THE PETE ROSE CONTROVERSY : NO SO ROSY : Courts Have Previously Upheld Power of Commissioner

The baseball commissioner is given almost unlimited power by major league teams and a series of court decisions in the last 70 years have affirmed his broad authority.

That’s why Pete Rose’s attempt to stop A. Bartlett Giamatti’s Monday hearing into gambling allegations is so unusual. Norbert A. Nadel, the Ohio judge hearing the case, admitted as much Friday when he said that granting Rose’s request for a temporary restraining order against the commissioner would be going into “previously uncharted waters.”

Nadel said he would decide today whether to let Giamatti’s hearing proceed.

The commissioner’s powers are nearly dictatorial, courts have held. He has “all the attributes of a benevolent but absolute despot” a U.S. District Court wrote in deciding a 1931 suit challenging the authority of Kenesaw Mountain Landis, the first commissioner.

Many have challenged but none have won yet. Charlie Finley and Ted Turner sued Bowie Kuhn in the 1970s and George Steinbrenner did it in the 1980s. All they wound up with was large legal bills. Steinbrenner not only had to pay his own lawyers, he was fined $250,000 by the commissioner and forced to pay $50,000 of baseball’s legal fees.

Baseball’s structure and laws are contained in two documents, the Major League Agreement and the Major League Rules. They give the commissioner the authority to investigate “any act, transaction or practice . . . not in the best interest of the national game of baseball” and to punish offenders.

On June 18, 1976, Kuhn blocked Finley’s $1.5 million sale of pitcher Vida Blue to the New York Yankees and his $2 million sale of outfielder Joe Rudi and reliever Rollie Fingers to the Boston Red Sox. Kuhn said the sales were “inconsistent with the best interest of baseball, the integrity of the game and the maintenance of public confidence in it.”

Frank J. McGarr, the U.S. District Judge in Finley v. Kuhn, backed baseball in his decision on March 17, 1977.

“What the parties clearly intended,” McGarr wrote, “was that the commissioner was to have jurisdiction to prevent any conduct destructive of the confidence in the integrity of baseball. So broad and unfettered was his discretion intended to be that they provided no right of appeal, and even took the extreme step of foreclosing their own access to the courts.”

In general, courts do not interfere with private associations, the legal definition for baseball’s structure. That’s why after nearly 12 years of litigation, the Supreme Court ruled last year that the NCAA could order Nevada-Las Vegas to suspend basketball coach Jerry Tarkenian. The High Court held that due process rights granted in judicial proceedings do not apply to adminstrative investigations.

Courts are especially careful about interfering with baseball commissioners. “In no other sport or business is there quite the same system, created for quite the same reasons and with quite the same underlying policies,” Judge Robert A. Sprecher of the Seventh Circuit Court of Appeals wrote in a 1978 affirmation of McGarr’s Finley decision. “Standards such as the best interests of baseball, the interests of morale of the players and the honor of the game . . . are not necessarily familiar to the courts and obviously require some expertise in their application. While it is true that professional baseball selected as its first commissioner a federal judge, it intended only him and not the judiciary as a whole to be its umpire and governor.”

This view was expressed by U.S. District Judge Newell Edenfield, who refused to stop Kuhn’s suspension of Turner. The commissioner found the Atlanta owner guilty of tampering with outfielder Gary Matthews, who at the time was with the San Francisco Giants. Turner was suspended for one year and sued Kuhn.

“What conduct is ‘not in the best interests of baseball’ is, of course, a question which addresses itself to the commissioner, not this court,” Edenfield wrote.

The judge, however, did stop Kuhn from stripping the Braves of their first pick in the 1977 amateur draft. He said there was nothing in the Major League Agreement specifying that punishment. Kuhn termed the decision “a 95 percent victory.”

Baseball commissioners are so powerful that, in theory, they may not be sued by baseball people. Article VII, section 2 of the Major League Agreement says the clubs waive their right to challenge the commissioner in court. In their contracts, baseball employees also waive their rights to challenge the commissioner.

The Court of Appeals upheld that clause in the Finley case with two narrow exceptions:

-- If the commissioner doesn’t follow his own rules or is arbitrary or biased.

-- If baseball “has failed to follow the basic rudiments of due process of law.”

The second exception was argued by Rose’s lawyers this past week. Nadel may grant the retraining order only if he finds that holding the hearing -- not any decison by Giamatti -- would cause immediate irreparable harm to Rose.