“I am pleased God made my skin black, but I wish He had made it thicker.” –Curt Flood The request seemed simple enough. He wanted to work where he wanted and for whom he wanted and be paid a wage he had earned. By both his peers and acclimation in the media he was thought to be among the best at what he did. If only it really were that simple. But Curt Flood did not have an ordinary job in an ordinary time. He was a black baseball player in the late 1960’s. The rules in all of society were being challenged. On October 8, 1969, Flood was traded by the St. Louis Cardinals, his employer of 12 years, to the Philadelphia Phillies. 1 For as long as baseball had been America’s past time players were traded from one team to another, but Flood felt that he deserved better than being treated “like a 1 Lomax, Michael E. (2004). Curt Flood Stood Up for Us: The Quest to Break Down Racial Barriers and Structural Inequality in Major League Baseball. Culture, Sport and Society. 6 (2-3) 44-70.
Transcript
“I am pleased God made my skin black, but I wish He had made it thicker.”
–Curt Flood
The request seemed simple enough. He wanted to work where
he wanted and for whom he wanted and be paid a wage he had
earned. By both his peers and acclimation in the media he was
thought to be among the best at what he did. If only it really were that
simple.
But Curt Flood did not have an ordinary job in an ordinary time.
He was a black baseball player in the late 1960’s. The rules in all of
society were being challenged. On October 8, 1969, Flood was traded
by the St. Louis Cardinals, his employer of 12 years, to the
Philadelphia Phillies.1 For as long as baseball had been America’s past
time players were traded from one team to another, but Flood felt that
he deserved better than being treated “like a piece of property.”2
Specifically, he felt it was time to challenge baseball’s hallowed
Reserve Clause.3
The Reserve Clause was part of the standard player’s contract
that baseball owners had with all players. The standard player’s
contract dates back, in its original form, to the late 1870s. It was
1 Lomax, Michael E. (2004). Curt Flood Stood Up for Us: The Quest to Break Down Racial Barriers and Structural Inequality in Major League Baseball. Culture, Sport and Society. 6 (2-3) 44-70.
2 Snyder, Brad. (2006). A Well-Paid Slave: Curt Flood’s Fight for Free Agency in Professional Sports. New York: Viking Penguin.
3 Flood, Curt & Carter, Richard. (1971). The Way It Is. New York: Trident Press.
around this time that baseball owners realized the value of players to
their respective franchises. It was in their best interest to keep their
best players perpetually employed if only for the sake of keeping the
teams’ value as a business enterprise.4
During the later years of the nineteenth century several
baseball leagues were in existence with varying degrees of
profitability. They were effectively in competition with each other for
both fans and for players. The only league still in existence from this
time period is the National League, which was formed in 1876 and
continues to the present day.5
In 1890, the United States Congress passed the Sherman
Antitrust Act.6 The Sherman Act, as it became known, was meant to
promote competition and prevent monopolies among companies
within an industry—specifically the oil and railroad industries that
were both dominated by a few companies.7 Professional baseball was
thought to be neither large enough nor profitable enough to be among
the industries that the Sherman Act might affect. That would change
shortly after the start of the 20th century.
Regulators began enforcing the Sherman Act, and its power was
confirmed in 1910 when the Supreme Court ordered the powerful 4 Balfour, Alan & Porter, Philip K. 1991. The Reserve Clause in Professional Sports: Legality and Effect on Competitive Balance. Labor Law Journal. January 1991. 8-18. 5 Balfour & Porter 8.
Standard Oil Company to be dissolved because it was essentially
monopolizing the oil industry.8
From a player’s a point of view, the Reserve Clause essentially
meant that the player was beholden forever to the team that initially
signed him to a contract. The player could only change teams if he
was traded, sold or released from his contract by the team.9
If the term “sold” sounds harsh with respect to the services of a
human being consider that perhaps the Boston Red Sox sold perhaps
the greatest player in history—Babe Ruth—to the New York Yankees
in 1918 for $100,000.10
Ruth, like every other player, had no freedom of movement. But
the Reserve Clause affected every player, not just the superstars. The
only way a player’s value, meaning his salary, increased was through
excellence on the playing field. So, what if a very good player but had
the misfortune to play behind an even better player? He might never
have a chance to take the field and demonstrate his talents.
The classic example of a player taking advantage of his one, and
possibly only chance, is, Lou Gehrig. The now-legendary first baseman
was on the New York Yankees for two full seasons before an
opportunity to play on a regular basis arrived. The starting first
8 Ibid.
9 Martin, Philip L. 1972. The Labor Controversy in Professional Baseball: The Flood Case. Labor Law Journal. September 1972. 567-572.
10baseball-reference.com.
3
baseman, Wally Pipp, was in a batting slump and manager Miller
Huggins decided to give Gehrig a chance. As most baseball fans know,
once in the lineup, Gehrig stayed there for 14 straight seasons
without missing a game. The year after being replaced by Gehrig,
Pipp was traded to the Cincinnati Reds. In short, the careers of
players were left up to the fates, but more often the players were at
the whim of the managers or owners.1112
Still, even in the early part of the twentieth century not too
much of the general public was sympathetic with baseball players,
who, after all, were paid to play a game.13 They could work 14 to 16
hours a day in a factory, mill or mine. The players of the time knew
this and they also knew that rejecting a contract might not guarantee
a counter offer by the team owner, which could mean an end to a
career on the baseball diamond and the beginning of one in the world
of hard, manual labor.
As a player, you had no say in where you worked. You could be
sent to another team at a moment’s notice. There were no long-term
contracts, as they were renewed (or not) on a yearly basis. When it
came time to negotiate your contract for the coming season you were
not permitted to have any sort of representation (i.e. an agent) when
you met with the owner. If you did not like what the owner offered,
11 Balfour & Porter 10-12.
12 baseball-reference.com.
13 Balfour & Porter 10-12.
4
you could not shop your services elsewhere. The owner’s offer was
quite literally “take it or leave it” or face the employment choices
mentioned earlier.
If you did not like the weather in the city where you played, then
that was too bad. If you did not like your boss or your co-workers or
the way the team was run, also too bad. Your only real option was to
retire from baseball completely.14
If the Reserve Clause sounds like justification for legalized
slavery, Curt Flood and his legal team felt the same way. The
Thirteenth Amendment, which outlawed slavery in 1865, stated that:
“Neither slavery nor involuntary servitude, except as punishment for a
crime whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction.”15
Putting the legitimacy of the Reserve Clause to the test first
came in 1922, when the Federal Baseball League challenged the
antitrust exemption that baseball had been granted. Part and parcel of
the exemption was the presence of the Reserve Clause.
In 1913, there were two major leagues for baseball players, the
more established National League, and the American League, which
had been formed in 1901.16 There was no real relationship between
14 Balfour & Porter 10-12 15 The U.S. Constitution and Fascinating Facts About It (7th Ed.). (2006). Naperville, IL: Oak Hill Publishing Company.
16 baseball-reference.com.
5
the leagues, as league presidents rarely consulted each other and
there was no commissioner who oversaw baseball as there is today.
The only connection between the two leagues came in the fall, when
the winners of each league played for the World Series.
The Federal League was formed as a minor league in 1913.17
However, by placing franchises in cities that already had major league
teams it became a competitor to the American and National Leagues.
In order for the league to be viable to fans, the owners of Federal
League teams attempted to sign stars from the other leagues. The
most notable player to sign with the Federal League was the Hall of
Fame pitcher Walter Johnson. Before the ink was dry on his new
contract, Johnson’s previous team, the Washington Senators, owned
by Clark Griffith, signed him to a new, more lucrative deal.18
The Federal League had very limited success in enticing players
from the other leagues to play for them. By 1915 the league folded.
Some teams were merged into existing National or American League
teams, other terms were merged into one and became minor league
teams in support of a team in the National or American League. One
team, the Baltimore Terrapins, folded completely and took significant
financial losses. The Terrapins filed suit against the National League
saying it was in violation of the Sherman Act or antitrust regulations.
17 Helyar, John. (1995). Lords of the Realm: The Real History of Baseball. New York: Ballantine Books.
18 Snyder 20.
6
A key part of the Terrapins’ argument was that the Reserve Clause
restricted player movement. Players could not be lured financially to
leave a National League or American League team and play for a rival
league, such as the Federal League.19
In the first court case the Terrapins, arguing as the Federal
League, actually won and were awarded $80,000. Under the
provisions of the Sherman Act antitrust awards were tripled making
the amount $240,000, which equates to just over $5.3 million in 2008
dollars, but it was hardly enough money to revive a team, let alone an
entire league. The established leagues, arguing as the National
League, appealed by seeking antitrust exemption and won in appeals
court.20
The case eventually made its way before the Supreme Court in
1922 as Federal Baseball Club v. National League. On May 29, the
William Taft-led court found unanimously in the National League’s
favor, with famed jurist Oliver Wendell Holmes writing the opinion
that baseball did not constitute interstate commerce and was in “the
business of giving exhibitions, which are purely state affairs” thereby
making it exempt from antitrust regulations.21 Antitrust experts
genuinely agree that the Supreme Court’s decision was the correct
19 Ibid.
20 Snyder 20.
21 Federal Baseball Club v. National League, 259 U.S. 200 (1922)
7
one given the laws at the time.22 Legal experts felt that the Reserve
Clause could only be reversed by one of two ways; either baseball
owners themselves would abolish it or Congress would pass
legislation to disallow baseball’s antitrust exemption. The former took
place before the latter, when The Curt Flood Act of 1998 was
passed.23 The next challenge to the Reserve Clause came in 1949.
Danny Gardella was an outfielder for the New York Giants who,
while being an awful fielder, hit 18 homeruns with a batting average
of .272 in 1945.24 The 1945 season was the last season that baseball
was affected by World War II. Many of baseball’s premier players,
such as Ted Williams and Joe DiMaggio, were involved in the war
effort and returned to the game in 1946. Many marginal players were
pushed out of baseball, but Gardella was not. Even though officials
with the Giants felt that most of his success was due to the lack of
quality pitching because of the war, Gardella was still offered a raise
of $500 up to $5,000 for the 1946 season. But Gardella never signed
and showed up to spring training without a contract. Before the
Giants could make a trade, Gardella signed a contract with a team in
the Mexican League for $10,000. Fourteen other players followed suit.
The baseball commissioner at the time, “Happy” Chandler, placed the
22 Martin 567.
23 Curt Flood Act of 1998, Pub.L. 112 Stat. 2824, 15 U.S.C. § 27 (1998). Although passed largely as a tribute to Flood, who had died a year earlier, the act stripped baseball of what little antitrust immunity that remained.
players on the Restricted List, which essentially banned them from
Major League Baseball forever.25 As a reference point, Pete Rose and
Shoeless Joe Jackson are currently on baseball’s Restricted List.
Gardella played in Mexico for a year and then returned to the
States in 1947. He tried to play on a semi-pro team against a team
from the Negro League. Earlier that year, Jackie Robinson had broken
baseball’s color barrier and the better players in the Negro League
sensed an opportunity on a bigger stage. Word came to Chandler that
a Negro League team was about to play against a team with a player
—Gardella—who was on the Restricted List. Even though he had no
actual jurisdiction over either team involved, Chandler’s office had an
announcement made over the public address system before the game
began that warned players that if they participated in the game they
would be added to the Restricted List. Among the players on the
Negro League roster was the legendary pitcher Satchel Paige, who
would ultimately play in the Major Leagues the following year. Paige,
in his early forties at the time, realized that his window of opportunity
was closing, and any incident that delayed his path to the major
leagues, legal or otherwise, might close it permanently. It is probably
safe to assume that Paige did not argue when the game was
canceled.26
25 Snyder 21-23.26 Snyder 26.
9
Gardella then sued major league baseball and in effect became
the first player to legally challenge the Reserve Clause. His initial
case was dismissed by a judge based on the application of the
doctrine of stare decisis in the Federal League case.27
But Gardella appealed the dismissal and his case was accepted
by the United States Court of Appeals, Second Circuit. The court
found in Gardella’s favor, 2-1, and sent the case back to trial in
District Court.28
Appeals Judge Jerome Frank wrote in his opinion that the Reserve Clause
“results in something close to peonage of the baseball player…possessing characteristics shockingly repugnant to moral principles that, at least since the War Between the States, have been basic in America, as shown by the Thirteenth Amendment to the constitution, condemning ‘involuntary servitude’.”29
Faced with the possibility that the Reserve Clause might be
found unconstitutional, the powers-that-be of baseball pressured
Gardella and his attorney. Respected Brooklyn Dodgers executive
Branch Rickey—who made Robinson the first black player in the major
leagues—spoke about the benefits of the Reserve Clause. Mickey
Owen, who had initially joined Gardella in the Mexican League only to
return when he was threatened with placement on the Restricted List,
27 Gardella v. Chandler. l72 F. 2d 402, 408. (United States Court of Appeals Second Circuit. 1949).
28 Ibid.
29 Snyder 105.
10
also spoke in favor of the Reserve Clause. So did several established
superstars of the time.30
Gardella succumbed to the pressure and, in exchange for not
bringing the case to trial, accepted a settlement of $60,000 and
removal from the Restricted List. Gardella eventually made it back to
the major leagues with the St. Louis Cardinals—for one game and one
at bat in 1950.31
From 1949 to 1953 the New York Yankees were the best team in
major league baseball and there was not really a close second. They
won five straight World Series’ championships and were extended to
the maximum seven games only once.32 While this was a glorious time
to be a Yankee fan, a talented player in the Yankees’ minor league
system might have felt differently. Making the Yankees’ roster was
only for the excellent few, and they had little room for those players
who were merely very good. One such excellent player, or so he
believed, was pitcher George Toolson. Whether it was because of his
legal maneuverings or on-field abilities (or lack thereof), Toolson
never played in a major league game.
For several years, Toolson was a member of the Yankees AAA
(the highest classification in the minor leagues and therefore one step
30 Snyder 26.
31 Snyder 27.
32 baseball-reference.com.
11
from the major leagues) affiliate, the Newark Bears. Before the 1950
season, the Newark team went out of business and Toolson was sent
to a team in Binghamton, New York that was of a lower classification.
Toolson refused to report to the Binghamton team and filed suit
against the Yankees claiming that the Reserve Clause represented a
restraint of trade.33
The district and circuit courts both invoked stare decisis in
reference to the Federal Baseball Club v. National League. But the
case, Toolson v. the New York Yankees, made its way to the Supreme
Court anyway. While the court found in favor of baseball (one of the
attorneys who argued on behalf of baseball was Bowie Kuhn) by a
vote of 7-2 its short, unsigned opinions at the conclusion of its ruling
were telling.34
The court believed strongly in stare decisis. Further still, since
baseball had operated under the presumption that it was exempt from
antitrust regulations for over 30 years, the court itself was not in
position to legislate from the bench. In short, the court believed the
body that should lift the antitrust exemption was Congress.35
33 Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953).
In 1957, a professional football player named George Radovich
ran up against the same difficulty as Gardella. Radovich had been
blackballed from the foremost professional league, the NFL, when he
signed a contract with a team from a rival league. Upon his
retirement, Radovich filed suit against the NFL. While the court
agreed in principle with Radovich’s argument that the NFL limited his
rights as an employee, they were countered by the fact that he was
still paid a competitive wage by another team in another league.
Radovich’s primary problem by 1957 was that he sought employment
as a coach in the NFL. However, because of his actions as a player, he
was unable to find work since the rival league he had signed with as a
player had gone out of business.36
When Curt Flood was traded from the St. Louis Cardinals to the
Philadelphia Phillies in 1969 he was 31 years old. He had played 12
seasons and was regarded as the premier defensive centerfielder in
the National League, having won the Gold Glove—the top defensive
honor for a player—seven times in a row.37 He had a career batting
average of .295 and made the All-Star team three times during the
1960s.38
36 Radovich v. National Football League, 352 U.S. 445 (1957).
37 baseball-reference.com.
38 Ibid.
13
Flood’s teammates and Cardinal fans were well aware of his
value as a player, but, prior to his pioneering lawsuit, many baseball
fans associated Flood with one of the most glaring mistakes in
baseball history.
The 1968 World Series pitted his Cardinals (who had won the
series in 1964 and 1967) against the Detroit Tigers. The Cardinals
jumped out to a three to one lead in the first four games, but the
Tigers won the next two games to force a decisive Game Seven.
In the seventh inning of Game Seven, with Flood’s best friend,
Bob Gibson, pitching, the game was tied 0-0. With two men on and
two out for the Tigers, Flood misplayed an apparently simple fly ball
that allowed both men to score and put the Tigers in front 2-0. The
Tigers went on to win the game 4-1 and the series four games to
three.39
Off the field, Flood was thought of as distant and occasionally
combative. With only a high school education, Flood informed himself
about issues beyond baseball and, more than most players at the time,
had an acute sense of the social and political upheaval taking place in
the world around him. He was well aware of the black power salute by
American sprinters John Carlos and Tommie Smith during the 1968
Olympics in Mexico City. He was a friend of Muhammad Ali, who gave
39 Ibid
14
up the title of world heavyweight champion rather than make himself
eligible to fight in the Vietnam War. As athletes in individual sports,
Ali and the Olympic sprinters did not have to answer to a manager or
owner and feared no reprisal, such as being released or traded, as a
result of their personal politics.
Still, Flood spoke often with Jackie Robinson, who broke
baseball’s color barrier. In honor of Robinson, Flood wore the number
21 throughout his career, which was half of the 42 that Robinson had
worn.40
When Flood was traded he was devastated but not shocked.
Robinson himself had been in a similar situation with the Brooklyn
Dodgers. After spending 10 years with the Dodgers and enduring
countless racial epithets and becoming the most popular player on the
team Robinson was traded to the New York Giants in the winter of
1956. Rather than report to the archrival Giants, Robinson retired
from baseball.41
Flood’s situation was eerily similar. Upon hearing he’d been
traded to the Phillies Flood never considered playing for them. Not
only were the Phillies the worst team in the National League,
Philadelphia had developed a less than stellar reputation in its
40 Flood 29.
41 Snyder 49.
15
treatment of black players.42 Flood simply would not go from a
winning team where he felt appreciated, to a losing team with a racist
fan base. Furthermore, he resented that he did not have a choice in
the matter. He would either retire, as Robinson had, or fight the
Reserve Clause.
Flood had been active in the Major League Baseball Players
Association since its inception in 1966.43 He had fought for improving
the pensions for current and former players. Once he was traded, he
sought the counsel of the head of the Association, Marvin Miller, and
told him of his intentions.44 Miller felt that defeating baseball’s
Reserve Clause was critical to enhancing the player union’s power
and that Flood’s situation was a perfect example of the system. Yet, he
insisted that Flood, who he regarded as a bright man, decide for
himself.45
On Christmas Eve 1969 Flood sent Commissioner Bowie Kuhn—
the same Bowie Kuhn who had helped represent baseball in the
Toolson case—a letter indicating that he planned to fight baseball’s
Reserve Clause in court.46
42 Snyder 13.
43 Flood 157.
44 Snyder 24.
45 Snyder 24.
46 Snyder 93-96.
16
On Miller’s advice, Flood met with all of the Association’s player
representatives. The purpose of the meeting was basically two-fold.47
First, Flood wanted the Association’s public support when his suit
became public knowledge. Secondly, the Association wanted to be
sure that Flood’s challenge was in their best interest. Although they
came to an understanding the meeting was contentious. One player
representative, Tom Haller48, asked Flood if his motivation was based
more on racial politics rather than the ultimate defeat of the Reserve
Clause.49 Others wanted to be certain that Flood was not simply
leveraging a lawsuit only to take a settlement, as Danny Gardella had
done.50 Miller had told Flood that it was critical that he follow the suit
all the way through and then set out assembling the best legal team
possible.51
Arthur Goldberg, who was a former Supreme Court justice and
Labor Secretary under John F. Kennedy, was Flood’s primary
representative. Goldberg was joined by Jay Topkis, considered to be
one of the country’s best writers of court briefs, and Flood’s personal
47 Snyder 73-74.
48 Maraniss, David. (2006). Roberto Clemente: The Passion and Grace of Baseball’s Last Hero. New York: Simon & Schuster.
49 Snyder 75-77.
50 Ibid.
51 Snyder 27.
17
attorney, Allan Zerman. Although an accomplished attorney, Goldberg
was also running for governor of New York when Flood’s civil trial
began in May 1970.52 The effect Goldberg’s dual commitments had on
the outcome is open to debate, but Goldberg had been expected to
easily win the Democratic primary. Instead, he found himself in an
unexpected dogfight.53
Flood was called as the first witness and performed capably
when questioned by Goldberg. However, under cross-examination
from baseball’s lead counsel Mark Hughes and Lou Carroll, Flood
seemed edgy and inarticulate. The Judge, Irving Ben Cooper, did not
help matters by pointing out to Flood that there was a big difference
between a batter’s box and a witness box.54 The defense wondered
why someone who earned $90,000 a year (Flood’s salary in 1969)
playing baseball could be dissatisfied or refer to himself as a “well-
paid slave.”55
Most of the media had been particularly ruthless in attacking
Flood for much the same reason. Only two sportswriters of note, Red
Smith and Jim Murray, supported Flood. Aside from them, he was
52 Snyder 147.
53 Ibid.
54 Ibid.
55 A $90,000 salary in 1970 would be equivalent to over $500,000 in 2007. At the start of the 2008 season the average (italics added) salary of a major league baseball player was $3.15 million. Source: Barry M. Bloom, www. mlb.com, 04/01/08.
18
regularly castigated as a greedy ballplayer in newspapers and
broadcasts throughout the country.56 No active players testified on
Flood’s behalf, but Goldberg called the diabetes-stricken Jackie
Robinson to the stand to recount his experiences with the Reserve
Clause. Robinson gave impassioned testimony about how the
combination of racism and the Reserve Clause were profoundly potent
weapons against the black athlete.57
Hall of Fame first basemen Hank Greenberg, who had been the
subject of countless anti-Semitic remarks by fans and players during
the course of his 17-year career with the Detroit Tigers, was also
called to testify. In 1947, the Tigers traded the high-priced Greenberg
to the historically thrifty Pittsburgh Pirates. Greenberg informed the
Pirates ownership he would play one season for them and then retire,
which is precisely what he did.58
Former player Jim Brosnan, who became an author after retiring
from baseball, also testified for the plaintiffs.59 In a twist, team owner
Bill Veeck, never a friend of the baseball establishment, spoke about
56 Snyder 113-114.
57 Snyder 160-165.
58 Snyder 165-168.
59 Snyder 168-172.
19
how the Reserve Clause denied him the opportunity to sign players
from other teams to help make his own team competitive.60
Testimony ended on June 11th and Cooper issued his 47-page
opinion on August 12th. Cooper found against Flood. The judge wrote
that he did not have the authority to overturn a Supreme Court
decision and Flood’s claims based on state and common law were
trumped by federal law. Further, he felt that, over the course of the
trial, he had heard no testimony that was credible enough in his mind
to overturn the Reserve Clause.61 Flood was urged by Kuhn, through
a former Negro League player named Monte Irvin, to drop his claim.
The Phillies also attempted to sign Flood to a contract, but Flood did
not budge.62
By the time the 1971 season was set to begin, Flood was in dire
financial straits. Against the advice of his lawyers, Flood agreed to let
his rights be traded to the Washington Senators.63 Worn out by the
incessant media attention and personal problems his skills had
significantly eroded. He played only 13 games for the Senators before
retiring for good. He earned at least $50,000 for his efforts.64
60 Snyder 183-188.
61 Snyder 191-192.
62 Snyder 200-201.
63 Ibid.
64 Snyder 228-233.
20
While his body had given way, Flood’s pursuit of justice had not.
He filed an appeal that eventually made its way to the Supreme Court
in 1972.
It was the first and only challenge to the Reserve Clause that
reached the Supreme Court, a fact not lost on baseball owners, and a
sign of its waning power.
Furthermore, the collective bargaining agreement signed by the
players and owners in 1970 included two major changes. If the
financial terms of the standard player’s contract could not be agreed
upon, the contract would be referred to an independent arbitrator.
The second change included what was called the 10-5 Rule. Any
player with at least 10 years of experience and at least five with his
current team could veto a trade. Obviously, had the 10-5 Rule been in
place when Flood was traded he would have invoked his right to
veto.65
Curt Flood’s day before the Supreme Court came on March 20,
1972 when Arthur Goldberg spoke on his behalf. Flood’s legal team
had put extensive planning into their presentation before the court,
and Goldberg’s experience was considered a particular advantage.
However, when Goldberg took the floor he froze. Perhaps he was
rusty from his political foray. Perhaps he was intimidated by arguing
65 Snyder 178.
21
before his peers instead of with them. Perhaps he felt unprepared. He
left the planned strategy and instead recited various facts and
statistics about Flood’s playing career.66
On, June 19, 1972, Flood vs. Kuhn was decided by a 5-3 count in
favor of the defendant, with Justice Harry Blackmun casting the
decisive vote. Justice Lewis Powell had to excuse himself from the
hearings, since he was a shareholder in the Anheuser-Busch
Corporation, which owned the St. Louis Cardinals.67
In the preliminary voting, justices William Brennan, William
Douglas and Chief Justice Warren Burger initially found for Flood.
Justices Blackmun, Thurgood Marshall, William Rehnquist, Potter
Stewart, Byron White voted in baseball’s favor. Stewart had led the
argument to affirm the findings of the appeals court. The appeals
court, like previous courts, felt it could not overturn the 1922 Federal
Baseball Team case and felt that antitrust exemptions were the work
of Congress.68
As the senior member of the majority it fell upon him to write
the opinion or to assign it to another justice. Stewart theorized that,
since the vote could wind up a deadlock, it was best to give the
66 Snyder 268-270.67
? Snyder 285.
68 Snyder 283-289.
22
opinion to a justice who was not as firm in his belief as he was. He
chose Blackmun, a devout baseball fan. It was only Blackmun’s second
full term on the Supreme Court. His opinion was essentially one that
fawned over the historical and cultural importance of baseball in
American society.69
While the major league baseball owners won the battles in
court, it was clear that the Reserve Clause, as it had been in use for
nearly 100 years, was coming to end. Maintaining antitrust exemption
outweighed their love of the Reserve Clause.
In 1974, independent arbitrator Peter Seitz found that Jim
“Catfish” Hunter’s contract was invalid making him the first free
agent in baseball history.70 A year later, Seitz found that pitchers Andy
Messersmith and Dave McNally should be released from their
contracts with the Los Angeles Dodgers and Montreal Expos,
respectively. Both agreed to play the 1975 season without a current
contract (they reverted to their 1974 deals).71 McNally was an aging
pitcher who was forced into retirement in June due to injury. But,
Messersmith went 19-14 with a 2.29 ERA and was signed to a multi-
year, multi-million dollar contract by the Atlanta Braves.72 As if to
69 Flood v. Kuhn, 407 U.S. 258 (1972)
70 Helyar 143-149.
71 Helyar 181-190.
72 Helyar 191.
23
confirm owners’ fears about long-term contracts, Messersmith was
injured in the 1976 season. He never regained his health and was out
of baseball completely by 1979.73
In the 1976 collective bargaining agreement, players were
granted free agency after six years of service with the same major
league team.74
It is hard to say that Curt Flood sacrificed his career for the
sake of others because he had already played for 12 years when he
filed suit, but he certainly sacrificed peace of mind.
Curt Flood was not the first to challenge the Reserve Clause,
but he would be the last. No player, or any other individual for that
matter, has ever won a case against a major league sport.
Curt Flood died in 1997 at the age of 59.75 Acknowledgement of
his courage came when Congress, as it had been urged to since 1953,
removed baseball of the majority of its antitrust exemptions with the
passage of the Curt Flood of Act of 1998.76
73 baseball-reference.com.
74 Snyder 319.
75 Snyder 346.
76 Curt Flood Act of 1998.
24
Bibliography
Balfour, Alan & Porter, Philip K. 1991. The Reserve Clause in Professional Sports: Legality and Effect on Competitive Balance. Labor Law Journal. January 1991. 8-18.
Baseball-Reference.com. (2008) Accessed March 31, 2008.
Bloom, Barry M. (2008). Average Salary in MLB Tops $3 Million. Accessed April 1, 2008. www.mlb.com.
Flood, Curt & Carter, Richard. (1971). The Way It Is. New York: Trident Press.
25
Gilroy, Thomas P. & Madden, Patrick J. (1977) Labor Relations in Professional Sports. Labor Law Journal. December 1977. 768-776.
Helyar, John. (1995). Lords of the Realm: The Real History of Baseball, New York: Ballantine Books.
Lomax, Michael E. (2004). Curt Flood Stood Up for Us: The Quest to Break Down Racial Barriers and Structural Inequality in Major League Baseball. Culture, Sport and Society. 6 (2-3) 44-70.
Maraniss, David. (2006). Roberto Clemente: The Passion and Grace of Baseball’s Last Hero. New York: Simon & Schuster.
Martin, Philip L. 1972. The Labor Controversy in Professional Baseball: The Flood Case. Labor Law Journal. September 1972. 567-572.
McGrath, Ben (2007, October 29). The Extortionist. The New Yorker. 56-67.
Snyder, Brad. (2006). A Well-Paid Slave: Curt Flood’s Fight for Free Agency in Professional Sports. New York: Viking Penguin.
The U.S. Constitution and Fascinating Facts About It (7th Ed.). (2006). Naperville, IL: Oak Hill Publishing Company.
Legal Cases and Legislation
Federal Baseball Club v. National League, 259 U.S. 200 (1922)
Flood v. Kuhn. 309 F. Supp. 793 (Southern District of New York. 1970.)
Flood v. Kuhn. 443 F.2d 264 (United States Court of Appeals Second Circuit, 1971)
