Radovich v. National Football League/Dissent Harlan

Mr. Justice HARLAN, with whom Mr. Justice BRENNAN joins, dissenting.

What was foreshadowed by United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290, has now come to pass. The Court, in holding that professional football is subject to the antitrust laws, now says in effect that professional baseball is sui generis so far as those laws are concerned, and that therefore Federal Base Ball Club of Baltimore v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, and Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64, do not control football by reason of stare decisis. Since I am unable to distinguish football from baseball under the rationale of Federal Base Ball and Toolson, and can find no basis for attributing to Congress a purpose to put baseball in a class by itself, I would adhere to the rule of stare decisis and affirm the judgment below.

If the situation resulting from the baseball decisions is to be changed, I think it far better to leave it to be dealt with by Congress than for this Court to becloud the situation further, either by making untenable distinctions between baseball and other professional sports, or by discriminatory fiat in favor of baseball.