CHAPTER ONE
Introduction
In May 1987, during a commemorative speech on the bicentennial of the United States Constitution, associate Supreme Court justice Thurgood Marshall observed, âthat the true miracle was not the birth of the Constitution, but its life.â He argued that the amendments added in quest of the Constitutionâs promise has been, in fact, proof of the documentâs continued heartbeat through the centuries.1 Additionally, civil war, territorial expansion, evolution of commerce, and a quest for civil liberties and rights, in one manner or another, all contributed to the nationâs changing legal profile as Americans strove to achieve the constitutional ideals they held sacred in their democracy.
Within this American democracy, sport, too, played a vital role in the construction of what Marshall called the Constitutionâs âpromising evolution through 200 years of history.â As recreation matured beyond that of a simple leisure activity and into a huge commercial institution, athletics and standout athletes were lifted onto a pedestal that magnified a romanticized vision of the nation. In reality, however, sport also mirrored the problems that, too often, blocked the path to true equality on many fronts. With the Constitution well past 150 years in existence by the middle of the twentieth century, Americans still wrestled with the albatross of race and gender discrimination that had plagued the nation since its origins, as well as new legal challenges on such topics as collective bargaining, corporate collusion, and international human rights, among others. For many, by the end of World War II, the promise of a fair shake and opportunity seemed, at the very least, quite unpromising.
In step with Marshallâs vision of a âlivingâ document, sport and jurisprudence provided a unique alliance as a participant in the evolutionary process of constitutional law. As seen in US Supreme Court landmark cases, lower-level decisions, events, activism, and commercial practices, sport as a distinct feature in the legal arena helped to change public policies and the often-discriminatory means by which they were practiced. Moreover, legal decisions that involved athletics and their participants contributed to new observations and questions in redefining constitutional interpretations. After 1945, sport and the law were not mutually exclusive, but a joint and
powerful tool that helped to raise awareness of societal shortcomings and to advance the quest of reaching the American ideals of equality and justice.
Sport and the Law: Historical and Cultural Intersections is a collection of essays that capture the personalities and events brought together in different lawsuits. The book provides a significant means to observe and analyze how sport and the law helped to create change in American society, but also examines how sport and the law factored into the larger human saga and the manner in which people tackled the issues of their day. The focus on postâWorld War II cases is the result of the increased dynamics in the relationship between American society and sport. To be sure, there did exist some significant legal cases prior to this period. However, after 1945, with a larger middle class and an explosion of mass media, sport, as never before, grew increasingly tied to such divisive issues as the civil rights movement, the Cold War, Vietnam, feminism, and transnationalism. Moreover with participants and consumers on the rise, the national media exhibited its immense presence and disseminated information on a grand scale. Ultimately, judicial decisions that involved sport or sports figures took on a new level of significance that, beyond the athletic arenas and playing fields, impacted the lives of all in the changing profile of the nation that emerged after World War II.
Essays by scholars in American Studies, History, and Law, are divided into three sections: âThe Burger Supreme Court and Sports,â âAntitrust Law and Sports,â and âThe Impact of Sport on Law,â which explore some of the cases in which sport and law intersect and the impact the cases had on American society. Note, however, that many of these essays transcend the theme of the section in which they have been placed; almost every essay, in fact, could be placed in multiple sections. For example, the topic of antitrust law appears in Sarah K. Fieldsâs analysis of Haywood v. NBA (1971) and Richard C. Crepeauâs work on Flood v. Kuhn (1972), but these essays are located in âThe Burger Supreme Court and Sports,â along with Samuel O. Regaladoâs âClay, aka Ali v. U.S. (1971): Muhammad Ali, Precedent, and the Burger Courtâ and Steven P. Gietschierâs âHow the Burger Court Came to Beâ largely because all three legal cases were decided by the Supreme Court under Chief Justice Warren Burger.
The section on âAntitrust Law and Sportsâ includes an essay by Ron Briley examining the Danny Gardella lower-level 1948 court case regarding free agency and baseball and Thomas M. Hunt and Janice S. Toddâs examination of Franz v. United States Powerlifting, exploring how the liftersâ antitrust challenge against a single governing body actually fragmented the sport. Both of these studies are significant in the world of antitrust and sport even though none was adjudicated at the Supreme Court level.
Although all the essays could fit into the third section on âThe Impact of Law on Sports,â those in this section focus on legal issues, which have immediate implications for the present-day human rights issues. Anne L. DeMartiniâs analysis of RenĂ©e Richardsâs 1976 lawsuit against the US Tennis Association and its due process ramifications is now timely because of the increasing public discussion of the rights of transgender and transsexual athletes. Human rights issues, found in another essay by Arturo J. Marcano and David P. Fidler, were also the embodiment of transnational business tactics by which Major League Baseball treated its Caribbean recruits as commerce while it danced around reform measures that called into question its dubious behavior with under-aged prospects. Finally, similar calls for reform in the quest for fairness are found in the case of Ed OâBannon, discussed by Daniel A. Nathan. OâBannonâs lawsuit attempts to regain control of his own image for commercial purposes. Nathan maintains that the lawsuit has lent itself to the larger argument over the validity of the National Collegiate Athletic Associationâs definition of amateurism. In critically placing the relationship of athletics and jurisprudence in a historical context, Sport and the Law argues that lawsuits and sport helped to shape what Justice Marshall described as the Constitutionâs continued âevolution.â
Sport and the Law is intended for both an educated lay and scholarly audience as well as for college programs of study in law, sport, American studies, and history. Although the essays themselves are examples of detailed and thoughtful scholarship, they are written in an accessible, jargon-free manner that assumes no prior knowledge of legal, historical, or jurisprudential theory on the part of the reader. While other books have focused on the effect of law and case law on the field of sport, very few, if any, have placed the sports case law into a detailed historical and cultural context that breathes life to the legal decisions, those that had a profound impact on American sport, law, and society. Each chapter introduces the reader to the legal case or topic in clear detail and explains the legal context of the topic, and then each chapter explores how the topic fits into the broader American social fabric and the multilayered implications of the case. Further, each chapter considers how the specific sports law case did or did not impact the broader legal issues; for example, the Muhammad Ali chapter considers how the case brought into focus the parameters on defining conscientious objector cases, which better protected the rights of petitioners. In all, Sport and the Law: Historical and Cultural Intersections provides for the reader the opportunity to see immediately the interconnecting threads that weave the law and American sport and society together.
SECTION I
THE BURGER SUPREME COURT AND SPORT
The Burger Court was a Supreme Court of transition in a time of turmoil, and the Court itself was changing. This change was noteworthy during the Court terms of 1971 and 1972 when the three cases in this section were decided. In 1971, when the Clay v. United States and Haywood v. NBA decisions were rendered, Warren Burger was the chief justice and the associate justices were William Brennan, Hugo Black, Harry Blackmun, William O. Douglas, John Harlan II, Thurgood Marshall (who did not participate in Clay because he had been solicitor general when the case began), Potter Stewart, and Byron White. By the 1972 term, William Rehnquist had replaced Harlan and Lewis Powell had replaced Black. Powell, however, recused himself from Flood v. Kuhn because he owned stock in Anheuser-Busch, which owned the St. Louis Cardinals.
The Burger Court as a whole was a transition from trending liberal to trending conservative. The previous chief justice, Earl Warren, had led a Court from 1953 until 1969, which was generally viewed as liberal. The Warren Court was noted for landmark decisions like Brown v. Board of Education, one that ended racial segregation in schools, and Miranda v. Arizona, a decision that required police to inform arrestees immediately of their Constitutional rights. The new president Richard M. Nixon appointed Warren Burger chief justice in 1969 after Warrenâs retirement largely because Nixon believed Burger to be a very different jurist than Warren. The Warren Court did not rely on strict construction of the Constitution; that Court had often relied on ethical principles in deciding cases rather than upon narrow interpretations of the law. In his campaign, Nixon had promised to move the Court to the right and to appoint strict constructionists to the bench. Burger was one of the most important of these appointments.
Despite Nixonâs expectations, however, the Burger Court did not make a quantum shift and become overtly conservativeâthat would occur more dramatically after 1986 when another Nixon appointment, William Rehnquist, moved from associate justice to chief justice. The Burger Court legacy included Roe v. Wade, which prohibited states from making abortions illegal, and Swann v. Charlotte-Mecklenburg Board of Education, which allowed busing to reduce racial segregation in public schools.
The political and social strife in the early Burger Court period was the nationâs chaotic landscape with issues of war, race, and age constantly contested. Sport lurked persistently at the edges of many of these dynamic issues. President Nixonâs arrival in the Oval Office resulted in an expansion of the Vietnam War and thus an expansion in the vociferousness of its opponents. One of the more dramatic tensions in those protests came in 1970 when Ohio National Guardsmen fired into a crowd of protesting students at Kent State University, killing four. In the midst of the social battle over the war and in part because of the incongruousness of drafting men too young to vote into the military, the Twenty-Sixth Amendment to the US Constitution granting eighteen-year-olds the right to vote was adopted in July 1971. More positively, Nixon during this time was also engaged in developing a relationship with China, part of which was cemented by so-called ping-pong diplomacy with the exchange of table tennis players.
Sport and politics vividly came together in this era at the 1972 Olympics in Munich, Germany. During the second week of the games, terrorists with Black September invaded the Olympic village and took eleven Israeli athletes and coaches hostage, demanding the release of various Palestinian prisoners being held captive in Israel. Two hostages were killed in the initial takeover; the remaining hostages died during an attempted ambush at the Munich airport by the German police. David Berger, born in Cleveland, Ohio, and who had immigrated to Israel after graduate school, was one of the hostages. President Nixon dispatched an air force jet to return his body to Cleveland for internment. Americans learned of the tragic end to the standoff when sports reporter Jim McKay told the nation âtheyâre all gone.â1 Reflecting the contentious world outside of the Supreme Court, the Burger Court decided three cases involving race, youth, war, and freedom.
CHAPTER TWO
Clay, aka Ali v. U.S. (1971)
MUHAMMAD ALI, PRECEDENT, AND THE BURGER COURT
Samuel O. Regalado
By all appearances, April 28, 1967, was not a normal day at the United States Armed Forces Examining and Entrance Station on San Jacinto Street in Houston, Texas. Though protestors to the war in Vietnam stood outside to express their disenchantment with the draft, to the staff working there, this did not seem out of the norm. But on this day, Muhammad Ali, the heavyweight boxing champion of the world, appeared on the sidewalk on his way for apparent induction into the military. âDonât go! Donât go!â chanted some from the gathering crowd.1 Other protestors shouted, âDraft beerânot Ali!â H. Rap Brown, there for the Student Nonviolent Coordinating Committee, led the cheers and exchanged the black powerâraised first sign with the champ.2
Ali did not disappoint his supporters. After he entered the building, he calmly followed the instructions given to him that included a physical examination and the filing of applications. By that afternoon, all that remained was for the new recruit to board a bus for formal entry into the armed services. However, when the officer in charge twice barked out the name âCassius Clay,â Ali stood still. Officials led him away and advised the champ that should he continue to balk, a federal prison sentence was his likely end. Aware of his circumstances, Ali wrote a statement: âI refuse to be inducted into the armed forces of the United States because I claim to be exempt as a minister of the religion of Islam.â3
With these words, Muhammad Ali took the initial legal steps on a path that, four years later, eventually landed at the feet of United States Supreme Court. Though he faced tremendous odds, the heavyweight champ who was a black Muslim confronted the United States Government with the type of resolve that he always carried into the ring. His claim rested entirely on the grounds that he was a conscientious objector to war. As a result, Ali became a lightning rod during one of the most contentious periods in United States history. Furthermore, by the time his case reached the court of Warren Burger, the very meaning of the term âconscientious objectorâ had, by virtue of legal precedent, been redefined. Thus, although Ali had gained global recognition for his achievements in boxing and his outspoken comments on race in America, at issue in Clay, aka Ali v. U.S. was neither sports nor race, but a matter of law and how it was defined.4 At the outset of this odyssey the news of Aliâs actions in Houston predictably triggered harsh reaction.
Aliâs religious convictions and celebrity standing mattered little to his critics. For instance, on the very day that he left the armed forces station in Houston, one flag-waving woman in his path yelled, âYouâre headinâ straight for jail! You get down on your knees and beg forgiveness from God! My sonâs in Vietnam and you are no better than he is. I hope that you rot in jail.â5 In reality, Ali, who had by then taken a public position against the Vietnam War, saw criticism against him on the rise for several months prior to his date in Houston. Thus, the pro-war protestor he encountered at the induction center was only the latest in a growing avalanche of feelings against him.
A year and a half earlier, Aliâs position first appeared on the national media radar screen when he blurted to a reporter that âI ainât got no quarrel with them Vietcong.â6 His perspective, then, was initially driven by his attitudes on race. But as he traveled throughout the country and fielded questions, he learned that the complicated nature of the war was one of much greater depth. As such, throughout 1966, he strove to better understand the many fronts of the Vietnam War and, in doing so, stiffened his political stance against the conflict. United States policymakers, he concluded, acted duplicitously in their attempts to impart democracy in a foreign land while race relations in his own country were tenuous, at best. Moreover, as the intensity of the war and the casualty figures increased, he viewed the war as being immoral. As he toured the country with this message, critics mounted their own campaign against him.
Old-school sportswriters, who saw the Joe Louis prototype as the model for appropriate black behavior for athletes at the level of a heavyweight champion, led the charge. Mocking Ali by describing him only by his birth name, Red Smith wrote, âCassius makes himself as sorry a spectacle as those unwashed punks who picket and demonstrate against the war.â7 As popular opinion increased against him, even his own attorneys wilted over the prospects of facing US lawyers on the issue of the draft. âIt looks like trouble, Champ,â said Hayden C. Covington. âThis isnât like any case Iâve had before. They want to make an example out of you,â he warned.8
Covington was correct. On the very day of Aliâs refusal to be inducted, even though no official charges had been levied against him, the New York Athletic Commission suspended him.9 Shortly thereafter, the World Boxing Association stripped him of his title. But Ali was unrepentant. In fact, only minutes after his induction episode, he recalled a sense of euphoria: âthis is the biggest victory of my life. Iâve won something thatâs worth whatever price I have to pay.â10 As spring turned into summer, government attorneys mounted their case against one of the most high-profile figures of that era. As they prepared to take on Ali, the champ had his supporters. ...