It takes a scholar of uncommon empathy to shine a light on potential antitrust violations whose purported victims are athletes already earning millions of dollars. Yet one comes away from Lew Kurlantzick’s recent article “The Tampering Prohibition and Agreements Between American and Foreign Sports Leagues,32 Columbia Journal of Law and the Arts 271-331 (2009) convinced that antitrust concerns here are real.
If management consulting Firm X is free to approach a junior analyst at Firm Y about jumping ship when her contract expires, why should the Yankees be barred from speaking with a member of the Red Sox about playing for the Yankees next year? Such conduct is now barred by league rules against tampering, rules whose legality has not yet fully been adjudicated. Lew carefully dissects the rationales for an antitrust exemption for pro sports’ existing ban on tampering, and most collapse under his analysis. Yet one justification for anti-tampering rules does capture his allegiance. Sports leagues need to create the appearance that every player is giving his all, not dogging it for team A because he’s already making plans to play for team B next year.
What difference is there, you might ask, if one rejects many rationales for existing law, as long as a single rationale proves persuasive? Making superb use of the maxim “cessante ratione legis, cessat et ipsa lex” Lew demonstrates that although a ban on tampering may be justifiable, certain aspects of current law are essentially indefensible. If the goal is to protect the appearance of fairness throughout the league, why should a league permit team A to talk with a player for team B simply because Team B has consented to the contact? Why should the ban on tampering extend to teams in foreign leagues where the threat to the appearance of competitive integrity is much less? Lew then turns a similar, critical eye toward the indisputably cartel-like behavior in which foreign leagues make deals with U.S. leagues that prevent teams here from luring foreigners while the players remain under contract overseas. Unsurprisingly, he raises suspicions that some of these agreements go too far in permitting anti-competitive arrangements.
Above all, one comes away from this finely-crafted article with new found appreciation for the paradoxes implicit in laws that ban freely-agreed upon market transactions in the name of promoting a free market. If one goal of antitrust law is to keep prices lower for consumers, should we not applaud arrangements that keep ticket prices down by placing some downward pressure on salaries? If, as Lew speculates “team harmony” or “promotion of amateurism” might be valid reasons to permit Japanese teams to cap the number of foreigners or NCAA teams to ban payments to athletes, should major league teams be permitted to defend collective salary caps on grounds that the league wants to deliver an “apple-pie” sports product with tickets affordable for the average American? Do we really have a system outside of sports in which tampering with the employees of others is readily permissible, or do the many exceptions Lew cites such as trade secret protection, professional obligations to clients, etc. produce a more complicated system than is apparent at first blush. Answers to all such questions may prove elusive, which is why future writing is likely to prove fruitful. Congratulations Lew.