The Curiously Confounding Curt Flood Act

Article by Nathaniel Grow

This Article provides a novel textualist interpretation of the Curt Flood Act of 1998, a relatively little-known statutory provision that partially repealed professional baseball’s controversial, judicially created antitrust exemption in only a single, limited respect.  Aside from allowing major league baseball players to file antitrust lawsuits against Major League Baseball, the Flood Act was intended to remain neutral regarding the continued vitality and scope of baseball’s exemption in all other respects, as Congress went to great lengths to emphasize throughout the legislative process. Despite these clear expressions of congressional intent, however, most subsequent courts and commentators have surprisingly interpreted the Flood Act quite differently, concluding that it in fact either expressly or implicitly endorsed broad antitrust immunity for professional baseball based on a single, imprecise passage in the statute.  The implication of these analyses is that the judiciary now lacks the power to modify or repeal baseball’s antitrust immunity, with the exemption instead having effectively been codified by Congress.

This Article contends that future courts should reject the majority interpretation of the Flood Act and instead construe the statute neutrally in most respects, as Congress intended.  While other commentators have previously argued that the Flood Act should be read narrowly in light of its legislative history, this Article advances a novel textualist interpretation of the Flood Act.  In particular, it asserts that when properly read, the Flood Act neither codifies baseball’s antitrust exemption nor reflects congressional acquiescence in most aspects of the sport’s immunity.  Therefore, the Article concludes that the judiciary retains the power to reconsider baseball’s antitrust status should a future court wish to do so.

About the Author

Associate Professor of Legal Studies, Terry College of Business, University of Georgia.


90 Tul. L. Rev. 859 (2016)