But in football the pull is east and west. You ought to see a Grey Cup game! It even suppresses the animosity over the French and English languages. That’s why we can’t allow American-style football in Montreal and Toronto and Vancouver. Then the emotional pull would be north and south, out of Canada. And the Grey Cup would be nothing compared to the Super Bowl. American football would be destructive of Canadian unity.
It was during a Monday-night NFL half-time show that I first became aware that football games had become a heady mix of patriotism, sex, violence and religion. A bloody first half had barely ended when hordes of personnel flooded the field, carrying flags, and trumpets, and small cannon, and rifles, and Bibles. They were joined by eighty-six scantily clad girls in age groups ranging from fourteen years old to twenty-five. This was a combination of American values hard to beat, with marines and rabbis and priests adding sanction to the affair. It was difficult, at times, to tell whether I was in a strip-tease show, an armory, a cathedral or a ball park.
Anyone seeking the ultimate in such foolishness, plus a frank lampoon of our pretentiousness, ought to read the description of the half-time extravaganza produced at the imaginary Super Bowl game in Dan Jenkins’ Semi-Tough. It requires four irreverent pages, 191–94, for the procession of fighter planes, marching units, long-stemmed American beauties and praying clergymen to pass.
Or perhaps you watched the half-time show at the Orange Bowl on January 1, 1975, when the pageantry set a new world’s record for display and participants. Everything led up to this stirring climax:
NARRATOR: America, the dream of a faithful few, who desired to bring into reality a nation of which they could be justly proud … where government by, for and of the people would be the ultimate goal, Steadfast these honorable forefathers stood … even laying down their lives for a cause they believed to be Just … now the mantle has been passed to another generation … to those who believe that ‘from sea to shining sea’ America is the greatest country on earth.
(On band crescendo America, America, God shed His grace on thee, giant flag begins to be unfurled. Flash bulbs ignited on cue.)
And now to honor America, let’s all join in the singing of our National Anthem.
(Band strikes up. Audience participation. Dancers dance. Streamers open. Star umbrellas light on cue. All exit triumphantly.)
The dubious union of sports and religion ran into some heavy weather on Monday night, December 2, 1974, when the Miami Dolphins played host to the rampaging Cincinnati Bengals. Just prior to the game, a crucial one for both teams, Reverend Richard J. Bailar, of the local United Church of Christ, asked benediction on the night’s proceedings. It could be called the prayer heard round the nation; trouble began with the fifth word:
Creator God: Father and Mother of us all: We give you thanks for the joy and excitement occasioned by this game. We pray for the physical well-being of all the gladiators who run the gamut of gridiron battle tonight … but, knowing that the tigers are voracious beasts of prey, we ask You to be especially watchful over our gentle dolphins. Limit, if You will, the obfuscations of Cosell’s acidulous tongue, so that he may describe this night truly and grammatically as it is … A great game, in a great city, played before Your grateful children, on whom we ask peace and shalom. Amen.
The last word of the invocation had barely echoed through the appreciative stadium when hell broke loose. The objections, so far as I was able to codify them later, were these: 1) The God of football could never be a Mother. He is a God of wrath and He strikes irreverent people like Reverend Bailar dead. 2) The fine American young men who play football, even those from Cincinnati, are not gladiators. 3) It was blasphemous to refer that way to the Bengals and Dolphins. 4) God has nothing to do with Howard Cosell, and to make fun of his, that is, Cosell’s, grammar was ungenerous. 5) All the players and most of the spectators are Christians, and to use the word shalom was an insult to them. 6) But primarily, football is a sacrosanct matter, and so is religion, and to treat either in a jocular manner is impudent; to joke about both is sacrilegious and warrants the judgment: ‘That son of a bitch ought to be shot.’
From reading the Miami newspapers—and remember that sportswriters are a major cog in this seamless welding of patriotism, sex, religion and violence—I got the impression that our total society had rejected Reverend Bailar’s prayer. Certainly Reverend Archie Davis, of the local Presbyterian Church, had. Next day he fired off a letter to the Miami Herald which launched public discussion of the affair: ‘I was on my way into the Orange Bowl on Monday night with headphone radio tuned in when the Invocation was made. I could not believe what I was hearing.’ After severe criticism of the event, he concluded: ‘I don’t think he offended God, because I don’t feel that God heard him.’ In a private letter to me, Reverend Davis expanded his thesis:
Theologically, let me say that I think he came to God in prayer in a flippant manner and not in a reverent manner, and I think that any time we approach God, that we ought to do it whether it is at a ball game, or in private, in a sense of aweness and reverence. The language of the prayer and the contents drew laughter from the crowd, after each sentence. To me, this is a mockery of prayer. Being a Christian minister, prayer should be based on Christology. We come through Christ who is our Advocate, and He pleads our cause before God the Father. He ended with A-men and not in Jesus’ name, and in my opinion, the prayer did not make a dent in the mind of God.
I found it difficult to believe that Americans in general had failed to see in Reverend Bailar’s prayer the exact balance between levity and faith that an invocation at a football game warranted, so I communicated with Bailar, and he sent me a detailed letter with these relevant sentences:
When I say deluge of requests I have literal reference to the flood of written and phoned requests for copies. The news services had picked it up and evidently it was printed in every major paper in the country. The overwhelming response, about seventy-five to one, was of acceptance, praise, gratitude and ‘right on.’ Nothing in my twenty years of ministry had elicited the reaction of that forty-three-second invocation (extended another thirty-two seconds by applause, to the dismay of ABC’s national timing), which is both humiliating and humbling, frustrating and gratifying. My picture and prayer reportedly are displayed in bars catering to sports folk; I am stopped in stores for my autograph. In short, I have momentarily become a minor celebrity. All of which says something about the sterility of religion and the idolatry of sports in America. Iconoclastically yours.
In the fall of 1973, of the twenty-six NFL teams, twenty-one held religious services prior to their games. I was permitted to attend four of these and they were moving experiences. Some athletes have protested the intrusion by the Fellowship of Christian Athletes as being divisive, since the members tend to look down on their infidel brethren, but if I were a cornerback on Sunday morning, going up against Joe Namath that afternoon, I am quite sure I would attend prayer, if only to stabilize my nerves. Televising such prayers, however, is using sports improperly to proselytize.
Numerous NFL teams carry their own chaplain with them, and so far as I know, always a Catholic, because, as one owner told me, ‘they take sports more seriously,’ and I see nothing wrong with this. Prior to the Super Bowl in 1975 the Pittsburgh Steelers gained a lot of amiable publicity when their good-luck priest, flown over from Ireland, announced that this might be his last big game. He had brought the Steelers victory in many crucial games over the years, but now, he said, ‘I’ve prayed out my option.’
I think we have gone about as far as proper in interlocking sports and religion. (Why is it that only football teams carry chaplains? Is someone up there indifferent to basketball? Or has football become so violent that players might need last rites at any moment?) I can foresee people cynically turning away from religion if it is abused. Football is a game; it need not be so grim an occupation that one needs shriving before the whistle blows.
If sports must be kept clear of fla
mboyant patriotism and exhibitionistic religion, what legitimate relationship might they have with government in general? I propose to look briefly at seven situations which appear to require government action of some kind, and then to give an opinion as to whether intervention would be warranted: 1) the extra-legal existence of sport; 2) laws which have already been proposed; 3) the brawl over the Olympics; 4) gambling; 5) the television blackout; 6) excessive use of drugs by athletes; 7) a curious, little-known problem relating to our three military academies.
For an extended period in our national history, baseball was the major professional sport, and to many the only one, so an inspection of how it built a position of special privilege within ordinary public law will lay the ground-work for understanding how all professional sports rely on government intervention and protection.
On July 2, 1890, under pressure from President Grover Cleveland, and in response to the formation of the Standard Oil Trust back in 1879 and its monolithic impact on society, Congress passed the Sherman Antitrust Law, which declared in the clearest words possible that it outlawed henceforth:
Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or with foreign nations.
If there ever was a law directed specifically at baseball, this was it, for the big leagues were a combination; they were in a conspiracy to keep players’ salaries low; they were in restraint of trade, for the team in Cincinnati could not hire away a player on the team in New York; and since the three major leagues then operating comprised twenty-four teams located in eight different states, they were obviously engaged in interstate commerce.
But in the United States system of government, no one knows what a law means, no matter how clearly written, until the courts confirm. So as soon as the Sherman Antitrust Law was passed, the courts began to adjudicate what it meant. In 1895 the Supreme Court determined that the word every included labor unions, and in 1897 it decreed that railways were included too. Many felt that within a few years it would have to decree that the baseball owners were clearly in restraint of trade for these reasons: 1) they operated as a cartel; 2) they determined which cities could join the cartel; 3) they operated illegally in depressing player salaries; 4) they prevented a player from moving from one team to another in search of maximum salary.
But in 1922 the Supreme Court handed down a landmark decision, Federal Baseball Club of Baltimore v. National League, in which for sentimental, historical and business reasons it decided to exempt baseball from regulation under the Sherman Antitrust Law. The unanimous decision was written by that unassailable champion of logic and decency Oliver Wendell Holmes, and dealt with only one small point: Did baseball engage in interstate commerce?
The clubs comprising the League are in different cities, and, for the most part, in different states. Of course, the scheme requires constantly repeated traveling on the part of the clubs, which is provided for, controlled and disciplined by the organizations, and this, it is said, means commerce among the states. [Holmes then denied that it was interstate commerce.] The business is giving exhibitions of baseball, which are purely state affairs. It is true that competitions must be arranged between clubs from different cities and states. But the fact that, in order to give exhibitions the Leagues must induce free persons to cross state lines is not enough to change the character of the business. The transport is a mere incident, not the essence of the thing. Personal effort, not related to production, is not commerce … A firm of lawyers sending out a member to argue a case does not engage in such commerce because the lawyer goes to another state. [And then Holmes added one of the most callous judgments in constitutional law; because baseball was not engaged in interstate commerce, the owners were permitted, to continue doing just about anything they pleased. The inherent injustice of the conditions under which the players worked was no concern of the court.] The restrictions by contract, and other conduct charged against the defendants, were not an interference with commerce between the states.
It was obvious then, and it would remain obvious for half a century, that Holmes had written a bad decision, one reflecting no credit on him or the Court. His apologists say, ‘That day the great jurist was nodding,’ but the fact is that the nation’s supreme tribunal had given sanction to a kind of peonage in which young ballplayers, once signed by a team, became that team’s property for the duration of their playing lives, unless their owners decided arbitrarily to trade them away. What was worse, the player in this servitude was obligated by law to play for whatever salary the owner elected to give him. A famous cartoon of the time showed Justice Holmes raising a commodious umbrella over a group of smug and gangsterish owners, giving them legal protection to engage in ‘interstate business, slavery, blacklisting, restraint of trade, denying freedom of contracts and conspiracy.’ I have never thought the cartoon an exaggeration.
In 1953 Toolson v. New York Yankees gave a different Supreme Court an opportunity to overthrow Holmes’ error in Federal Baseball, but the new Court handed down a bewildering decision with seven major points: 1) professional baseball is a business engaged in interstate commerce; 2) it is exempt from normal federal law, but this is an anomaly; 3) the precedent case, Federal Baseball, is in error and should be corrected; 4) but it is best if this court stand by earlier decisions; 5) because baseball is unique and has unique privileges; 6) and it would be confusing if we reversed the earlier decision, even though it is wrong; 7) ‘If evils exist as a result of Federal Baseball, they must be corrected by Congress and not the courts.’
But Congress refused to act. Owners, sentimental sportswriters on the big newspapers, an adoring public, plus the pleasant baseball memories of congressmen made the passage of any law disciplining baseball impossible. The sport went its way immune from ordinary legal supervision, but all other sports were specifically subjected to the law.
That was how things stood in 1972 when Curt Flood’s case came on the docket, challenging baseball’s extra-legal status. Many Americans found it difficult to agree with Flood’s contention that he was being treated as a chattel when he was offered a salary of $100,000 by the Phillies and $110,000 by Washington, and Flood as well as other players lost much public support. But I kept thinking of the time I served on Guadalcanal under an army colonel who was a caricature of all deep-south plantation owners of the 1840s. He treated us white officers like dirt, and there wasn’t a damned thing we could do about it, but at the same time he treated his black orderly to all sorts of perquisites—use of the colonel’s jeep, extra booze, days off—if only the black would play the Stepin Fetchit role. Although he was well educated, he shuffled and mumbled and delighted visitors by calling his boss ‘Mistah Colonel, suh.’ Embittered by the treatment I was getting, I remonstrated with the orderly one day and said something like, ‘You sure worked things out well for yourself,’ and he replied, ‘Having to do it this way, it’s still slavery.’
When Justice Harry Blackmun began to read his decision in Flood v. Kuhn on June 19, 1972, the listener got ample warning in the first few moments that ballplayers were going to get it in the neck once more. Blackmun began by reciting the names of eighty-seven notable figures from baseball history, including even umpire Bill Klem, and a good percentage of these men had fought owners over unfair contracts. Then Blackmun said:
And one recalls the appropriate reference to the World Serious,’ attributed to Ring Lardner, Sr.; Ernest L. Thayer’s ‘Casey at the Bat’; the ring of ‘Tinker to Evers to Chance’; and all the other happenings, habits and superstitions about and around baseball that made it the ‘national pastime,’ or, depending upon the point of view, ‘the great American tragedy.’
That had to be one of the strangest paragraphs in legal history. What followed was equally so. He acknowledged that both Federal Baseball and Toolson presented difficulties, that baseball’s special status was an aberration and an anomaly which ought to be corrected, and that something ought to be done, but h
e reverted to Toolson and concluded that if Congress had allowed Justice Holmes’ original error to persist for fifty years, it was up to Congress to do something about it. ‘If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by Congress and not by this Court.’ Justices Burger, White, Steward and Rehnquist concurred.
In dissent, Justice Douglas confessed that back in 1953 he had supported the Toolson finding but that he had ‘lived to regret it and would now correct what I believe to be its fundamental error.’ Chief Justice Burger, in a special concurrence, said simply, ‘It is time the Congress acted to solve this problem.’
In the meantime football and basketball leagues had come into being, and each hoped that the cozy exemption from normal law which baseball enjoyed would be extended to them, but because they were newer forms of sports without the legendary aura of baseball the courts did not accord them the same privileges, and Congress refused to pass specific laws stating that they should be treated the same as baseball. This left a curious and frustrating inconsistency in the sports picture, which still exists.
Football was the first to grapple with it. As long as only one league existed, the NFL, its owners could act like baseball owners, even if they did not have the legal right to do so. They could determine which cities could have teams, and by means of a draft of players they could also decide what team a college star should be assigned to, in perpetuity, and for decades things worked well, for the owners.