By Jeffrey B. Tracy*
Earlier this year, Major League Baseball and the National Football League were called into Congress to face questioning about incidents that arose within the organizations.
The House Committee on Oversight and Government Reform confronted MLB with questions concerning its players’ use of steroids. The NFL had its own problems, causing Commissioner Roger Goodell to face the Senate Judiciary Committee, and specifically Senator Arlen Specter, on allegations of misconduct in disposing of New England Patriot tapes of opposing teams’ signals.
Some sports fans argue on one side whether Congress has the right to interfere with professional sports, opining that Congressmen “just want to get their name in the paper,” or “are just jealous and want to have a part in bringing down people who are bigger stars than they are.” Others counter that Congress has every right to investigate scandals in professional sports.
This article addresses the legal merits of these positions.
MLB – The Steroids Saga
According to its website, the House Committee on Oversight and Government Reform “is the main investigative committee in the U.S. House of Representatives.” As such, “it has jurisdiction to investigate any federal program and any matter with federal policy implications.” Accordingly, this power gives the Committee the authority to conduct hearings and investigations on any subject which falls under the jurisdiction of Congress. Thus, the question becomes does MLB fall under the jurisdiction of Congress, thus making the investigations Constitutional?
The answer is yes for two reasons. First, the Controlled Substances Act, 21 USC § 801, gives Congress the power to regulate the use of performance enhancing drugs, steroids, and other controlled substances. Congressional authority and oversight powers are invoked since “a major portion of the traffic in controlled substances flows through interstate and foreign commerce.”1 In fact, the statute goes into great detail to explain exactly how the trafficking of controlled substances affects interstate commerce, thus allowing Congress to regulate the industry.2 Accordingly, since the MLB investigation relates to the sale, distribution, and use of controlled substances such as steroids, Congress has the power to investigate that use and that Congressional power is vested with the House Oversight and Reform Committee.
Secondly, and more controversially, “[f]or better or worse, professional baseball has long enjoyed an exemption from the antitrust laws.”3 Further, this exemption has been “crystallized” by three previous Supreme Court decisions, Fed. Baseball Club of Baltimore, Inc. v. Nat’l League of Prof’l Baseball Clubs, 259 U.S. 200 (1922), Tollson v. New York Yankees, Inc., 346 U.S. 356 (1953), and Flood v. Kuhn, 407 U.S. 258 (1972).4 As such, MLB has quasi-conceded to the investigation of its organization and players under its exempt status from federal anti-trust laws.
NFL – SpyGate
Congress’ investigation into the NFL’s Spygate Scandal provides a tougher Constitutional problem than MLB provided. For one, the National Football League has not been granted the same anti-trust exemption as has MLB. Accordingly, there is no clear cut power for Congress to investigate under that avenue. Secondly, there is no illegal activity (i.e. steroids) and no clear cut statute (i.e. 21 U.S.C. § 801) or federal agency (i.e. DEA) that gives Congress the power to regulate the NFL’s conduct like in MLB. If Congress has the power to investigate the NFL, that power will need to come through the Commerce Clause. The only question, however, is does the NFL’s conduct, and more specifically, the NFL’s destroying tapes, fall under the definition of commerce as laid out by the Supreme Court?
Article I, Section 8 of the Constitution provides, in part, that Congress shall have the power to “regulate commerce with foreign Nations, and among the several states, and with Indian Tribes.” Pursuant to this definition, the Supreme Court is forced to focus on defining commerce, “among the several states,” regulate, and the function of the Tenth Amendment and the protection of States’ rights under the Commerce Clause. While the Supreme Court has gone through four distinct eras in defining the extent of Congress’ power, the focus will be on the final two eras, 1937 through 1995 and 1995 through today to determine if Congress is acting within its power in investigating the NFL.
Between 1937 and 1995, the Supreme Court granted broad discretion to the federal government in using the Commerce Clause as a means for regulating industries and business. As such, during this era, the Courts gave Congress the power to regulate industries so long as there was a rational basis for the legislation,5 with the Tenth Amendment being handicapped down to a mere truism. Other decisions expanded the role of the federal government in the regulation of industries by allowing Congress to aggregate activities to fit it into the definition of interstate commerce.6 Congress even used the Commerce Clause as the source of power in which it could outlaw private discrimination in the Civil Rights Act of 1964 after the Supreme Court held that pursuant to section 5 of the Fourteen Amendment, Congress could only regulate government conduct and not private behavior. Thus, Congress used the Commerce Clause to enforce the provisions of The Civil Rights Act of 1964 against private citizens.7
In 1995, the Court, in a 5-4 decision, decided U.S. v. Lopez8, a case that would completely change the power given to Congress under the Commerce Clause. In Lopez, the Court declined to extend the Commerce Clause Power to a situation where an individual took a gun in a local school zone. The Court limited Congress’ power under the Commerce Clause to three circumstances: 1). The regulation of channels of interstate commerce (i.e. the terms and conditions on which goods and services are sold), 2). The instrumentalities of interstate commerce (i.e. trucking, shipping, air, etc.), and 3). Economic activities having a substantial impact on interstate commerce.
In holding against Congress’ power to regulate, the Court discussed the final of the three criteria in the most detail. First, the Court noted the noneconomic, criminal nature of the statue at issue.9 Second, the Court found that the statute at issue contained no express jurisdictional element was evident to show the connection with interstate commerce.10 Third, the Court noted that there was no legislative history indicating how and/or why the law affects interstate commerce.
Finally, the Court rejected “costs of crime” (i.e. hand guns leads to violent crimes and violent crimes has an affect on interstate commerce) and “national productivity” (i.e. guns threaten the educational process which produces a less efficient and productive workforce which would negatively affect national productivity) arguments as under those theories, “it is difficult to perceive any limitation on federal power. . . . Thus, if we were to accept the Government’s arguments [costs of crime and national productivity], we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”11
The Lopez three part analysis was first used in U.S. v. Morrison12, where the same majority struck down the Violence Against Women Act. After applying the Lopez factors, the Court held that gender motivated violence did not affect interstate commerce because, in part, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”13 Interestingly, the dissent stated that the rational basis test and aggregate effect should have been utilized, and that under those tests, the actions by Congress were Constitutional under the Commerce Clause.
Turning to the NFL destruction of tapes issue and Congress’ power to regulate, the first two categories of authority may be disposed of quickly as the NFL activity is not within a channel of interstate commerce nor is it an instrumentality of interstate commerce. As such, Congress’ only means of regulating NFL activities is if relates to an economic activity that has a substantial impact on interstate commerce, the third circumstance defined under Lopez.
The NFL’s destruction of tapes showing the taping of signals of an opposing team might not fall within the purview of what was intended to be regulated under the Constitution and the current Supreme Court’s decisions, thus precluding Congress from investigating. First, it is not an economic activity like the sale of wheat, establishing a restaurant, or selling a handgun. Second and third, there is no indication that Congress has laid out an express jurisdiction requirement or given a statute which demonstrates how and why NFL action substantially impacts interstate commerce.
Finally, in Lopez, the Court addressed the dangers of allowing Congress to regulate noneconomic activities that would give it the power to regulate nearly every kind of activity. Here, if Congress is allowed to regulate the NFL’s handling of its “in house” matters, Pandora’s Box will be opened for Congress to investigate the motive behind every trade, move, or action by the NFL. As such, an argument could be made that the NFL will no longer be able to institute its own punishment system, but instead will be forced to yield to Congress. Additionally, no longer will the NFL be allowed to enforce its own draft rules, trade guidelines, or player requirements, but instead will be forced to look to Congress for guidance. This Pandora’s Box type problem would be an issue for the Supreme Court to resolve, because if Congress is allowed to regulate the NFL, as they have done presently, then the same argument could be made to regulate the NHL, NBA, and the PGA Tour.
On the other hand, it could be argued that it is well settled that the NFL, overall, engages in interstate commerce, thus subjecting it to federal regulation under Article I, Section 8 of the Constitution, the Commerce Power.14 The premise behind this argument is that the NFL can be regulated because its entire business is economic in nature and substantially effects interstate commerce.
Further, the argument could be made that the destruction of tapes is economic in nature, as the NFL has a distinct economic interest in one of its teams being caught cheating, especially a team with as much prestige, prominence, and sales power as the New England Patriots. To lend credibility to this argument is the fact that the same day that Goodell was called to Capitol Hill, a former St. Louis Rams player and three fans sued the New England Patriots over allegations that the Patriots taped a Rams practice before the 2002 Super Bowl, which New England won.15 The plaintiffs are seeking millions, including punitive damages, and are alleging fraud, a “pattern of racketeering,” and unfair trade practices. As such, the argument could be made that Congress has the power to regulate an activity that could affect the earning potential and power of teams within the NFL.
Conclusion
Congressional investigations of professional sports teams provides a unique forum in which Constitutional law and Sports law intertwine into an area where, perhaps more than any other, the public has a genuine interest in the outcome. For MLB, Congress’ power to investigate its conduct is likely constitutionally safe. A decision on the continued existence of the congressionally mandated anti-trust exemption, however, has not been addressed in over 30 years. With the new members of the Court, perhaps it is time for the Supreme Court to take another look at the exemption.
For the NFL, the line is not clear. On one side, some could argue that the Commerce Clause does not give Congress the right to investigate the NFL’s destruction of tapes as it is not an economic activity. Further, the line where Congress could and could not investigate would be blurred (even more, perhaps than it already is) and would create a slippery slope for Congress to investigate any activity, a practice that the Supreme Court is cautious about. Alternatively, an argument could be made that a high-profiled sports team caught in a cheating scandal is economic in nature as it would impact the NFL’s profitability, royalties, and opposing team’s opportunity to win games and create more revenue.
*Jeffrey B. Tracy is an associate attorney with EldridgeCooperSteichen&Leach, PLLC. He is a graduate of the University of Tulsa College of Law. He can be reached at jtracy@ecslok.com
1. 21 U.S.C. § 801(3).
2. See the entirety of 21 U.S.C. § 801 at http://149.101.1.32/dea/pubs/csa/801.htm.
3. Major League Baseball v. Crists, 331 F.3d 1177, 1179 (11th Cir. 2003).
4. Id. at 1189, n. 1.
5. U.S. v. Darby, 312 U.S. 100 (1941).
6. Wickard v. Filbum, 317 U.S. 111 (1942).
7. Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964)
8. 514 U.S. 549 (1995).
9. Id. at 551, 560, 561, 566, & 567.
10. Id. at 562. Also note that 21 U.S.C. § 801 regulating Congress’ right to investigate the use of controlled substances contains an express provision indicating how and why controlled substances have an impact on interstate commerce.
11. Id. at 564.
12. 529 U.S. 598 (2000).
13. Id.
14. Radovich v. Nat. Football League, 352 U.S. 445, 452 (1957); see also Partee v. San Diego Chargers Football Co., 668 P.2d 674 (Cal. 1983).
15. Plaintiffs are asking a judge to certify a class of plaintiffs that would include anyone who purchased a 2002 ticket or attended the game, any owner of a Rams seat license for the 2001-02 season, and all Rams’ employees on the 2002 team.
