Within the academia, two very different groups of legal scholars have devoted a great deal of attention to Flood v. Kuhn. Those specializing in sports law have either attached Flood as a ridiculous decision that improperly distinguished between baseball and other professional sports, or have praised it for waging guerrilla warfare on the idea that Section 1 of the Sherman Act should apply to intra-league arrangements by owners of the professional sports teams. Those viewing Flood through the lens of statutory interpretation perceive the decision as adhering rigidly to the principle of stare decisis; this rigidity has been both praised and criticized, and Flood has also been attacked for unjustifiably relying on legislative inaction to infer congressional support for earlier precedents.
In this Article, an alternative theory is sketched. Although Justice Blackmun's majority opinion in Flood was eminently sensible in 1972, as a matter of both judge-created sports law doctrine and the legisprudential application of stare decisis, this is no longer the case. In 1972, Justice Blackmun and his colleagues in the majority were justifiably concerned that applying the Sherman Act to professional baseball might ruin our "National Pastime." However, a brief look at subsequent developments in baseball and in antitrust law clearly demonstrates that the situation has changed. Read in its full context, rather than mechanically, the majority opinion in Flood applies a fact-based legisprudential standard to questions of stare decisis, not the formalistic approach that some have attributed to it. Flood represents neither an unthinking invocation of the dead weight of precedent, nor an unsophisticated and unwarranted deference to a congressional failure to overturn the Court's prior decisions. Rather, its holding is much more limited. Flood reveals that the Court will adhere to a precedent where it perceives that reliance interests are strong and that the public interest is better served by preserving the precedent. Under this reconsidered view of Flood, the Supreme Court today should reach the opposite result and subject baseball to antitrust scrutiny.
Stephen F. Ross, Reconsidering Flood v. Kuhn, 12 U. Miami Ent. & Sports L. Rev. 169 (1995).