A (Very) Abridged Legal History of Sport
Radovich v. National Football League and the advent of free agency
This is part of a series of articles discussing the legal rulings that made the sporting landscape what it is today.
“It’s the first time that any professional sport was ever taken to court and beaten. What I did opened doors.”
Bill Radovich was an All-Pro lineman for the NFL’s Detroit Lions from 1938 to 1941, before he joined the Navy in the Second World War. Undrafted out of USC, he chose to play for the Lions as they were the only team to guarantee off-season employment for all players. He returned to Detroit after the war, putting up another All-Pro season for his chosen team. Yet before the 1946 season started, Radovich’s father fell deathly ill, and Radovich wanted to be closer to him. He asked for a raise so that he could afford to fly back to see his dying father, or to otherwise be traded to a team on the west coast. Fred Madel Jr., the owner at the time, refused Radovich’s request.
As controlling as the NFL is of its employees now, the scene during Radovich’s time was even more bleak. As the New York Times described the atmosphere, “As imperious as owners are accused of being [during the 1994 strike], in 1949 they were essentially feudal lords who often treated their teams like fiefdoms, their players like subjects.” The treatment of Radovich was no different. As he said years later,
The little creep said I’d either play in Detroit or I wouldn’t play anywhere. He also told me if I tried to play in the new league, he would put me on a blacklist for five years.
The “new league” that Radovich mentions is the All-American Football Conference (AAFC). The AAFC only operated from 1946 to 1949, but was considered a serious threat to the NFL’s primacy, eventually forcing a merger that brought the Cleveland Browns, Baltimore Colts, and San Francisco 49ers into the fold. The Los Angeles Dons, which Radovich played for, were not so lucky and had to fold. He was offered a position as a player-coach on the minor league San Francisco Seals, but the Seals were an NFL affiliate and quickly rescinded their offer.
With the help of Joseph Alioto, the future mayor of San Francisco and crusading antitrust lawyer, Radovich sued the League for $35,000 in damages under the Clayton Act, claiming that the act of blackballing AAFC players was ‘a conspiracy to monopolize commerce in professional football.’ The NFL for their part claimed that the antitrust exemption granted to baseball should apply to them equally. The district court accepted the League’s argument, as did the circuit court upon appeal.
But the federal government filed an amicus brief on behalf of Radovich, allowing the Supreme Court to hear his case. The Court reversed the previous decisions, siding with Radovich and finding the NFL to not have the same exemption as Major League Baseball. The argument was that, in decisions since baseball received its exemption, namely United States v. International Boxing, it was held that baseball and only baseball would have antitrust exemption. As Justice Tom Clark wrote in in the majority position,
The blacklisting was the result of a conspiracy among the respondents to monopolize commerce in professional football among the States. The purpose of the conspiracy was to “control, regulate and dictate the terms upon which organized professional football shall be played throughout the United States,” in violation of
the Sherman Act, and that
As long as the Congress continues to acquiesce we should adhere to — but not extend — the interpretation of the Act made in those cases. But the volume of interstate business involved in organized professional football places it within the provisions of the Act.
The decision was released in 1957, and ultimately rejected the League’s right to reserve players as they had Radovich. Yet despite this victory establishing free agency in principal, it would not manifest itself in practice for another 35 years. This delay was at first caused by a ‘gentleman’s agreement’ among owners to not poach opposing teams’ players, but eventually it was codified by the League’s autocratic ruler Pete Rozelle, in what became known as the “Rozelle Rule”. This rule allowed teams that lost players to free agency to be compensated from the team that gained the player as the commissioner saw fit:
Whenever a player, becoming a free agent in such manner thereafter signed a contract with a different club in the league, then unless mutually satisfactory arrangements have been concluded between the two League clubs, the Commissioner may name and then award to the former club one or more players from the Active, Reserve, or Selection List (including future selection choices of the acquiring club as Commissioner in his sole discretion deems fair and equitable); any such decisions by the Commissioner shall be final and conclusive.
The Rozelle Rule was challenged in court in 1976 when tight end John Mackey sued the League. The rule was struck down as it had been imposed outside of collective bargaining, yet it was a hollow win. The NFLPA’s funds were wiped out fighting the case, and they agreed to be bailed out by the League in exchange for adopting a softened version of the Rozelle rule. This version replaced the commissioner as arbiter with a formula that would decide compensation, but that did little to make free agency a reality, with only one player switching teams via this method over the ensuing decade.
A 1987 strike led to the adoption of ‘Plan B’ free agency, where teams were allowed to reserve 37 players, leading to only the most marginal players being able to freely change teams. This led to backups often being paid more than those starting in front of them. Total free agency as we know it today was achieved five years later. The NFLPA decertified in 1990, allowing individual players to bring suits against the League, as New York Jet star running back Freeman McNeil did. The 1992 decision in McNeil v. NFL deemed Plan B a violation of antitrust law, and was the ultimate blow to the NFL’s draconic system of player control. Like Radovich, McNeil never again saw the field after his legal challenge to the NFL, but his sacrifice helped secure important labor rights for the generations of men that came after him.