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Does Chief Wahoo Deserve an Antitrust Exemption?

by Professor Stefan Padfield on February 19, 2009

in Civil Rights,Federal Courts,Federal Indian Law,Government,Stefan Padfield

Were honoring Native Americans.  Really.

We're honoring Native Americans. Really.

Spring training got into full swing this week.  For most of my adult life, the return of baseball was like a ray of sunlight breaking through grey skies because I love to watch and score the game.  But since I moved to Cleveland four years ago, the return of baseball has left me tense–dealing with the conflict between my love of the game and the image of Chief Wahoo.  At times like these, I am repeatedly reminded of a poster I saw in Sports Illustrated when I was in grade school that had pictures of fictitious and patently offensive mascots for teams named the "New York Negroes" and the "Boston Jews," along with those of the Cleveland Indians and Washington Redskins.  At the bottom of the poster it read: "If any one of these is offensive to you, then they all should be."  I have yet to hear a good explanation for why that statement is not correct.

None of which is to say that I don't sympathize with fans of the Indians who get defensive on this point.  There is the simple conscious or unconscious equation that: (1) I've been wearing Chief Wahoo gear my whole life; (2) I'm not a racist; so, (3) Chief Wahoo can't be a racist image.  There is also the sense that there should be one place in the world where we should be free from the wagging finger of the "political correctness police."  For many, that "place" is sports.  We work hard, struggle to make ends meet and be good people–is it really too much to ask that we be allowed to watch our home team in peace?  I can sympathize with both these sentiments.  But my short response to them is that we are called to be better.  One of the great things about humans is that they have the capacity to reconsider deeply held beliefs.  And, when the time is right, they can stop defending the indefensible.

And speaking of being better, I think I know just where to start.  When I think of Cleveland and northeast Ohio I think of a place where people suit up and show up for work and greet you with a smile in spite of high crime, foreclosures, and winters that would make Mr. Freeze look for warmer climes.  There is a spirit here that refuses to give up even in the face of the cruelest jokes or harshest criticisms.  I am currently in my fourth year at the University of Akron School of Law, and I can tell you with complete conviction that every person on our organizational chart is committed to being of maximum service to our students, the law school, and the communities–local, national, and global–that we are connected to.  There really is a "Spirit of Ohio" and I would love to see the team that plays the most games in Cleveland each year have a name and mascot that reflect that spirit–as opposed to one that leads to children holding signs that say, "I am not a mascot."

Which leads me to the subject of this post: Does Chief Wahoo deserve an antitrust exemption?  Professor Mitchell Nathanson recently posted a paper that,

examines the relationship between Major League Baseball (MLB) and the law and discusses how it has evolved that MLB has become unofficially exempt from federal law on a wide range of issues due to its unique status within American society. Although its antitrust exemption is well-known, MLB has, in practice, not been subject to the forces of federal law in many other contexts as well, setting it apart from most other corporations and organizations – even other professional sports leagues such as the NFL, NHL and NBA. . . . .  From its inception in 1876 to the present, MLB has been, in effect, an extra-judicial entity, a society unto itself, answerable to no one in all but the most extreme circumstances.

This made me wonder whether the United States government should be bestowing such benefits on an organization that profits from the use of a racist image like Chief Wahoo.  To believe that it shouldn't does not even require you to believe that Chief Wahoo is in fact a racist image.  You would just have to accept that there is a significant amount of controversy surrounding the image and that the federal government shouldn't be "taking sides" in the controversy.  (Prof. Nathanson argues that the government's preferential treatment of major league baseball is rooted in judicial and legislative acceptance of the "baseball creed," which states that "baseball contribute[s] to individual and public welfare by 'building manliness, character, and an ethic of success.'")  You also would not have to worry about infringing on the individual liberty of MLB and the Cleveland Indians because you would not be prohibiting the use of Chief Wahoo as a mascot, you would merely be declining to bestow special federal treatment so long as they chose to keep the Chief.  This is not unlike Title IX, which does not prohibit sex discrimination in education–it simply ties the receipt of federal funding to compliance.

Joe Posnanski, sports columnist and former Clevelander, put it like this:

Wahoo is an inherently racist symbol.  Nobody could really deny this.  Nobody could look at that grinning mug and say, "No, it's really a flattering portrayal of Native Americans, who were conquered, nearly wiped off the planet by our ancestors and then forced to live on reservations."


The only reason Chief Wahoo is around is because Native Americans don't have a strong enough voice in this country to put a stop to it.  When Native Americans protested at the 1997 World Series, they were mostly laughed at.  Three were arrested.  Is this really the kind of country we want to be?  And for what?  To stand up for our inherent rights to enjoy a racist sports logo?

I love Cleveland. I love the Indians and I even love Wahoo in a weird way because it is such a part of my childhood.  But it is not just time to get rid of Wahoo, it is way, way past time.  I don't think this is the biggest problem facing the world, or even the 54,993,287th biggest problem facing the world.  I don't care about political correctness either.  No.  It's just wrong.  Very wrong.  Get rid of it.  The fewer wrong things in the world, better.

At a time when there is much wailing and gnashing of teeth surrounding the message our children are getting from baseball regarding steroids, maybe we can also reconsider the message of Chief Wahoo.  After all, newly appointed Attorney General Eric Holder recently "described the United States … as a nation of cowards on matters of race, saying most Americans avoid discussing unresolved racial issues," and "urged people of all races to use Black History Month as a chance for frank talk about racial matters."

So, consider yourself urged.

P.S.–In the interest of full disclosure: I am a Yankees fan.  I realize some of you may dismiss everything I've written to this point on that basis alone.  But I hope you won't.