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June 24, 1946


The opinion of the court was delivered by: BLACK

In the matter of the petition of Alfred J. Niemiec against the Seattle Rainier Baseball Club, Inc., as respondent, I asked counsel to come in this morning so that I might advise them of my conclusion with respect to the result. I have read the cases bearing upon this matter. I have studied the exhibits and have considered the evidence, being refreshed by rather copious notes which I took Saturday.

I am satisfied as to what the decision should be in the light of the law as it was written and as interpreted by judicial decision binding upon me.

 Many times I envy the baseball umpire who merely has to say 'strike one' or 'ball two' or 'you are out,' and also envy the jury which has the privilege of saying so much or so little, guilty or not guilty; but it is expected that I not only give my result but also the reasons.

 This morning I am going to take some of the prerogative of the baseball umpire. I am going to announce the result, and will defer until next Monday afternoon at 4:30 p.m. the statement of at least some of the reasons which convince me that the result I announce is the correct one.

 Under the evidence in this case, in the light of the law as I understand it, Mr. Niemiec's unconditional release by the baseball club on or about April 21st of this year was not a discharge for cause as recognized by the statute; therefore, the result is that he is entitled to compensation since his discharge, less credit for what he has received in other employment, and he is further entitled to have the contract reinstated. The respondent, of course, need not play him, but it must pay the petitioner. Recognizing that the respondent felt that its action was one that it had a legal right to take, I will next Monday afternoon at 4:30 give an analysis of the situation and the law as I see it. Thank you, Gentlemen.

 It is now 4:30 o'clock of this 24th day of June, 1946. At this time I obligated myself to give some of the reasons as they appeared to me for the decision I announced last Friday morning after a trial the preceding Saturday.

 In this case the petitioner, Alfred J. Niemiec, seeks decree to the effect that he is entitled to be reinstated to his former position of baseball player with respondent corporation at a salary of $ 720 per month as of the 21st day of April, 1946, and that the respondent be required to reinstate the petitioner and to pay the petitioner damages in the sum of $ 720 per month from April 21, 1946, to the date of the decree of this Court and for such other and further relief as may be proper in the premises.

 The petition in brief alleges that it is brought under the provisions of Section 8 of the Selective Training and Service Act of 1940, as amended, same being subsections (b) and (c) of Section 308 of Title 50 U.S.C.A. Appendix. He alleges further that he was employed by respondent corporation in February, 1940, as a baseball player and that he held such position until he entered the services of the armed forces of the United States.

 He further alleges that about January 5, 1946, he completed his service in the United Stated Navy and received a certificate of satisfactory completion of training and service upon his separation from such. He further alleges that by February 11, 1946, he had signed a contract with respondent corporation to play baseball for such corporation at the rate of $ 720 per month for the baseball season 1946, but that the respondent terminated his employment on April 21, 1946, and has refused to reinstate him.

 By way of affirmative defense the respondent alleges that it is a quasi public institution not operated primarily for profit but to maintain baseball as a competitive sport and encourage youth to competitive athletic endeavor and to afford public entertainment. In addition to alleging the composition of organized baseball respondent alleges that baseball is a young man's game and that advancing years slow up players in their proficiency and render them progressively incapable of continued play in leagues of higher classification. It is alleged particularly that the petitioner was born May 18, 1911, and that during the seasons of 1940, 1941 and 1942 he was gradually slowing in his agility, professional ability and stamina. The answer further affirmatively alleges that during the playing seasons of 1943 to 1945 inclusive the petitioner was listed on respondent's roster as in the national defense service; that pursuant to his contract petitioner reported at training camp in 1946 on March 29 and remained until given his unconditional release April 21, and that during such time the petitioner demonstrated his inability to comply with and meet the accepted standards of work performance, professional skill and proficiency and stamina as required. The answer further alleges that the club carries a very substantial number of service men.

 The reply in substance denies most of the answer alleged affirmatively, particularly with reference to petitioner's inability.

 It may be said that the petitioner's contention is that under the letter and spirit of the Selective Service Act, 50 U.S.C.A.Appendix, 301 et. seq., he was entitled to be reinstated to his position and hold it for one year. The respondent's contention on the contrary is that baseball is in essence competition between clubs and between players and that the courts have no authority to substitute their judgment for the judgment of the employer as to the ability of the baseball player or the desirability of his retention.

 In such connection the argument of respondent is pithily condensed in the statement that to allow the Court to decide the issued 'must of necessity substitute the judicial robe for the manager's uniform and the Judge's bench for the coach's box.'

 I recognize the force of such position. It cannot be idly discharged. Baseball is an American institution. Professional baseball is a great American institution. Compared with many professional sports and entertainments it holds a very high regard of the people of the nation. I cannot escape the view, however, that the argument of the respondent analyzed completely means just this, that if the baseball player be older when he comes back from service than when he entered it, his baseball club employer is given the right in its discretion to repeal the Act of Congress. If the fact that the petitioner grew older from the time he left until he came back is a defense, then, of course, he had no right to be reinstated at all. That argument of age consistently applied would give the employers of most other men returning from service the option to disregard the statute, because in many activities of employment those who pay for what is done contend that time takes its toll.

 A very serious objection on the part of respondent is that the petitioner entered into a contract and that such contract specifically provided, 'This contract may be terminated at any time by the Club or by any assignee by giving official release notice to the player.' The argument based on that is that Mr. Niemiec had the right to waive the benefits of the Selective Service statute and that when he signed this contract he did waive them.

 I recognize that my oral decision last Friday morning seems to be inconsistent with the first purpose because I stated that as I see it the respondent need not play Mr. Niemiec but had to pay him. In this particular instance that inconsistency is not actual because counsel for the petitioner in effect agreed to release the respondent from the obligation to have him in the active line-up providing he should receive the salary. At least, I am satisfied that counsel for the petitioner will agree that in spirit such was their presentation.

 But baseball is not a business in the sense that the manufacture of assembly goods is one. Mr. Niemiec before he went into service had no right to insist that he should play in any particular game or in any particular series. The employer before October, 1942, had the right to leave him on the bench or play him as it pleased. Nevertheless, it had to give him his compensation as long as he was on the roster. For me to say that Mr. Niemiec had to take his place in the line-up during each game or during a certain percentage of the games would be an attempt on my part to substitute the judicial robe for the uniform of a playing manager.

 At this point I may say, however, that the employer had the obligation to give the baseball player returning from service who desires it the training and practice which the position calls for, and further, it would seem to me that no employer would even then be justified in terminating a player for inability unless it allowed him to participate actually in a reasonable number of games.

 It is, of course, contended that the respondent did give the training and did use petitioner in the games during a reasonable portion of the playing season until his unconditional release. It was agreed by both sides in effect that whether or not there be cause for the discharge of a veteran is a question of fact. Therefore, I was confronted with the necessity of deciding it from the evidence presented to me.

 The evidence fetched into court was very sketchy. From the evidence this much is practically undisputed, that up until the time Mr. Niemiec left the Rainier Baseball Club for military service that he was a very faithful and courageous player rendering good service. I recognize that there was some contention that he was over twenty-four years of age and therefore had passed the peak of athletic ability, but the undisputed evidence presented to me was that he was chosen as the outstanding second baseman of the Pacific Coast League in 1941. Now, either all of the other second basemen in the League were over the thirty year age, which was his, or that age criterion is of no great assistance. As far as the evidence is concerned, Mr. Niemiec played in five games in April, 1946, for the respondent. Three of those games were won by Seattle. In those five games he made but one error. There is no evidence at all that his batting during that period for Seattle was not at least the equivalent of the batting percentage of any other players contending for that position who played during any of the games in the season up to April 21. As a matter of fact, there was no evidence that any successor of his made less errors or more hits. The only evidence as to the second baseman proficiency ...

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