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Athletes as Objects of Property: A Kantian Rethinking of Flood v. Kuhn

Published online by Cambridge University Press:  20 July 2015

Malcolm Aboud
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In the 1972 case Flood v. Kuhn, St. Louis Cardinals outfielder Kurt Flood petitioned to the United States Supreme Court arguing that professional baseball’s century-old reserve system was illegal. In the case, which was ultimately unsuccessful but led to the establishment of modern free agency, Flood argued that by granting teams the perpetual right to renew players’ contracts and the right to unilaterally trade players to other teams, the reserve system treated him as “a piece of property to be bought and sold” and reduced him to a “well-paid slave”. In this paper, I justify Flood’s claim by appeal to a Kantian division of rights. I argue for a Kantian conception of rights under which property rights are properly defined as rights in rem in external objects; on the basis that the right a team holds in a ballplayer under the reserve system is alienable and holds against all the world, I argue that it is a right in rem and accordingly constitutes a property right under Kant’s view. I then argue that the reserve system treats the player as a slave by constraining his purposiveness such as to violate a Kantian conception of the innate right of humanity. On this basis I argue that Flood was right to conclude that the reserve system treats the player as an object of property akin to a slave.

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Discussion
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Canadian Journal of Law & Jurisprudence , Volume 26 , Issue 2 , July 2013 , pp. 471 - 490
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2013

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References

Sincere thanks to David Lametti, without whom this paper would not have been possible, to Tina Piper and Amar Khoday for helpful discussions, and to the reviewers at the Canadian Journal of Law and Jurisprudence for their comments during revisions.

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2. Note: This use of the term ‘reserved’ here should not be confused with the use of the term when referencing the reserve system.

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20. Ibid at 6.

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27. Ibid at 43; see also 46 Misc 441.

28. Goldman, ibid at 58; see also Gardella, supra note 16 at 409.

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61. Ibid at 36.

62. Penner, “Bundle of Rights”, supra note 57 at 803.

63. Ripstein, supra note 36 at 115.

64. Penner, supra note 47 at 23.

65. Penner, “Bundle of Rights”, supra note 57 at 803.

66. The obvious counter-example to this point is assignment of a debt. However, a right can only be assigned under the law of obligations if it is patrimonial. The team’s right to a ballplayer is not patrimonial, and is thus not assignable on this ground. Furthermore, Penner gives reason to doubt that the right to claim a debt is properly described as a right in personam, suggesting instead that it is a power in rem. See Penner, supra note 47 (“it is probably better to say that my right is a ‘power in rem‘, a power to change the legal status of the res owned by you” at 30).

67. Penner, “Bundle of Rights”, supra note 57 at 803.

68. Kant, supra note 32 at 6:260, 6:271.

69. Penner, “Bundle of Rights”, supra note 57 at 803.

70. Eckard, supra note 3 at 116.

71. Penner, supra note 47 at 23.

72. Ibid at 23.

73. See Lajoie, supra note 12; Federal Baseball, supra note 14.

74. Kant, supra note 32 at 6:270.

75. Penner, “Bundle of Rights”, supra note 57 at 805.

76. Kant addresses the subject under the heading of the duty of rightful honor. See Kant, supra note 32 (“Rightful honor (honestas iuridica) consists in asserting one’s worth as a human being in relation to others, a duty expressed by the saying, ‘Do not make yourself a mere means for others but be at the same time an end for them.’ This duty will be explained later as the obligation from the right of humanity in our own person (Lex iusti).” at 6:237). See also Ripstein, supra note 36 (Ripstein elaborates that rightful honor entails that “[n]o rightful act on your part can bind you to a condition in which you are subject to another person’s choice,” at 136 and “that a contract cannot turn a person into a thing” at 135).

77. Ripstein, supra note 36 at 136.

78. Ibid at 137.

79. Ibid at 134.

80. Kant, supra note 32 at 6:259.

81. Goldman, supra note 10 at 83.

82. Ripstein, supra note 36 at 41.

83. Ibid at 40.

84. Ibid at 49.

85. Goldman, supra note 10 at 74.

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87. Goldman, supra note 10 at 83.

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89. Ibid at xiii.

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100. See e.g., “Mourning, Raptors part ways”, CBC Sports (23 February 2005), online: CBC Sports http://www.cbc.ca/sports/story/2005/02/11/mourning050210.html (“[Alonzo] Mourning never reported to [the Toronto Raptors] after being acquired … Dec. 17 [2004] from the [New Jersey] Nets”).

101. See e.g., Jeff Caplan, “Cuban, Kerr fined by NBA”, ESPN Dallas/Fort Worth (24 May 2010), online: ESPN http://sports.espn.go.com/dallas/nba/news/story?id=5210828 (Dallas Mavericks owner Mark Cuban was fined $100,000 by the National Basketball Association for stating “Come July 1st, yeah, of course, anybody would be interested in [impending Cleveland Cavaliers free agent] LeBron James.”).

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106. Ibid at 84.

107. Ibid at 74.

108. Carfagna, supra note 1 at 79.

109. Goldman, supra note 10 at 93.

110. Ibid at 73.

111. Ibid at 6.

112. Ibid at 6.