356 BURTON, J., dissenting. violation of the Sherman Act, organized baseball, through its illegal monopoly and unreasonable restraints of trade, exploits the players who attract the profits for the benefit of the clubs and leagues. Similarly, in No. 25, the to reserve for the ensuing year. That no player on such a reserve list may thereafter be eligible to play for any other club until his contract has been assigned or until he has been released. "4. That the player shall be bound by any assignment of his contract by the club, and that his remuneration shall be the same as that usually paid by the assignee club to other players of like ability. "5. That there shall be no negotiations between a player and any other club from the one which he is under contract or reservation respecting employment either present or prospective unless the Club with which the player is connected shall have in writing expressly authorized such negotiations prior to their commencement. "6. That in the case of Major League players, the Commissioner of Baseball and in the case of Minor League players, the President of the National Association, may determine that the best interests of the game require a player to be declared ineligible and, after such declaration, no club shall be permitted to employ him unless he shall have been reinstated from the ineligible list. "7. That an ineligible player whose name is omitted from a reserve list shall not thereby be rendered eligible for service unless and until he has applied for and been granted reinstatement. "8. That any player who violates his contract or reservation, or who participates in a game with or against a club containing or controlled by ineligible players or a player under indictment for conduct detrimental to the good repute of professional baseball, shall be considered an ineligible player and placed on the ineligible list. "9. That an ineligible player must be reinstated before he may be released from his contract. "10. That clubs shall not tender contracts to ineligible players until they are reinstated. "11. That no club may release unconditionally an ineligible player unless such player is first reinstated from the ineligible list to the active list. "XIII. "That by reason of Plaintiff being placed and held on said ineligible list as hereinabove set out and the making of the aforementioned contract by the Defendants, the Defendant[s], and each of them, have 346 U.S. BURTON, J., dissenting. plaintiffs allege that because of illegal and inequitable agreements of interstate scope between organized baseball and the Mexican League binding each to respect the other's "reserve clauses" they have lost the services of and contract rights to certain baseball players. The plaintiffs also allege that the defendants have entered into a combination, conspiracy and monopoly or an attempt to monopolize professional baseball in the United States to the substantial damage of the plaintiffs. Conceding the major asset which baseball is to our Nation, the high place it enjoys in the hearts of our people and the possible justification of special treatment for organized sports which are engaged in interstate trade or commerce, the authorization of such treatment is a matter within the discretion of Congress." Congress, however, has enacted no express exemption of organized baseball from the Sherman Act, and no court has demonstrated the existence of an implied exemption from that Act of any sport that is so highly organized as to amount to an interstate monopoly or which restrains interstate trade or commerce. In the absence of such an exemption, the present refused since the 25th day of May, 1950, and still do refuse to allow Plaintiff to play professional baseball, and that Plaintiff has thereby been deprived of his means of livelihood, all to the Plaintiff's damages in the sum of $125,000.00." The complaint also contains a separate cause of action alleging that the defendants, by virtue of their agreements, have entered into a combination and conspiracy in the restraint of trade or commerce among the several states, and another cause of action alleging that the defendants have, by their agreements, combined to monopolize professional baseball in the United States. 11 E. g., Congress has expressly exempted certain specific activities from the Sherman Act, as in § 6 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 17 (labor organizations), in the Capper-Volstead Act, 42 Stat. 388-389, 7 U. S. C. §§ 291, 292 (farm cooperatives), and in the McCarran-Ferguson Act, 59 Stat. 34, 61 Stat. 448, 15 U. S. C. (Supp. V) § 1013 (insurance). And see Apex Hosiery Co. v. Leader, 310 U. S. 469, 501, 512. 356 BURTON, J., dissenting. popularity of organized baseball increases, rather than diminishes, the importance of its compliance with standards of reasonableness comparable with those now required by law of interstate trade or commerce. It is interstate trade or commerce and, as such, it is subject to the Sherman Act until exempted. Accordingly, I would reverse the judgments in the instant cases and remand the causes to the respective District Courts for a consideration of the merits of the alleged violations of the Sherman Act. 346 U.S. Opinion of the Court. AVONDALE MARINE WAYS, INC. v. HENDERSON, DEPUTY COMMISSIONER, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 44. Argued October 20, 1953-Decided November 9, 1953. The judgment in this case is affirmed on the authority of the cases cited. 201 F.2d 437, affirmed. Frank A. Bull argued the cause for petitioner. With him on the brief were Ashton Phelps, John W. Sims and Daniel Huttenbrauck. Melvin Richter argued the cause for the Deputy Commissioner, respondent. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Burger and Paul A. Sweeney. PER CURIAM. The judgment is affirmed. Davis v. Department of Labor, 317 U. S. 249; Kaiser Co. v. Baskin, 340 U. S. 886; Baskin v. Industrial Accident Commission, 338 U. S. 854; Bethlehem Steel Co. v. Moores, 335 U. S. 874. MR. JUSTICE REED took no part in the consideration or decision of this case. MR. JUSTICE DOUGLAS, concurring. I do not think this case belongs in the "twilight zone" of Davis v. Department of Labor, 317 U. S. 249, 256. Recovery was allowed under the Longshoremen's and Harbor Workers' Compensation Act for a death which occurred on a barge drawn up for repairs on a marine railway. Norton v. Vesta Coal Co., 63 F. 2d 165, was such 366 BURTON, J., concurring. a case and Judge Woolley dissented from a holding that a marine railway was not included in the statutory language, "any dry dock." As Judge Woolley explained, there are three kinds of dry docks. (1) A floating dry dock, as its name makes clear, floats on the water, the vessel resting on the bottom of the dry dock after the water has been removed. (2) A graven dry dock is dug into the land. The vessel floats in but rests on land once the water has been pumped out. (3) Finally there is the marine railway, on which the vessel is drawn out of the water, instead of the water being drawn away from the vessel. A ship is no more and no less on land when it rests in a graven dry dock than when it rests on a marine railway. The three types of dry docks are not different in kind; functionally they are the same. And I see no basis for concluding that Congress treated one differently from the others for the purposes of this Act. MR. JUSTICE BURTON concurs in the affirmance of the judgment of the Court of Appeals but does so on the ground relied upon by that court and by the District Court. This was that the Deputy Commissioner, in making the award, acted within the terms of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1426, 33 U. S. C. § 903 (a), in that the decedent, at the time of receiving his fatal injury, was engaged in cleaning a tank of a barge located on the ways of a marine railway, by means of which the barge had been hauled out of the Mississippi River for repairs. They held that his death resulted "from an injury occurring upon the navigable waters of the United States (including any dry dock)" as those terms are used in such Act. Avondale Marine Ways v. Henderson, 201 F. 2d 437, following Maryland Casualty Co. v. Lawson, 101 F. 2d 732, and Continental Casualty Co. v. Lawson, 64 F. 2d 802. |