Salerno v. Am. League Of Prof'l Baseball Clubs, 429 F.2d 1003 (2d Cir. 1970). · Go Syfert
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Salerno v. Am. League Of Prof'l Baseball Clubs, 429 F.2d 1003 (2d Cir. 1970). Cases Citing This Book View Copy Cite
86 citation events (12 in the last 25 years) across 24 distinct courts.
Strongest positive: McCoy v. Major League Baseball (wawd, 1995-11-02) · Strongest negative: Piazza v. Major League Baseball (paed, 1993-08-04)
Treatment trajectory · 1970 → 2026 · click a year to view as-of
1970 1998 2026
Top citers, strongest first. 27 distinct citers.
discussed Cited "but see" Piazza v. Major League Baseball
E.D. Pa. · 1993 · signal: but see · confidence high
But see Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003 (2d Cir.1970) (holding that employment relations with umpires are within the exemption), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971).
discussed Cited as authority (rule) McCoy v. Major League Baseball
W.D. Wash. · 1995 · confidence medium
This Court agrees with Judge Friendly’s statement in Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir.1970), ce rt. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971): “[W]e continue to believe that the Supreme Court should retain the exclusive privilege of overruling its own decisions.” Plaintiffs vigorously argue that congressional silence is not tantamount to approval of the antitrust exemption. *458 While such silence is often not interpreted to be acquiescence, in the case of the antitrust exemption, the Supreme Court has treated it as…
discussed Cited as authority (rule) Caldwell v. American Basketball Ass'n, Inc.
S.D.N.Y. · 1993 · signal: cf. · confidence medium
Cf. Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1004 (2d Cir.1970) (Friendly, J.) (combining assertion of antitrust violation with a claim of injury from breach of contract or tort “does not automatically make the latter a claim arising under the antitrust laws”), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971); Molinas v. National Basketball Ass’n, 190 F.Supp. 241 *571 (S.D.N.Y.1961) (Kaufman, J.) (NBA reserve clause did not convert basketball player’s indefinite disciplinary suspension into a group boycott against him).
discussed Cited as authority (rule) Postema v. National League of Professional Baseball Clubs
S.D.N.Y. · 1992 · confidence medium
Judge Friendly, writing for the Second Circuit, commented, “We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes’ happiest days [and] that the rationale of Toolson is extremely dubious ...” Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir.1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971).
discussed Cited as authority (rule) Steven Levine v. Chief Justice Nathan S. Heffernan, and State Bar of Wisconsin and Stephen L. Smay
7th Cir. · 1989 · confidence medium
To conclude that Lathrop has been implicitly overruled, we must be satisfied that “this is one of those rare cases where circumstances ‘have created a near certainty that only the occasion is needed for the pronouncement [by the Supreme Court] of the doom’ of an obsolete doctrine.” Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731, 734 (7th Cir.1986) (quoting Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2nd Cir.1970) cert. denied, Salerno v. Kuhn, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971)).
cited Cited as authority (rule) Martha Olson v. Paine, Webber, Jackson & Curtis, Inc.
7th Cir. · 1986 · confidence medium
Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir.1970) (Friendly, J.); see also Buzynski v. Oliver, 538 F.2d 6, 7 (1st Cir.1976).
discussed Cited as authority (rule) Pepsico, Inc. v. Continental Casualty Co.
S.D.N.Y. · 1986 · confidence medium
As the late Judge Friendly explained, “[cjombining an assertion of general antitrust violation with a claim of injury from breach of contract or tort does not automatically make the latter a claim arising under the antitrust laws.” Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1004 (2d Cir. 1970); see also U.N.R. v. Continental Insurance Co., 607 F.Supp. 855, 861 (N.D.Ill. 1984).
discussed Cited as authority (rule) Margaret S. v. Edwards
5th Cir. · 1986 · confidence medium
Cf. United States v. Dennis, 183 F.2d 201, 207-12 (2d Cir.1950)(Hand, C.J.), aff’d, 341 U.S. 494 , 71 S.Ct. 857 , 95 L.Ed. 1137 (1951); United States v. Roth, 237 F.2d 796, 801 (2d Cir.1956)(Frank, J.); Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir.1970) (Friendly, J.); Dronenburg v. Zech, 746 F.2d 1579, 1583-84 (D.C.Cir.1984) (on petition for rehearing en banc) (statement of Bork, J., joined by Scalia, J.).
discussed Cited as authority (rule) ca5 1986
5th Cir. · 1986 · confidence medium
Cf. United States v. Dennis, 183 F.2d 201, 207-12 (2d Cir.1950)(Hand, C.J.), aff'd, 341 U.S. 494 , 71 S.Ct. 857 , 95 L.Ed. 1137 (1951); United States v. Roth, 237 F.2d 796, 801 (2d Cir.1956)(Frank, J.); Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir.1970) (Friendly, J.); Dronenburg v. Zech, 746 F.2d 1579, 1583-84 (D.C.Cir.1984) (on petition for rehearing en banc ) (statement of Bork, J., joined by Scalia, J.).
discussed Cited as authority (rule) Chambless v. Masters, Mates & Pilots Pension Plan
S.D.N.Y. · 1983 · confidence medium
In another context, Judge Friendly has written: “Combining an assertion of general antitrust violation with a claim of injury from breach of contract or tort does not automatically make the latter a claim arising under the antitrust laws.” Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1004 (2d Cir.1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971).
discussed Cited as authority (rule) Associated Container Transportation (Australia) Ltd. v. United States
2d Cir. · 1983 · confidence medium
In addition, since the Hunts could not prevail without establishing “a clear causal connection between the violation alleged and the injuries allegedly suffered,” Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1004 (2d Cir.1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971) (quoting Molinas v. National Basketball Association, 190 F.Supp. 241, 243 (S.D.N.Y.1961)), they could not succeed without proving that the defendants’ conspiracy caused the Libyan government to confiscate their property.
discussed Cited as authority (rule) ca2 1983
2d Cir. · 1983 · confidence medium
In addition, since the Hunts could not prevail without establishing "a clear causal connection between the violation alleged and the injuries allegedly suffered," Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1004 (2d Cir.1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971) (quoting Molinas v. National Basketball Association, 190 F.Supp. 241, 243 (S.D.N.Y.1961)), they could not succeed without proving that the defendants' conspiracy caused the Libyan government to confiscate their property.
cited Cited as authority (rule) Laurie Visual Etudes, Inc. v. Chesebrough-Pond's, Inc.
S.D.N.Y. · 1979 · confidence medium
Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1004 (2d Cir. 1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971).
discussed Cited as authority (rule) Jacobson & Co., Inc. v. Armstrong Cork Co.
S.D.N.Y. · 1977 · confidence medium
See 15 U.S.C. § 15 ; Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 660 , 81 S.Ct. 365 , 5 L.Ed.2d 358 (1961); Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1004 (2d Cir. 1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed. 452 (1971). 17 . 15 U.S.C. § 1 .
discussed Cited as authority (rule) Nelson Bunker Hunt v. Mobil Oil Corporation (2×)
2d Cir. · 1977 · confidence medium
Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 660 , 81 S.Ct. 365 , 5 L.Ed.2d 358 (1961); Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1004 (2d Cir. 1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971). 21 Appellants do not deny, as they cannot, this proposition of law.
discussed Cited as authority (rule) United States v. Lawrence Daniel Caldwell, A/K/A Thomas E. Morgan, (Two Cases). United States of America v. Eros A. Timm, (Two Cases) (2×)
D.C. Cir. · 1976 · confidence medium
Booster Lodge No. 405 v. NLRB, 148 U.S.App.D.C. 119 , 126 n. 7, 459 F.2d 1143 , 1150 n. 7, aff’d, 412 U.S. 84 , 93 S.Ct. 1961 , 36 L.Ed.2d 764 (1972); Breakfield v. District of Columbia, 143 U.S.App.D.C. 203 , 205-206, 442 F.2d 1227, 1229-1230 (1970), cert. denied, 401 U.S. 909 , 91 S.Ct. 871 , 27 L.Ed.2d 807 (1971); Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970); Sears v. Hassett, 111 F.2d 961, 964-965 (1st Cir. 1940); Northern Virginia Regional Park Authority v. United States Civil Service Comm’n, 437 F.2d 1346 , 1350-1351 (4th Cir.), cert. …
discussed Cited as authority (rule) United States v. Steve Karathanos and John Karathanos (2×)
2d Cir. · 1976 · confidence medium
In the face of such an unvarying application of the rule by the Supreme Court, even if we were convinced that the rule should be modified as suggested by the government, it would be inappropriate for this court to do so since, as we said in Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971), with rare exceptions not here applicable, “we continue to believe that the Supreme Court should retain the exclusive privilege of overruling its own decisions it Moreover, we are unpersuaded by …
discussed Cited as authority (rule) Federal Commerce & Navigation Company, Ltd. v. The M/v Marathonian, Her Engines, Etc. And Europa Shipping Corporation
2d Cir. · 1976 · confidence medium
In any case, “the Supreme Court should retain the exclusive privilege of overruling its own decisions, save perhaps when opinions already delivered have created a near certainty that only the occasion is needed for pronouncement of the doom.” Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970). 2 The judgment is affirmed. 1 .
discussed Cited as authority (rule) CDR Enterprises, Ltd. v. BD. OF ED. OF CITY OF NY
E.D.N.Y · 1976 · confidence medium
As was stated in Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971): "[T]he Supreme Court should retain the exclusive privilege of overruling its own decisions, save perhaps when opinions already delivered have created a near certainty that only the occasion is needed for pronouncement of the doom." See also: United States v. Karathanos, 531 F.2d 26, 31 (2d Cir. 1976).
discussed Cited as authority (rule) C.D.R. Enterprises, Ltd. v. Board of Education
E.D.N.Y · 1976 · confidence medium
As was stated in Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971): “[T]he Supreme Court should retain the exclusive privilege of overruling its own decisions, save perhaps when opinions already delivered have created a near certainty that only the occasion is needed for pronouncement of the doom.” See also: United States v. Karathanos, 531 F.2d 26, 31 (2d Cir. 1976).
discussed Cited as authority (rule) Federal Commerce & Navigation Co. v. the M/V Marathonian
S.D.N.Y. · 1975 · confidence medium
A nisi prius judge should not overturn the non-constitutional precedents established by the Supreme Court because as the Second Circuit has aptly put it, “we *916 continue to believe that the Supreme Court should retain the exclusive privilege of overruling its own decisions, save perhaps when opinions already delivered have created a near certainty that only the occasion is needed for pronouncement of the doom.” Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2 Cir. 1970) cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971).
discussed Cited as authority (rule) Vandervelde v. Put and Call Brokers and Dealers Ass'n
S.D.N.Y. · 1972 · confidence medium
Plaintiffs may recover damages only for violations of the antitrust laws by which they were injured, Molinas v. National Basketball Association, 190 F.Supp. 241, 243 (S.D.N.Y.1961), cf. Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003,1004 (2d Cir. 1970), *133 cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971).
examined Cited as authority (rule) Curtis C. Flood v. Bowie K. Kuhn (5×)
2d Cir. · 1971 · confidence medium
While we should not fall out of our chairs with surprise at the news that Federal Baseball and Toolson had been overruled, we are not at all certain the Court is ready to give them a happy despatch. 429 F.2d at 1005. 5 We adhere to the sentiments we expressed in Salerno and are compelled to affirm the dismissal of plaintiff's first count. 3 II. 6 We treat together plaintiff's second and third counts, alleging violations of state antitrust laws and violations of the common law. 4 At the threshold we find nothing in Federal Baseball or in Toolson which would indicate, as defendants urge, that th…
cited Cited "see" United States v. Twentieth Century Fox Film Corporation and Leila J. Goldstein
2d Cir. · 1989 · signal: see · confidence high
See Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir.1970), ce rt. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971).
discussed Cited "see" Flood v. Kuhn (2×)
SCOTUS · 1972 · signal: see · confidence high
See Salerno v. American League, 429 F. 2d 1003 (CA2 1970), cert, denied, sub nom.
discussed Cited "see, e.g." James L. Dronenburg v. Vice Admiral Lando Zech, Chief of Naval Personnel (2×)
D.C. Cir. · 1984 · signal: see, e.g. · confidence medium
See, e.g., Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir.1970) (Friendly, J.) (criticizing Supreme Court cases holding professional baseball exempt from federal antitrust laws); United States v. Dennis, 183 F.2d 201, 207-212 (2d Cir.1950) (L.
discussed Cited "see, e.g." Hunt v. Mobil Oil Corp.
S.D.N.Y. · 1978 · signal: see, e.g. · confidence medium
See, e. g., Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1004 (2d Cir. 1970), cert. denied, 400 U.S. 1001 , 91 S.Ct. 462 , 27 L.Ed.2d 452 (1971); Overseas Motors, Inc. v. Import Motors Ltd., 375 F.Supp. 499, 544 (E.D.Mich.1974), aff 'd, 519 F.2d 119 (6th Cir.), cert. denied, 423 U.S. 987 , 96 S.Ct. 395 , 46 L.Ed.2d 304 (1975) (“The antitrust laws are simply not a high-powered version of the laws relating to breach of contract, to be used whenever one is possessed of a particularly passionate grievance growing out of a business relationship”); cf. Hunt v. Crumbo…
Alexander J. Salerno and William Valentine
v.
American League of Professional Basebell Clubs, an Unincorporated Association, Joseph E. Cronin, Individually and as President of the American League Ofprofessional Baseball Clubs, and Paul Porter, Bowie Kuhn, Individually and Asthe Commissioner of Baseball
34653_1.
Court of Appeals for the Second Circuit.
Jul 13, 1970.
429 F.2d 1003
Cited by 11 opinions  |  Published

429 F.2d 1003

74 L.R.R.M. (BNA) 2929, 63 Lab.Cas. P 11,030,
1970 Trade Cases P 73,276

Alexander J. SALERNO and William Valentine, Plaintiffs-Appellants,
v.
AMERICAN LEAGUE OF PROFESSIONAL BASEBELL CLUBS, an
unincorporated association, Joseph E. Cronin, individually
and as President of the American League ofProfessional
Baseball Clubs, and Paul Porter, Defendants, Bowie Kuhn,
individually and asthe Commissioner of Baseball, Defendant-Appellee.

No. 818, Docket 34653.

United States Court of Appeals, Second Circuit.

Argued May 26, 1970.
Decided July 13, 1970.

Joseph Kelner, New York City, for plaintiffs-appellants.

George S. Leisure, Jr., New York City (Donovan, Leisure, Newton & Irvine and Paul E. Goodspeed and Paul A. Crotty, New York City, of counsel), for appellee, Bowie Kuhn.

Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.

FRIENDLY, Circuit Judge:

[*~1003]1

Plaintiffs, former umpires in the American League of Professional Baseball Clubs, were discharged by the president of the League. Although he announced that this was for incompetence, plaintiffs claim 'the true and only reason' was their endeavor to organize the American League umpires for collective bargaining. Following an unfair labor practice charge on their part, the National Labor Relations Board issued a complaint under 8(a)(1) and (3) of the Act, Case No. 1-CA-6581, on March 26, 1970, and this has been referred to a Trial Examiner for hearing. See 180 N.L.R.B. No. 30 (Dec. 15, 1969), 38 L.W. 2351.

2

Before that the plaintiffs had filed a complaint in the District Court for the Southern District of New York. They named as defendants the American League of Professional Baseball Clubs; Joseph E. Cronin, its president; Bowie Kuhn, the Commissioner of Baseball; and Paul Porter, a well-known Washington attorney. Only Kuhn was served. The complaint contained two counts. The first alleged a claim under the Sherman and Clayton Acts, 15 U.S.C. 1, 2 & 15; the second asserted a claim for defamation. When Kuhn moved to dismiss for want of federal jurisdiction, plaintiffs maintained there was both federal question and diversity jurisdiction. finding neither, the district court granted the motion. Since the diversity claim has now been abandoned, all that is left is the claim under the antitrust laws.

[*~1004]3

Even if we were sure that professional baseball will be held subject to the antitrust laws, we would entertain serious doubt whether the complaint here stated a claim under them. Combining an assertion of general antitrust violation with a claim of injury from breach of contract or tort does not automatically make the latter a claim arising under the antitrust laws. As Judge Kaufman observed in a rather similar context, Molinas v. National Basketball Ass'n, 190 F.Supp. 241, 243 (S.D.N.Y.1961), a plaintiff in a civil antitrust action 'must establish a clear causal connection between the violation alleged and the injuries allegedly suffered.' See also Tepler v. Frick, 204 F.2d 506 (2 Cir. 1953). Wrongful discharge of an employee does not become an antitrust violation simply because the employer is a monopolist; the private right of action is conferred only for an injury 'by reason of anything forbidden in the antitrust laws,' 15 U.S.C. 15. Although the complaint has elaborate allegations of conspiracy in restraint of trade, there is nothing to indicate restrictive trade practices directed at umpires. In the nature of things these must be employed-- and discharged-- by a league rather than by a single club. The only pertinent allegations going beyond discriminatory discharge by the President of the American League are that Kuhn is employed as Commissioner by both the American and the National Leagues, that plaintiffs' discharge was with Kuhn's 'knowledge, permission and consent,' and that defendants 'did, in fact, restrain and monopolize * * * trade and commerce in violation of Sections 1 and 2 of the Sherman Act by means of a group boycott against plaintiffs.' Even the requisite liberal interpretation of these allegations does not overcome the great difficulty in finding that a claim was stated under such cases as Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), and Fashion Originators Guild of America v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941). Moreover, plaintiffs' real grievance is their alleged discriminatory discharge in violation of the National Labor Relations Act, and this is being considered by the agency appointed for the purpose by Congress. Even assuming this claim somehow also encompasses a violation of the antitrust laws, which is highly doubtful, we would have the further question whether a federal court could consider it once the NLRB has begun proceedings. See Local Union No. 189, Amalgamated Meat Cutters, and Butcher Workmen of No. America, AFL-CIO v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965); cf. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).

4

Apart from these exceedingly serious obstacles, plaintiffs recognize that they can prevail only if we should be willing to predict the likely overruling of the holdings in Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898 (1922), and Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953), that professional baseball is not subject to the antitrust laws. Cf. Green v. Board of Elections of City of New York,380 F.2d 445, 448 (2 Cir. 1967), and cases there cited. They say that changes in the economics of the sport even since Toolson, especially the increasing importance of revenues from interstate television broadcasts, make baseball's immunity from the antitrust laws more anomalous than ever. But the ground upon which Toolson rested was that Congress had no intention to bring baseball within the antitrust laws, not that baseball's activities did not sufficiently affect interstate commerce. Cf. Gardella v. Chandler, 172 F.2d 402, 407-408 (2 Cir. 1949). We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes' happiest days, that the rationale of Toolson is extremely dubious and that, to use the Supreme Court's own adjuctives, the distinction between baseball and other professional sports is 'unrealistic,' 'inconsistent' and 'illogical.' Radovich v. National Football League, 352 U.S. 445, 452, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957). We add that Boys Mkts., Inc. v. Retail Clerk's Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199, decided June 1, 1970, overruling Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962), despite Congress' failure to act on invitations to do so, may presage a change from the attitude with respect to such inaction that was expressed in Toolson, 346 U.S. at 357, 74 S.Ct. 78, which Mr. Justice Black in dissent invoked to no avail, 398 U.S. at 255, 90 S.Ct. at 1595. However, putting aside instances where factual premises have all but vanished and a different principle might thus obtain, we continue to believe that the Supreme Court should retain the exclusive privilege of overruling its own decisions, save perhaps when opinions already delivered have created a near certainty that only the occasion is needed for pronouncement of the doom. While we should not fall out of our chairs with surprise at the news that Federal Baseball and Toolson had been overruled, we are not at all certain the Court is ready to give them a happy despatch.

[*~1005]5

Affirmed.