dominant than in the years 1936 to 1939. After finishing in second place for three straight seasons (1933-1935), the Yankees returned to the top of the American League heap in 1936 behind the stellar play of 21-year old rookie outfielder Joe DiMaggio, first baseman Lou Gehrig, and catcher Bill Dickey. (Babe Ruth played his last season with the Yankees in 1934.)

The 1936 team, considered by some historians as the greatest team in Major League history, won 102 games while losing only 51, scored 1065 runs, and finished 19.5 games ahead a second-place Detroit team that featured future Hall-of-Famers Mickey Cochrane, Charlie Gehringer, Goose Goslin, Hank Greenberg, and Milwaukeean Al Simmons. In the World Series, the men in pin-stripes outscored their cross-Bronx rivals the New York Giants by a margin of 43 runs to 23, while winning the series in six games. 

The following year, the Yankees’ record actually improved to 103-51, besting runner-up Detroit by 13 games and vanquishing the Giants in the World Series for the second year in a row, this time by a margin of four games to one. 1938 saw a similar result, even though the Yankee record “declined” to 99-53. This time they finished 9.5 games ahead of the rejuvenated Boston Red Sox before trouncing the Chicago Cubs, four games to none, in the World Series.

In 1939, the Yankees had one of their greatest seasons ever, winning 106 games while losing only 45. Even though the runner-up Red Sox increased their win total from 1938, they now finished a distant 17 games off the pace. In the World Series, the Yankees again triumphed in four straight games, disposing of the Cincinnati Reds by a combined score of 20-8.

The Yankee success in 1939 was even more remarkable, given that legendary first baseman Lou Gehrig played only eight games that year before retiring as his body began to succumb to the disease that now bears his name. Although the Iron Horse’s presence was obviously missed, his absence from the line-up had little effect on the potent Yankee offense, which totaled a major league leading 967 runs.

In addition to their success on the field, the Yankees also led the American League in attendance over the four-year period, topping the AL in 1936, 1938, and 1939, and finishing second to Detroit in 1937. In 1936 and 1938, they led all of organized baseball in total attendance.

By the end of the 1939 season, the other American League teams had begun to despair of ever catching the Yankees, and several owners were willing to entertain the idea that changes in the league operating rules were necessary to bring the Yankees back to the pack. The effort was led by Washington Senators owner Clark Griffith who proposed a number of new regulations designed to make it more difficult for the Yankees to repeat as champions.

Most of Griffith’s proposals were deemed too radical by his fellow owners, but the League did adopt his proposal for a new rule, effective immediately, that prohibited teams from trading or selling players to the previous league champion unless the players involved in the deal had first been placed on waivers (which would allow other league teams to claim them for $7,500). Conceding the inevitable, the Yankees did not oppose this restriction, and the measure passed unanimously. The next day’s Chicago Tribune described the action with the headline, “League Curbs Yankees”; the New York Times labeled it “baseball’s first radical legislation.” (Chicago Tribune, December 8, 1939, p. 35; NYT, December 8, 1939, p. 38.)

Because existing rules required that American League players be placed on intra-league waivers before they could be traded or sold to teams in the National League, the new rule meant that the Yankees could acquire players from other major league teams only after every other American League team decided that they did not want the player at the waiver price, effectively reducing the supply of established players available to the Yankees.

The “no trading with the pennant winner” rule was also submitted to the National League owners, but the senior circuit magnates declined to adopt it. No team had dominated the NL for very long in the 1930’s, and four teams—the Cubs, Giants, Cardinals and Reds—had won pennants in that decade.

While most members of the Yankee juggernaut of the late 1930’s were home grown or had been acquired from minor league teams, a handful, mostly pitchers, had been acquired in trades with other American League teams. The Yankees’ everyday stars — outfielders Joe DiMaggio, Charlie “King Kong” Keller, and George Selkirk, infielders Red Rolfe, Frankie Crosetti, and Joe Gordon, and catcher Bill Dickey — had either been signed originally by the Yankees as amateurs or else, like DiMaggio, purchased from independent minor league teams.

Only first baseman Babe Dahlgren, Gehrig’s replacement, had been acquired from another major league team, and he hardly qualified as a star. Dahlgren had been purchased from the Boston Red Sox in February 1937, but then spent most of the next two seasons in the minor leagues before cracking the Yankee line-up in 1939, when Gehrig abruptly retired. That year he batted a weak .235 with only 15 home runs and regularly filled the 8th spot in the Yankee line-up. After another mediocre season in 1940, he was essentially given away to the National League’s Boston Braves.

Of the top Yankee reserves, only outfielder Jake Powell had come from another team, and he had been acquired in a mid-season trade with Washington in 1936 in exchange for outfielder Ben Chapman, who had widely been viewed as a better player than Powell but who had ended up in Yankee manager Joe McCarthy’s doghouse.

In contrast to the everyday starters, a significant portion of the Yankee pitching staff in 1939 had been acquired from other American League teams, albeit over the course of several years. Four of the team’s six starting pitchers had become Yankees by this method.

Mound ace Red Ruffing had been acquired in a trade with the Red Sox during the 1930 season, and starters Monte Pearson and Bump Hadley had come over in 1935 in trades with Cleveland and Washington, respectively. The most recent acquisition had been Oral Hildebrand who was traded by the St. Louis Browns to the Yankees in October of 1938, for two untested players. At the time of the rule’s adoption in December 1939, much of the press coverage reported that the rule had been prompted by the ease with which New York had acquired Hildebrand, who went 10-4 in 1939, from the last-place Browns.

The “outrage” over the acquisition of the 32-year old Hildebrand had a certain “after the fact” quality. Hildebrand was an established major league pitcher in the fall of 1938, but he was hardly thought of as one of the premier pitchers in baseball. He had gone 8-10 with a 5.69 ERA for the 7th place St. Louis Browns in 1938, and while he was one of the Browns’ better pitchers, there is little evidence of protest on the part of other American League clubs at the time of the trade that brought him to New York.

The same was true for the other Yankee pick-ups. Monte Pearson had gone 8-13 with a 4.90 ERA in his final season with Cleveland, while Bump Hadley had compiled a stat line of 10-15 and 4.93 with the Senators the year before he became a Yankee. Even Red Ruffing was just 0-3 with a 6.38 ERA with Boston when he was acquired by the Yankees in 1930.

The Yankees were hardly buying up the American League’s best pitchers. At worst, they were just very good at identifying underperforming pitchers on other teams who would flourish with the Yankee line-up behind them. Nevertheless, they were winning with ease, and their opponents were desperately looking for a way to stop them.

In 1939, it was actually the runner-up Boston Red Sox, not the Yankees, that had been built through intra-league player acquisitions, as wealthy new owner Tom Yawkey abandoned even the pretense of making a profit. The core of the 1939 Red Sox team had been acquired from other American League teams, usually by cash purchase, and included a stable of already well-established stars like future hall-of-famers Joe Cronin, Jimmie Foxx, and Lefty Grove, star outfielders Doc Cramer and Joe Vosmik, and pitchers Elden Auker and Danny Galehouse.

SHERMAN ACT IMPLICATIONS

The “no trading with the pennant winner” certainly looks like an unreasonable restraint of trade. A lack of concern on the part of the Yankees regarding the detrimental effects of the rule probably muted the question, but could the Yankees have challenged the “no trading” rule as a violation of the Sherman Antitrust Act had they desired to do so?

While the Supreme Court’s 1922 ruling that organized baseball was not subject to the antitrust laws had not been overturned, by the end of 1939, the Court had dramatically expanded the scope of the antitrust laws through an expansive interpretation of the meaning of the Constitution’s Commerce Clause.

Had the Court revisited the issue of baseball and interstate commerce in 1941 or 1942 (when an appeal would likely have reached the court), would it have overruled Federal Baseball? While we can never know for sure what the answer would have been, it seems likely that the justices who delivered the opinion in Wickard v. Filburn (1941) would have found organized baseball to constitute a form of interstate commerce.

For example, in 1940, U. S. Attorney General Thurmond Arnold took the position that the business of screening motion pictures in theaters was a form of interstate commerce, and the motion picture studios, entities somewhat analogous to sports leagues, accepted the legitimacy of this characterization. (This position was confirmed by the Supreme Court after World War II in United States v. Paramount Pictures (1948).) While it is true that the Supreme Court confirmed baseball’s antitrust exemption in 1953, only four of the justices who decided that case were on the Court in 1941, and one of the four, Stanley Reed, dissented in that case, and another, Felix Frankfurter, indicated that he would have decided the question differently had it arisen a decade earlier.

Of course, no lawsuit of this type was forthcoming in 1939 or 1940. There were a number of reasons for this. First of all, had the litigation-averse American League owners believed that the Yankees might have sued them on antitrust grounds, that would almost surely have been enough to dissuade them from adopting the “no trading with the pennant winner” rule in the first place.

More importantly, it would hardly have been in the interests of the Yankees to raise the issue of the validity of the baseball antitrust exemption in 1939 or 1940, even if they believed that they would be harmed by the new rule.

In 1939, no team benefitted more from organized baseball’s mesh of anti-competition rules than the New York Yankees. For example, the principal of territorial exclusivity — that existing teams had a monopoly over their local markets — meant that the Yankees did not have to worry about sharing the enormous New York market with any other American League team or with any other National or minor league team, other than the New York Giants and Brooklyn Dodgers with whom they had shared the country’s largest metropolitan area since 1903. In an era where ticket sales and concessions were the primary generators of revenue, the New York teams controlled a market whose populations was almost three times larger than the second largest market (Chicago), which was shared by two teams and more than 14 times the size of the smallest market (Cincinnati).

Similarly, the reserve system — under which teams in organized baseball agreed not to offer contracts to players on other teams, even after their contracts expired, unless their previous team agreed to release them — also greatly worked to the Yankees benefit. The reserve system prevented the Yankees from having to worry about wealthy owners like Boston’s Tom Yawkey signing New York players to contracts, but allowed the equally well-off Yankees to purchase players from other teams , if they chose to do so. By depressing player salaries, the reserve system allowed wealthier teams to devote financial resources to acquiring new players rather than to retaining existing ones.

Moreover, the reserve system applied to minor league players as well, and minor league salaries were subject to a strict salary cap. These features allowed the cash-rich Yankees to outbid other teams for amateur players which they could then stash away in their large farm system while waiting for them to develop. In 1939, the Yankees had the largest minor league system in the American League and the second largest in major league baseball. (Only the St. Louis Cardinals, the originators of the farm system concept, operated a larger farm system.) Although minor league players under contract were eventually available to other major league teams through the minor league draft, manipulation of the draft eligibility rules allowed the Yankees to hold on to their best minor league prospects until the team determined if they had major league potential. Lesser players could be sold to other teams to recoup part of the costs of operating the farm system.

Consequently, the Yankees had little reason to contemplate any action that might undermine the existing market restrictions of professional baseball. Therefore, it is hardly surprising that when the question of the continued viability of the Federal Baseball holding finally came before the Supreme Court in 1953, it did so in a case in which the New York Yankees were not the plaintiff, but the defendant. The plaintiff in Toolson v. New York Yankees was a Yankee minor league player who challenged the legality of the reserve system.

If for some reason baseball’s antitrust immunity had been overturned in the early 1940’s, the question of whether the “No trading with the Yankees rule” would have constituted an illegal group boycott under the Sherman Act in 1940 is a complicated one. There are no sports-related antitrust decisions at all before the mid-1950’s, and few before the 1970’s, so it is difficult to know how pre-World War II courts would have treated a professional sports league for antitrust purposes. Would, for example, the single entity defense have been asserted that early? Would such restraints have been viewed as acceptable under the rule of reason, or would they have been viewed as per se violations? While it is tempting to answer these questions in the affirmative, the one lesson from the history of sports antitrust law is that judicial behavior in sports cases is extremely difficult to predict.

THE SUBSEQUENT FATE OF THE NO TRADING RULE

Somewhat surprisingly, the “no trading with the pennant winner” rule actually appeared to accomplish its purpose in 1940, as the Yankees failed to repeat as league champions.

The New Yorkers got off to an extremely poor start in 1940, and on May 23, resided in the American League cellar with a record of 11-17, 8.5 games behind first-place Boston. The team’s play improved during the next month, but losses were still almost as frequent as wins, and as late as June 26, the team still had a losing record.

Although several Yankee regulars got off to slow starts at the plate, the primary problem in the early going in 1940 was a shortage of effective pitching. Ruffing and Pearson pitched well, although limited run support allowed Ruffing to win only four of his first eleven starts. However, the rest of the staff was in shambles. Number 2 starter Lefty Gomez injured his arm in his first start of the season, and was not able to pitch again until July. Bump Hadley apparently started the season with a sore arm, and after one start in late April spent the rest of the season in the bullpen where he pitched ineffectively. Oral Hildebrand also entered the season with arm problems and did not appear in a game until May 4. Although he pitched well in short appearances, he was available only for 9 appearances before being sold to the minor leagues at the end of July (which ended his major league career). Spud Chandler, who had missed most of the 1939 season because of injuries, was inserted into the starting rotation in late April, and while Chandler would end his major league career with 109 wins and the highest winning percentage in baseball history, he lost three of his first four starts in 1940, twice getting knocked out of the box before the fifth inning.

Clearly the Yankees were in need of pitching help during the first three months of the 1940 season, but thanks to the American League’s “no trading” rule, they were unable to obtain any new players from their competitors. An obvious source of help would have been the perennially cash-strapped Philadelphia Athletics and St. Louis Browns, who had kept themselves financially afloat during the 1930’s by regularly selling their best players to other American League teams.

By the end of June, the New York ship was re-righted, as effective replacement pitchers were found in the team’s bullpen and minor league system. From June 27 on, the Yankees had the highest winning percentage in the American League, and while they were able to overtake the Red Sox, their record was not quite good enough to catch Detroit and Cleveland, who finished two and one games, respectively, ahead of the Bombers. Although the Yankees ended the season winning 10 of their last 12 games, losses to lowly Washington and Philadelphia in the last three days of the season prevented them for tying Detroit for first place. According to the New York Times, it was the “no trading” rule that “unquestionably prevented a fifth straight pennant for the Yankees.” (NYT, July 8, 1941, p. 22.)

With the Yankees’ early season slump, the American League in 1940 featured a new competitive balance that created a much more exciting season. In the end, Detroit edged Cleveland for the pennant by a single game, clinching the title in a season-ending series between the two teams. The Yankees finished third, followed by Boston and Chicago, both of whom had winning records. The Red Sox had been the early season leaders and had remained in contention for the title into September. The White Sox, like the Yankees, had started slowly, but had pulled themselves into the pennant race in August. Although they subsequently stumbled, the team rebounded to finish on a high note. The St. Louis Browns escaped the cellar for the lofty heights of 6th place. The Senators had little to boast about, but they were clearly less horrible than the Philadelphia Athletics. Every team in the American League, including the Yankees, drew more fans in 1940 than they had in 1939.

One might have thought that the success of the 1940 season would have led to the permanent enshrinement of the “no trading with the defending champion” rule. However, with the Yankees dethroned, there was an effort immediately after the 1940 World Series to repeal the “no trading” rule, which now applied to the new pennant winners, the Detroit Tigers. Not surprisingly, Detroit and New York supported the repeal, but five of the six remaining teams voted to keep the restriction in place, at least for the 1941 season.

Although Detroit had won the American League pennant in 1940, its older line-up limped into the off-season. Nagging injuries had required all-star second baseman Charlie Gehringer to miss a number of games during the regular season and had clearly limited his performance in the World Series (where he batted a weak .214). In December 1940, the conventional wisdom was that Gehringer would probably not play in 1941. (He did, but he had what was by far the worst season of his career, batting .220, nearly 100 points below his career average.) Moreover, everyone agreed that Tiger starting shortstop Dick Bartell was also near the end of the line. The New York Times asserted that Bartell’s “range as a shortstop is down to the width of a dime,” and after a very slow start in 1941, he was released outright by the Tigers in May. (NYT, Dec. 11, 1940, p. 27.)

As a result of the” no trading” rule, Detroit had to rely on its own farm system for replacements in 1941, but few quality players were forthcoming. (Detroit had a small, five-team farm system and no AAA (then called AA) team at all.) Moreover, early in the 1941 season Tiger superstar Hank Greenberg, who had clubbed 41 home runs with 150 RBI’s and a .340 batting average in 1940, was drafted into the United States military after appearing in only 19 games. In addition, pitching ace Bobo Newson , 21-5 in 1940, pitched ineffectively in the early going, and on May 22, sported a record of 2-7 with a 6.05 earned run average.

With its coffers presumably flush from a major league leading attendance of 1.1 million in 1940, Detroit might have been able to find replacements for Greenberg, Gehringer, Bartell, and Newsom, had it been able to deal with the other American League teams. However, thanks to the “no trading” rule, they were barred from even attempting to make any such deals.

On May 15, the 5th place Tigers were permitted to purchase outfielder-first baseman Rip Radcliffe from the last place St. Louis Browns for $25,000, after Radcliffe cleared waivers. It is possible that Radcliffe cleared waivers legitimately — he had finished 4th in batting in the AL in 1939 with a .342 average, but was batting only .282 with just six extra base hits at the time of the trade and no other team may have wanted to take on his salary. However, it is also possible that the other teams felt sorry for the Tigers, who had at that point lost six straight games following Greenburg’s departure for the Army. Although Radcliffe was a career .311hitter, he had very little power, averaging only four home runs a year over his ten-year major league career, and he was hardly an adequate substitute for Greenburg. However, the Tigers apparently had no other alternative.

By the time of the July 1941 All-Star Game break, it was apparent that the rule was having adverse consequences for Detroit that had not been foreseen at the time of its adoption. Moreover, because of the difficulty the Tigers had in replacing Greenberg, the rule seemed almost unpatriotic. The 1941 All-Star Game was, coincidentally, in Detroit, and at the time of the game the Yankees were back at the top of the standings, while the Tigers had fallen to fifth place, one game under .500.

At this point, several American League owners were beginning to have second thoughts about the wisdom of the “no trading” rule. What had been adopted to disadvantage the Yankees was now working to their benefit by effectively disabling the Tigers, the team expected to be the New Yorkers’ principal rival in 1941. At a meeting held in the Detroit office of Tiger owner Walter O. Briggs the day before the All-Star game, Briggs and Yankee president Ed Barrow proposed that the rule be abolished. To secure support of other owners, an agreement was made to delay the repeal until the conclusion of the 1941 season (perhaps to allay any fears that the Tigers might sell their best remaining players to the Yankees). Although three of the eight American League owners reportedly voted against it, the motion was adopted. (NYT, July 8, 1941, p. 22.)

The Yankee absence from the top of the AL standings turned out to be a short-lived phenomenon. They held on to win the AL championship in 1941, and then repeated in 1942 and 1943. After a brief return to the pack during the latter part of World War II, the Bronx Bombers captured American League pennants in 1947, and then 14 times in the 16 seasons between 1949 and 1964 (1949-1953, 1954-1958, and 1960-1964). In spite of this unprecedented dominance, there was no serious effort to reinstate the “no trading” rule, not even after the Kansas City Athletics began regularly trading players like Ryne Duren, Ralph Terry, Hector Lopez, Clete Boyer, Bud Daley, and Roger Maris to the Yankees in the late 1950’s for untested minor leaguers or over-the-hill veterans.

Ironically, the Yankee dynasty of the mid-20th century was finally brought to a close by the team’s decision to stop investing in its farm system and by major league baseball’s institution of an amateur player draft in 1965. When the team’s prominence was reestablished in the mid-1970’s by new owner George Steinbrenner, it was done by taking advantage of new free agency rules which allowed the Yankees to acquire established players at the peak of their careers (like Reggie Jackson and Catfish Hunter), precisely the type of strategy that the 1939 “no trading” rule had been designed to prevent.

In addition to the newspaper articles cited above, statistical and roster information is taken from the Baseball-reference.com and retrosheet.org websites and the Sports Encyclopedia Baseball (2007 edition).

He signed a professional contract with the St. Louis Browns in 1949, and later pitched for seven different major league teams between 1954 and 1965.  He is best remembered as a star relief pitcher for the New York Yankees from 1958 to 1961.  In that role, he was instrumental in the Yankees victory over his home state Milwaukee Braves in the 1958 World Series.

Although his career statistics were fairly modest, a 27-44 won-lost record with 57 saves and a life time ERA of 3.83, Duren was well-known to baseball fans of the late 1950’s and early 1960’s.  Perhaps the hardest thrower of that era and one of the first pitchers to have his fastball clocked at over 100 mph, Duren was a three-time all-star who averaged 9.6 strikeouts and 6.0 walks per nine innings for his career. 

In 1958 and 1959, he was one of the best relief pitchers in major league baseball, but in most seasons, his lack of control limited his effectiveness.  In 1960, for example, he struck out an average of 12.3 batters per nine innings while holding opposing batters to a .160 batting average.  However, his lack of control, which led him to walk an average of one full batter per inning, caused his earned run average to balloon to 4.96.  Even though he pitched relatively few innings each year, he also several times ranked among league leaders in hit batsmen and wild pitches.

Although he was an accomplished pitcher for several years, Duren was best known as the original “Wild Man” relief pitcher.  (He was the prototype for the Charlie Sheen character in the movie Major League.) Although he was an athletic 6’2”, 190 lbs., Duren had extremely poor eyesight (20/200) and wore coke bottle thick eye-glasses.  He also had a severe drinking problem and frequently pitched while badly hung over and occasionally while intoxicated.  The combination of his wicked fastball, his lack of control, the coke bottle glasses, which he occasionally chose not to wear, and his well known penchant for drinking made him a very intimidating figure.  

Duren’s inspirational autobiography, I Can See Clearly Now (2003), tells the story of his triumph over alcoholism in the years following his retirement from baseball.

What has not been mentioned in any of the tributes that have appeared since his death was Duren’s role in the integration of minor league baseball in the American South in the early 1950’s.  In his book  Brushing Back Jim Crow: The Integration of Minor League Baseball in the American South, historian Bruce Adelson tells several stories about Duren coming to the defense of his black teammates. 

In 1955, Duren was pitching for the San Antonio Missions of the Texas League.  Even though the Texas League had been racially integrated in 1952, it still had very few black players and included several all-white teams.  Many of the league’s fans clearly resented racial integration.  That year, Shreveport Sports manager Mel McGaha regularly ordered his pitchers to throw at black batters. 

According to Duren’s San Antonio teammate Willie Tasby, a black outfielder, Duren would retaliate on Tasby’s behalf by throwing 100-mph fastballs at Shreveport batters.  Apparently, Duren would sometimes take off his glasses and throw at Shreveport batters in the on-deck circle so that they would not be able to take first base when they were hit by his pitch.  Apparently, this tactic worked, and white pitchers stop throwing at Tasby.  The year before, Duren had also reportedly gone out of his way to befriend black San Antonio teammate Joe Durham who was not permitted to room or eat with his teammates in the Jim Crow South.  

Playing minor league baseball in the South in the early 1950’s was no picnic for black baseball players, but the existence of sympathetic white teammates like Ryne Duren made it more bearable, and safer. 

Duren spent most of his life in Wisconsin and his name appears on the Wall of Honor at Miller Park.  Hall of Famer Ryne Sandburg, born in 1959 in Spokane, Washington, during Duren’s best season, was named after Duren by his Yankee-fan father.

Why Zimmerman chose the name Dylan has long puzzled his biographers.  Welsh poet Dylan Thomas, Marshall Matt Dillon of TV’s iconic western Gunsmoke, and Dillon Road in Hibbing have all been suggested as possible sources.  Dylan himself has been characteristically vague and enigmatic on the name issue.

From 1952 (the year that Dylan was in the seventh grade) to 1959 (the year he enrolled as a freshman at the University of Minnesota), the Green Bay Packer defensive backfield was anchored by Bobby Dan Dillon, a 6’1”, 180 lb. native of Temple, Texas who played college football at the University of Texas.  Drafted by the Packers in the 3^rd round of the 1952 NFL draft, Dillon (called Bob or Bobby) quickly moved into the starting lineup and for the next eight years was one of the few bright spots on a fairly dismal Packer team.  Dillon was a first-team all-pro on four occasions, played in four Pro Bowl games, and was named first or second team All-NFL every year after his rookie season.

There is no evidence that Bobby Zimmerman was especially interested in football or any other sports while growing up in Hibbing.  He did not play sports in high school, and while there are sports references in his later songs, they are principally to boxing and to a lesser extent, baseball.  On the other hand, there is no reason to believe that he wasn’t familiar with the sports figures of his era, at least in a general way.

I am not suggesting that Zimmerman chose the name Dylan to honor his football hero; it is more likely that he was familiar with the name (for reasons explained below) and simply liked the way it sounded.  (Of course, it could also be that the name Bobby Dan Dillon and the football player’s rural, southwestern roots appealed to the young Jewish Midwesterner who was soon to go to great lengths to project himself as a wandering troubadour from the heartland of America.)

Before the creation of the Minnesota Vikings in 1961, most northern Minnesota NFL fans followed the Green Bay Packers.  This is confirmed by former Marquette Law professor Ken Port who grew up in the area around Hibbing in the 1960’s and 70’s and who is an acquaintance of many of Dylan’s Zimmerman relatives.  According to Port, most of the older people he knew growing up had been Packer fans before 1961, and that many of them remained Packer fans after the arrival of the Vikings. 

Packer games were broadcast into Minnesota on the radio each season, and from time to time on television as well.  For example, television sets in Hibbing on Thanksgiving Day, November 25, 1954, could be used to watch the Detroit Lions-Green Bay Packer game on the Dumont Network. (In that game, the Packers almost upset the first place Lions, before falling 28-24.)  It seems safe to say that any Packer fan is the 1950’s would have immediately recognized the name Bob Dillon

However, there was one even more direct Hibbing-Packers connection.  In the early 1950’s, the Packer held their summer training camp in Grand Rapids, Minnesota, which was not terribly far from Hibbing.  Moreover, on August 13, 1953, the Packers actually played an exhibition game in Hibbing against the New York Giants.  Given that Bobby Zimmerman was 12 years old at the time, it is hard to imagine that he would not have known about the game, and he likely would have heard the names of the top Packer players discussed.

As for the legal question in the title of this article, it is hard to believe that the football Bob Dillon would have had any legal recourse against the folk-rock legend even if Dylan did “steal” his name.  First of all, there is a general principle in property law that no one can own exclusive rights to a name.  Moreover, as I noted several years ago in an article on the landmark right of publicity case of Uhleander v. Ericksen (1970), the Minnesota law regarding the right of publicity was almost completely undeveloped prior to 1970.

However, the tort of appropriation of identity was widely recognized in 1959, and presumably existed in Minnesota.  The elements of that tort were (and are): (1) taking, (2) identification, (3) benefit to the appropriator, and (4) lack of consent.  Elements (3) and (4) would appear to have been satisfied, but elements (1) (a taking) and (2) (identification) demand that third parties recognize the identity that has been ostensibly taken and act in a manner that tangibly benefits the taker.  At a minimum, a person whose image is tortuously appropriated must be objectively identifiable; a benefit to the appropriator must accrue before a legal claim arises; and the use must be nonconsensual.  In this particular case, it seems unlikely that anyone listening to Bob Dylan sing or contemplating purchasing one of his albums was ever under the misimpression that the singer-songwriter was the Packer defensive back branching out into a new career.

On a different front, in contemporary intellectual property law, Dillon could conceivably have maintained a trademark action against Dylan.  Fans of sports law probably remember that in 1998, former basketball superstar Kareem Abdul-Jabbar sued NFL running back Karim Abdul-Jabbar for trademark infringement.  The football playing Jabbar, originally known as Sharmon Shah, changed his name for religious reasons in 1995 while still a student at UCLA.  Although the name was spelled slightly differently and the basketball playing Jabbar had been retired since 1989, there were a number of parallels between the two men that suggested some sort of linkage.  Both had attended UCLA and both wore uniform number 33, albeit in different sports in different eras. 

Nevertheless, the basketball Jabbar filed a trademark infringement action against his football counterpart, once the latter became established as a rising star in the National Football League.  The case never went to trial, but the football Jabbar conceded the issue and agreed that for commercial purposes, he would play in the NFL under a different name.  After initially playing under the name Abdul, he eventually changed his name to Abdul-Karim al-Jabbar, which was apparently acceptable to Kareem.

The earlier Dillon situation was different for a number of reasons, the first of which was the “undeveloped” state of trademark law in the late 1950’s and early 1960’s.  In that pre-dilution era, the primary focus of a successful trademark infringement claim was the proof of likelihood of confusion in the marketplace. 

Again, it is hard to believe that anyone in 1959 or 1960 confused the two Dillons/Dylans, particularly given the dissimilar spelling of the names.  Moreover, while it is hard to believe that any knowledgeable sports fan really believed in 1996 that the 7’4” basketball legend Had actually embarked on a new, and apparently successful, career as an NFL running back at age 49 (his age during the football Jabber’s rookie year), it was true that many sports fans at the time assumed that the football Karim (who shared the same uniform number and alma mater with his basketball counterpart) was the son of Kareem Abdul Jabber (which he was not). 

In contrast, no one ever suggested that they thought that Bob Dylan was Bob Dillon’s son (especially since the football Dillon was only eleven years older than the singer).

Unless Bob Dylan someday reveals where he got the idea for his name, we will be left to speculate on the matter.  For the reasons stated above, however, I think it highly likely that Robert Zimmerman of Hibbing, Minnesota went through adolescence already familiar with name that he would eventually adopt as his own, albeit with an altered spelling.

Professor Adam Kurland of Howard University Law School can attest to the fact that I have been making this “Bob Dylan got his name from the Packers’ Bobby Dillon” argument since the late 1980’s when we were both colleagues at Chicago-Kent, and I first learned that there had been a Bob Dillon who played for the Packers.

I know that many, mostly amateur, pre-1876 nines used Indian names for their clubs–I am relying upon Marshall Wright’s list of clubs in his history of baseball before 1870 for this assertion–and that most 19th-century nicknames for professional clubs were unofficial. (The incorporation of the territorial exclusivity principle into professional baseball in 1876 made team names less necessary, since there could be only one Boston team in the National League or, for that matter, only one New Castle, Pennsylvania team in the minor-league Iron and Oil Association.)

Based upon the information on team names in the Baseball America’s Minor League Encyclopedia, 3^rd ed., it appears that the practice of identifying professional baseball teams by Indian names largely began in 1887 (interestingly, during the season following the passage of the Dawes Act in February 1887).  That year, one finds teams like the Oneida Indians, the Wichita Braves, the Springfield (Mo.) Indians, the Fort Smith Indians, the Scranton Indians, and the Zanesville Kickapoos.

(I don’t count the London (Ont.) Tecumsehs of the International Association of 1877 and 1878 as a team with a Native American name, because that club was named after an individual Native American who was at the time treated as a Canadian national hero.  Portraits of Tecumseh in a red British general’s uniform were not uncommon in 19th-century Canada.)

It is easy to understand why Indian names would be attached to teams in towns like Oneida and Wichita since those are tribal names as well as city names.  I suppose that in the 1880′s places like Springfield, Missouri and Fort Smith, Arkansas were still close enough to their frontier origins (and to Indian Territory) that people might still associate Native Americans with those communities.

However, I have no idea why a team in Scranton would be called the Indians, especially since the same team was also referred to as the Miners, which makes sense given that Scranton was so closely linked to the anthracite coal industry.

I do know that local histories of Scranton in the late 19th century emphasized that the land on which the city was situated had been purchased by William Penn from the Delaware Indians (and Scranton’s county has an Indian name, Lackawanna), but presumably similar stories could be told for most American communities.  Perhaps there been an earlier, amateur club in Scranton called the “Indian Baseball Club” and the name somehow got attached to the town’s first professional team.

Most baffling is the team known as the Zanesville Kickapoos.  The Kickapoo were a real tribe, but by the 1880’s they had long been relocated to the west.  Moreover, their Midwestern base had been in western Indiana, not eastern Ohio, and there is, as far as I can tell, no reason to associate them with Zanesville.  Maybe it was a hidden reference to the team’s penchant for “kicking” (complaining), or possibly local sportswriters thought the name sounded funny and thus adopted it.  But that is just a guess.

Rosters for the 1887 Scranton and Zanesville teams can be found in the Baseball-Reference.com database, but none of the players on those teams have obviously Native American names.

On a related note, one of the truly bizarre team names in the history of minor league baseball is the Terre Haute Hottentots.  (Hottentot is a European-coined term for certain native tribal groups in southwestern Africa, and its usage is almost always viewed as derogatory.)

The name became associated with the Terre Haute team when it returned to the professional ranks in the early 1890′s.  It was apparently used to describe all of Terre Haute’s entries in various mid-western leagues until 1910 when the team name was changed to “Stags.”  However, the Hottentot name was revived in 1921 as “Tots” and was used continuously until the Terre Haute franchise went out of business after the 1937 season.

I can find nothing that discusses the origins of the name, or how it came to be attached to the Terre Haute team.  However, my suspicion is that it refers in a good-humored, racist way to the Terre Haute team’s previous employment of noted black baseball players Bud Fowler and Moses Fleetwood Walker.  Fowler played with the team in 1888, and Walker, a former major-league catcher, participated in the 1890 pre-season, but apparently did not play in any regular season games.

Moreover, “Hottentot” sounds a little bit like “Haute and Terra” and there is a certain alliterative quality to “Terre Haute Hottentots.”  Such things may have passed for humor in late 19th-century Indiana.

Comments on any of this would be much appreciated.