Dean James Jenkins: Baseball Pioneer

Next week marks both the opening day of the baseball season in Milwaukee and the finals of the Jenkins Moot Court competition.  Few recognize the historical connection between these two events.

The moot court competition is named for James G. Jenkins, the first dean of the Law School whose bust adorns the waiting area outside the elevator stop on the second floor of Sensenbrenner Hall.  What is not very well known is that Jenkins was also instrumental in the re-establishment of baseball in Milwaukee after the Civil War.

The first modern baseball club, i.e., one playing by the so-called New York rules that mark the beginning of baseball as we now know it, was established in Milwaukee in 1860.  This amateur organization, known as the Milwaukee Baseball Club, featured more members of the bar than any other occupation.  Jenkins arrived in Milwaukee (from New York) in 1857, and was probably a member of this first club.

Unfortunately, the Milwaukee Baseball Club folded during the Civil War, and Milwaukee reverted to the status of a “city with no modern baseball club.”  However, baseball was restored on August 17, 1865, when a new club was organized headed by stationer H. H. West and lawyers Samuel Howard and  James G. Jenkins.  When the club reorganized in October with a written constitution and by-laws, West and Jenkins were elected president and vice-president of the club, now dubbed the Cream City Baseball Club of Milwaukee.  (Cream city referred to the distinctive color of bricks widely used in the construction of mid-nineteenth-century Milwaukee.)

The new club’s first game was played on November 7, 1865, and was the result of a challenge from a group of young baseball enthusiasts (many of which were also members of the Cream City club).  The challengers batted first, and when the Cream City club took the field, who should be on the mound but our own James G. Jenkins?  When it was the home team’s turn to bat, Jenkins also led off the batting order.

The game was scheduled for nine innings, but was called after seven because of darkness.  Pitching underhanded in the style of the time, the 31-year old Jenkins took a 14-10 lead into the fourth inning before his opponents really figured out his pitching.  Jenkins gave up ten runs in the fourt and eleven more in the sixth, and while the Cream City players had no trouble scoring runs themselves, they ended up on the short end a 36-30 score.

Early box scores recorded only name, position, runs, and outs made, but Jenkins appears to have had a successful day at the plate (which was square), scoring four runs and making only 2 outs.

A number of additional matches were played that November, and in April of 1866, the club organized for the new season in Jenkins’ office.  (He was then the Milwaukee city attorney.)  However, the level of Jenkins’ involvement with the club as both an official and a player began to wane after that.  His focus increasingly turned to politics, and though unsuccessful, he was later the candidate of the Democratic Party for governor and the United States Senate.  He did go on to a lengthy career as a federal judge and ended his public career as the dean of the Marquette Law School from 1908 to 1916.

Much of this information is taken from Dennis Pajot’s wonderful new book, The Rise of Milwaukee Baseball: The Cream City from Midwestern Outpost to the Major Leagues, 1859-1901 (McFarland & Company 2009).  For a biographical profile of Jenkins, see here.

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The Native American Mascot Issue Will Just Not Go Away

WISCONSIN.  In Wisconsin, the legislature is considering a bill that would give Native Americans the right to formally object to the use of a disparaging nickname by a high school in their school district.  Under the Democratic-sponsored bill, anyone who objects to the use of a race-based team name, mascot, symbol, or logo in their school district can file a complaint with the state superintendent of education.  A hearing would then be heard to determine if the name or mascot was being used in a way that was “discriminatory, or promoted student harassment or stereotyping.”  If the finding is that the use was discriminatory, the district would have one year to eliminate all use of the name or image.  If it failed to do so, the district would be subject to daily fines of $100 to $1000.

On February 25, the bill passed in the State Assembly by a vote of 51-42.  However, before passage, it was amended to exempt from the bill’s coverage any school that uses a federal-government recognized tribal name as its nickname or any district that obtains permission to use its name or logo from a federally recognized tribe.  (Consequently, the Auburndale High Apaches would not be covered by the bill.)  At the moment, the bill appears to be bottled up in the Senate where a vote has yet to be scheduled.

During the current academic year, there are still 38 Wisconsin high schools that use Native American team names, including the above-mentioned Auburndale and the all-Native American Menominee High School.  No school uses a racially-related team name referring to a group other than Native-Americans.

THE NATION’S CAPITAL.  In Washington, D. C., the Supreme Court’s refusal late last year to review a lower court holding dismissing the 1992 Lanham Act challenge to the Washington Redskins trademark filed by Native American activist Suzan Harjo has not ended the Redskins problems.  Harjo’s suit was ultimately dismissed on the basis of laches—Harjo and her fellow complaints had waited too long to challenge the 1967 trademark registration by Pro Football, Inc., the corporate name of the Washington NFL team.

However, a new effort to invalidate the Redskins trademark on disparagement grounds–Blackhorse v. Pro Football, Inc.—is currently pending before the Trademark Trial and Appeal Board.  The plaintiffs in Blackhorse are all young Native American adults who are claiming that because of their age, they had no previous opportunity to object to the mark and thus are not bared by the lower court ruling in the Harjo litigation.  More recently, a second action has been filed by different plaintiffs attacking the legitimacy of six derivative versions of the Redskins trademark—including one for Washington Redskins Cheerleaders—filed since 1992.  These actions are seeking to deny the Washington team the right to use the name “Redskins” but they are trying to prevent the team from being able to license the mark.

NORTH DAKOTA.  Finally, the debate continues in North Dakota over the right of the University of North Dakota to continue to use the name “Fighting Sioux” for its athletic teams.  The NCAA has adopted an approach that prohibits the use of Native American team names and logos unless the tribal group bearing the name in question approves.  (More generic team Native American names like Indians, Braves, or Redmen are limited to those colleges like UNC-Pembroke or Haskell University that were founded as colleges for Native Americans.)

The problem in North Dakota is that one of the state’s two Sioux tribes (the Spirit Lake Sioux) has authorized the use of the name but the other (the Standing Rock Sioux) has not.  The State Board of Higher Education had ordered the University to begin phasing out the nickname on November 30 unless it secured the permission of both tribes.  However, the situation has reached a standstill, and the University is still using the name.  (The Fighting Sioux ice hockey team is one of the favorites in the current NCAA championship play-offs and the team squares off against Yale in a first round game on March 27.)

At the moment a number of Native-Americans are fighting to allow the University to continue its use of the name.  A petition signed by 850 members of the Standing Rock Sioux tribe is currently in circulation as pro-nickname members of the tribe try to force their leaders to schedule a plebiscite on the issue on the reservation.  (The Standing Rock Sioux also elected a pro-nickname council president last year.)

At the same time, eight members of the Spirit Lake Sioux have filed suit against the state arguing that they will be harmed if the University of North Dakota drops the Fighting Sioux nickname and that under an earlier settlement agreement between the NCAA and North Dakota, approval of the name by the Spirit Lake Sioux was sufficient for its continued use.  Their request for an injunction was denied by the state district court, but the appeal in Davidson v. State is currently before the North Dakota Supreme Court.  Apparently no action will be taken until the court rules.  Oral argument in the case is scheduled for tomorrow (March 23).

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Competitive Balance

Vintage BaseballIn sports law, the concept of “competitive balance” has played an important role as a justification for practices that would otherwise run afoul of the antitrust laws and the common law of unfair competition.  The conventional logic has it that unless teams in an individual sports league are reasonably competitive, fans of the weaker teams will lose interest, which will cause those teams to fold, which will in turn threaten the survivorship of the league itself.  Consequently, restraints on player mobility, like the amateur player drafts, salary caps, and reserve clauses, and territorial restrictions on franchise location and broadcast rights have been justified in the past (at least by their advocates) as necessary to maintain “competitive balance” in sports leagues.

Exactly what constitutes “competitive balance” and whether or not it has existed at particular times has been a matter of some controversy.  Should competitive balance be measured by the closeness of competition during an individual season, or should it be measured by the frequency with which different teams win championships?  Does competitive balance mean the same thing with regard to each sport?

Although the National Football League is often lauded for its competitive balance, within any given NFL season there is always great disparity between the winning percentages of the most and least successful teams.  For example, during the 2009 season, the Indianapolis Colts, the team with the best record (14-2) won 87.5% of its games while the St. Louis Rams, the team with the worst record (1-15) won only 6.3% of its games.  Overall, the Colts winning percentage exceeded that of the Rams by .812.

In contrast, in Major League Baseball in 2009, the winning percentage of the most successful team in the regular season, the New York Yankees, exceeded that of the worst team, the Washington Nationals, by only .272 (.636 to .364).  The 2009 gap in baseball was actually somewhat higher than usual; in 2000, admittedly a very balanced year, the gap between the best team, the San Francisco Giants, and the worst teams, the Chicago Cubs and Philadelphia Phillies, was only .196 (.597-.401).

The disparity between baseball and football is often attributed to the very short (in terms of number of games) NFL season.  While this may be part of the explanation, it is not the whole answer.  If one aggregates individual team records for the past ten NFL seasons (160 regular season games), the best team, the New England Patriots compiled a record of 112-48, for a winning percentage of .700, a mark exceeded in a single season by only three major league baseball teams over the past 70 years.  The worst team, the Detroit Lions, has a combined record of 42-188, for a winning percentage of only .262, a mark exceeded by only one baseball team (the 1962 New York Mets) since 1935.

Basketball season records also show much greater variation between the best and worst teams than is found in baseball.  If the NBA’s current best (Cleveland Cavaliers) and worst (New Jersey Nets) teams finish the season with their current winning percentages, they will have accomplished the equivalent of a major league baseball team finishing its season with a record of 126-36 and 16-146, respectively.  In the 134 year history of major league baseball, no team has ever done that well, or that poorly.  In the NHL, the performance range is more narrow, but still much broader than in Major League Baseball.

The following text, which I originally submitted to the Listserv of the Society of American Baseball Research, explores the status of the competitive balance questions in 1960, which was just before the modern explosion of the number of major league sports teams in the United States and Canada.  In 1960, there were a total of only 42 teams in Major League Baseball, the NFL, the NBA, and the NHL.  By 2004, that number had grown to 122.

Now that we are almost 50 years removed from the expansion of major league baseball that occurred in 1961, it makes more and more sense to use 1960/1961 as a dividing point in the “periodization” of baseball history.  Although relatively little changed in 1961 itself, it ushered in an era of significant changes in the way in which major league baseball was organized and, with the adoption of the designated hitter rule and the construction of multi-purpose stadiums, played.

This leaves us with three basic divisions—the Formative Era (1871-1900), the Golden Age (1901-1960), and the Modern Era (1961-present).  I will acknowledge that this choice of terminology has “Baby Boomer” written all over it.

At the end of the Golden Age, Major League baseball had achieved a measure of competitive balance missing in the highest leagues of other major sports.  The simplest measure of competitive balance is the index of how frequently lower performing teams defeat their higher performing counterparts.  If we rank the major league baseball teams of 1960 in regard to their final regular season records, we find that in almost 42% of games, the team that would finish lower in the standings at the end of the year nevertheless won the game.  In 1960, the lower ranked team came out victorious in 515 of 1232 games, for a winning percentage of .418  The NL was slightly more competitive than the AL, with its lower ranked teams having a winning percentage of .429, compared to .407 in the AL.

In the other sports, the teams that finished higher in the standings won much more frequently.  In the NHL season of 1959-60, higher ranked teams finished 113-61-36 in games with lower ranked opponents, which translates into a .376 winning percentage for the lower ranked teams (using the NHL’s system of counting a tie as the equivalent of one-half of a win).  In the NBA, the overall record of higher ranked teams was 211-89, which meant that the lower ranked teams won only 29.7% of the time.  The greatest disparity was in the NFL (in which teams played only 12 regular season games).  Not counting two games between teams that ended the season with identical records, the higher ranked NFL teams finished the season, 57-14-5, which translated to a .803 winning percentage by the method used at the time and to .783 by the current standards.  Either way, lower ranked teams won only about 20% of the time.

There were, of course, major league teams in 1960 that baseball fans considered “terrible,” particularly the Philadelphia Phillies (59-95) and the Kansas City Athletics (58-96), the last place finishers in their respective leagues.  However, the last place teams in the other leagues did much worse in 1960.  In the NFL, the Dallas Cowboys were 0-11-1, and the Washington Redskins 1-9-2 (defeating only the Cowboys).  The worst team in the NBA, the Cincinnati Royals, finished 19-56, which was the equivalent of 41-112 in baseball, while the last place finisher in the six-team NHL was the New York Rangers, whose record of 17-38-15 translates to 54-100 in 1960 baseball terms.

I am not arguing that this level of balance was a feature of major league baseball that developed only at the end of the Golden Age.  It may well have been the pattern throughout the history of major league baseball.  It is also my impression that the disparity between baseball and other major league team sports that can be seen in 1960 has continued into the modern age. However, I am suggesting that the factors that have led to greater competitive balance in baseball than in other sports do pre-date the modern era.

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