Professional Sport: Involuntary Servitude and the Popular Will

Michael Schneiderman, Professional Sport: Involuntary Servitude and the Popular Will, 7 Gonz. L. Rev. 63 (1971).

It is the thrust of John Kenneth Galbraith’s modern classic, The New Industrial State, that vital segments of American industry,
through planning, have liberated themselves from their traditional subjugation to “market” forces. Galbraith takes the view that in
these technologically advanced industries there has been a serendipitous failure of antitrust enforcement. It is his contention that
antitrust law, if meaningful in the context of the “market” and of traditional economics, is irrelevant to the contemporary “mature”
corporation. Antitrust justification passes with the movement of the corporation from the “entrepreneurial” to the “mature.” Nonetheless, numerous industries, including professional sport, remain simple enough in operation to permit their management to be entrepreneurial and individualistic rather than technocratic. Because these industries, unarguably, remain subject to traditional economic analysis, they also remain subject to traditional antitrust evaluation.
American industry avoided onerous governmental regulation during the period 1890-1935 because the Supreme Court agreed
that there was a constitutional dimension to its claim to freedom from regulation. The claim was, of course, that business enterprise
enjoyed a “substantive due process” right to this freedom. “Substantive due process” was thoroughly, perhaps irrevocably, discredited as a bar to state regulation of business during the second Roosevelt administration. The converse proposition, that governmental regulation of business might be constitutionally required, was neither forwarded nor challenged. It is the exploratory purpose of this article to introduce that proposition into our constitutional thinking. This shall be done through an essentially empirical study of freedom-denying practices in a single field, that of professional team sport. In traditional economic terms, the inference sought is that the adhesive restraints upon the freedom of the athlete, that will be examined, could not exist if there truly were business competition among the teams themselves. Through economic analysis, then, the failure of antitrust enforcement will be established as causative of the denial of civil liberties in professional team sport. In legal terms this means that non-enforcement or loose enforcement of the antitrust laws is governmental action, a consequence of which is that civil liberties are being denied in the professional sport field. As previously argued by this writer, the fifth and fourteenth amendments stand as a bar to such governmental action.’

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