State v. Milwaukee Braves, Inc.
| Decision Date | 27 July 1966 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. MILWAUKEE BRAVES, INC., et al., Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
Ray T. McCann, Milwaukee, Wilkie, Farr Gallagher Walton & Fitzgibbin, New York City, Louis F. Carroll, Bowie K. Kuhn, Louis L. Hoynes, Anthony J. Lynch, New York City, of counsel, for all appellants but Atlanta Braves.
Winston, Strawn, Smith & Patterson, Chicago, Ill., Earl A. Jinkinson, Edward J. Wendrow, John W. Stack, Chicago, Ill., of counsel, for Atlanta Braves.
Bronson C. La Follette, Atty. Gen., George F. Sieker, Asst. Atty. Gen., Madison, Robert P. Russell, Corp. Counsel, Milwaukee County, Milwaukee, Willard S. Stafford and John A. Hansen, Madison, Sp. Counsel for State, Steven E. Keane and John P. Eppel, Milwaukee, of counsel for Milwaukee County, Sp. Asst. Corp. Counsel, Louis F. Oberdorfer and Max O. Truitt, Jr., Washington, D.C., Sp. Counsel for the State, for respondent.
It seems crystal clear that under today's structure of organized professional baseball, defendants and the members of the American League have complete power to control participation in major league baseball, and to control the number of teams and the location of their home games; that although the power is shared with the American League, defendants nevertheless have very substantial and effective power of control; that major league baseball, as now carried on, is a business in which large sums are invested, and substantial gains received by players and owners, and that many other business activities are generated by and dependent upon it; that all the continuous interaction which constitutes major league baseball, and which holds the interest and support of the public has for 13 years reached into Wisconsin, but it now operates entirely outside this state; that defendants have, by agreement among themselves to transfer the Braves, terminated very substantial business activity in Wisconsin, and are totally and effectively preventing its resumption at the present time. On their face, these facts support a conclusion that there is a combination or conspiracy in restraint of trade and commerce, declared illegal by the first sentence of sec. 133.01, Stats., as well as a combination to monopolize trade, under the third sentence of the section.
The defense to a charge of violating that section appears to be grounded upon three principal contentions:
(1) Sec. 133.01, Stats., does not apply to this type of business;
(2) State regulation of the location of franchises and admission to the League would conflict with congressional policy and unreasonably burden interstate commerce;
(3) If the state has any power to proscribe a decision to transfer a franchise unless reasonably arrived at, the Braves' decision to move from Milwaukee and the concurrence of the other defendants were reasonably arrived at.
1. Applicability of sec. 133.01, Stats. It is the contention of defendants that the exhibition of major league baseball games is the supply of a service, not an article or commodity, and that sec. 133.01 prohibits only restraints of trade or commerce in articles or commodities. The claim is that the second sentence in the section restricts the meaning of the first and third sentences.
There are six sentences in Sec. 133.01(1), Stats., but only the first three need be considered in this context. The first sentence provides:
'Every contract or combination in the nature of a trust or conspiracy in restraint of trade or commerce is hereby declared illegal.'
The second sentence, condensed, provides that every combination, etc., 'intended to restrain or prevent competition in the supply or price of any article or commodity * * *' or which 'shall in any manner control the price of any such article or commodity, fix the price thereof, limit or fix the amount or quantity thereof to be * * * sold in this state * * * is hereby declared an illegal restraint of trade.'
The third sentence, condensed, provides that every party to any combination, etc., 'herein declared unlawful or declared to be in restraint of trade, or who shall combine or conspire with any other person * * * to monopolize or attempt to monopolize any part of the trade or commerce in this state shall forfeit for each such offense not less than $100 nor more than $5,000.'
The language is open to the construction that the second sentence is a specific declaration that certain types of combination with respect to the supply or price of an article or commodity are illegal restrainsts of trade, but that the first sentence of sec. 133.01(1), Stats., still embraces other types of restraint of trade not specifically enumerated or described. The third sentence, which imposes a forfeiture, is consistent with this construction, for it imposes a forfeiture on a party to a combination 'herein declared unlawful' (first sentence) 'or declared to be in restraint of trade' (second sentence). It also suggests broad rather than narrow construction of the section, by imposing a forfeiture on anyone who shall conspire to monopolize any part of the trade or commerce in this state.
The first sentence is identical with sec. 1, ch. 219, Laws of 1893. Sec. 2 of that act imposed a forfeiture for monopolizing or conspiring to monopolize trade or commerce and sec. 5 allowed recovery of damages. The act contained no provision limited to articles or commodities. In the Revised Statutes of 1898, secs. 1, 2 and 5 were combined into sec. 1747e. The second sentence of present sec. 133.01(1) was inserted by amendment of sec. 1747e by ch. 458, Laws of 1921. There is even less reason for supposing that the second sentence was an exclusive definition of the restraint of trade declared illegal by the first sentence or of the type of monopolization proscribed by the third sentence than if it had been part of the statute when first enacted.
Sec. 133.21, Stats., contains language very similar to the second sentence of sec. 133.01(1) and provides that any corporation which shall enter into any combination so described, with respect to an article of commodity, shall have its charter canceled The source of this section was ch. 357, Laws of 1897, later appearing as sec. 1791j--1791m, R.S.1898. Defendants call our attention to an opinion of the attorney general, 1908 Op. Atty. Gen. 495, stating that a combination of insurance companies seeking to regulate commissions paid to agents did not violate sec. 1791j because an agent's services are not a commodity. No reference was made to sec. 1747e in that opinion.
This court, however, in 1914, pointed out that sec. 1747e was taken from the Sherman Act and should receive the same interpretation as that which was placed in the federal act by the supreme court of the United States. 1
Defendants call our attention to the defeat in 1949 of a bill to amend the second sentence of sec. 133.01(1), Stats., by adding the words 'or service.' It appears that there had been a circuit court decision stating as dictum, that sec. 133.01(1) would not apply to contracts fixing the prices of personal services. Although the defeat of the bill is consistent with defendants' position, we conclude that the insertion of the second sentence in 1921 did not limit the broad language of the first or third sentences to the types of combination described in the second.
Defendants also contend that because of the policy of this court of construing sec. 133.01, Stats., consistently with constructions of the Sherman Act, as pronounced by the supreme court of the United States, we should read into our statute the anomalous exemption from the federal act which organized baseball uniquely enjoys. The history of the development of this exemption will be noted elsewhere. Because of such history we do not deem the relevant decisions the type of construction of the meaning of the federal statute which ought to apply to our own.
2. The power of the state to apply its antitrust law in this instance. We are dealing with the very fabric of the organization of commercial baseball, the power over participation in this activity which results from the fact that there is an organization, and, in this particular instance, an exercise of such power to the detriment of a community. One of the difficulties in dealing logically with such matters arises from the fact that the leagues have evolved along with the growth of organized baseball and that major league baseball as we know it is inseparable from the existence of leagues, some degree of control over free competition among teams and players, and some limitation of the number and capability of the constitutent teams.
For an interesting history of the hundred-year evolution of the 'organization' of commercially-exhibited baseball, see Report No. 2002, House of Representatives, 2d Session, 82d Congress, 'Organized Baseball,' resulting from hearings of the Subcommittee on Study of Monopoly Power of the Committee on the Judiciary, May 27, 1952.
As part of its Conclusion, the Subcommittee said, at p. 229:
At least two courts have recognized the unique business character of organized professional sports and the necessity for a league structure. 2 In United States v. National Football League 3 it was stated:
'Professional football is a unique type
'Professional football is a unique type of business. Like other professional sports which are organized on a...
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