by Brad Snyder
Flood insisted that his decision had nothing to do with Philadelphia. “It may be time for me to make my break from baseball,” he told Quinn. Quinn said he would not be in a St. Louis hotel room if Flood were 37 or 38 years old. Philadelphia’s scouts did not believe that Flood’s skills had faded. Quinn said Flood had promised to “keep an open mind.” Flood, however, said he had told Quinn: “I don’t think there was anything he could say to make me change my mind.” They never discussed salary but agreed to stay in contact.
Most people believed that after the November 7 meeting Flood was coming to Philadelphia. “Curt Nearly a Phil,” the next day’s Philadelphia Daily News headline declared. Quinn said that if he had $1,000 at stake, he would place it on Flood wearing a Phillies uniform in 1970. Two of Flood’s former teammates, McCarver, who had signed with the Phillies, and Bill White, who had retired and worked as a Philadelphia sportscaster, believed that Flood would sign. So did Dick Allen, who said “the money” was the overriding factor.
Flood liked Quinn based on their initial meeting but publicly insisted that his plan to retire had not changed. He told reporters to talk to him again in March. His thinking, however, had changed—he was contemplating the idea of suing Major League Baseball over the reserve clause.
Soon after he had returned from Copenhagen and before meeting with Quinn, Flood visited Allan H. Zerman. A 32-year-old St. Louis attorney, Zerman had helped Flood acquire his first photography studio and incorporate the business as Curt Flood & Associates, Inc. Zerman also had represented Carl after the jewelry store robbery, negotiating a plea bargain with the state of Missouri and appearing in federal court about the parole violation. Zerman liked Flood’s sense of humor and, as his lawyer, had earned Flood’s confidence and trust. Flood had been impressed that Zerman was the only person to turn down Flood’s free tickets to the 1964 World Series.
Zerman had never seen Flood as upset as he was that afternoon in Zerman’s law office. Zerman listened as Flood vented about how the trade had turned his life in St. Louis upside down. It was clear to Zerman that Flood was not going to Philadelphia. Retirement seemed a certainty.
“There is one other alternative,” Zerman said.
Flood was startled when Zerman brought up the idea of a lawsuit. Zerman had not read the two Supreme Court cases granting Major League Baseball a legal monopoly, but he knew that they were old and most likely outdated. He correctly believed that to challenge the reserve clause, Flood would first have to challenge baseball’s exemption from the antitrust laws. Zerman’s gut told him that the reserve clause was an injustice that a more liberal, modern Supreme Court would not tolerate. The more Zerman looked into it, the more he believed that Flood might have a viable legal claim.
Two of the people Flood trusted most, Zerman and Marian Jorgensen, suggested that he sue. Flood knew his next move. He called Marvin Miller.
CHAPTER TWO
Marvin Miller was not expecting Curt Flood’s phone call. The ex- ecutive director of the Major League Baseball Players Association, Miller was aware of the trade, Flood’s announcement of his plan to retire, and even his vacation to Denmark. But Miller thought that Flood would either retire or report to the Phillies, and that would be the end of it. Instead, Flood called Miller about a lawsuit.
Miller did not know Flood well. Flood had supported the association’s directive to the players to refuse to sign contracts during a pension dispute before the 1969 season. He had occasionally stopped by the association’s New York offices when the Cardinals were playing the Mets. During Miller’s annual spring training visits with Cardinals teams of the mid- to late 1960s, Flood had not stood out among the team’s strong and intelligent personalities. Miller associated Flood with the center fielder’s misplay of Northrup’s line drive in Game 7 of the 1968 World Series.
Despite their lack of familiarity, Miller could tell from Flood’s tone of voice that he meant business. Flood said there was no way he was going to report to Philadelphia, not after 12 seasons in St. Louis and not with his business interests there. Flood explained that he and his St. Louis attorney had discussed a legal challenge to the reserve clause. In response, Miller launched into a brief discussion of the two Supreme Court decisions in Flood’s way. Miller mentioned that there was a slight chance that the Court might reverse those decisions, but he “wouldn’t bet any money on it.” Flood asked Miller if they could talk in person. Flood had business soon in New York. Miller agreed that they should meet.
Many people meeting him for the first time underestimated Marvin Julian Miller. At 5 feet 8 and 150 pounds and with a right shoulder damaged at birth, he looked slight and vulnerable. He spoke in slow, measured sentences and never raised his voice. But beneath his polite and charming demeanor lay a no-holds-barred fighter and relentless negotiator. He believed that he could accomplish anything. Despite his bum shoulder, he willed himself into becoming a fine tennis and handball player. His wife, Terry, often teased him by calling him “J.C.” or “Don Quixote.” “He likes the impossible dream,” she said. “He’s eager for the impossible fight.”
The son of a ladies’ garment salesman and a schoolteacher, Miller grew up in the Flatbush section of Brooklyn not far from Ebbets Field. He lived and died with the Brooklyn Dodgers of the 1930s. When a San Francisco Giants public relations man once sought to confirm the owners’ misguided notion that Miller did not like baseball by challenging him to name some Dodgers from that era, Miller rattled off the entire starting nine, the starting pitchers, and the backup catchers. His steel-trap mind was not limited to baseball. He finished high school at age 15 and spent the next three semesters working and taking night courses at Brooklyn College. He then began taking prelaw courses at St. John’s at age 17, entered Miami University in Ohio a year later, and after two years transferred to New York University, where he graduated in 1938 with a degree in economics.
Miller spent the first 12 years of his adult life in a succession of short-term civil service jobs. He worked as a Treasury Department clerk in Washington in 1939, a welfare investigator in New York City from 1940 to 1942, a staff economist at the War Production Board in Washington from 1942 to 1943, an economist and dispute-resolution specialist for the National War Labor Board in Philadelphia from 1943 until the end of World War II, and a trainer of mediators for the Department of Labor’s Conciliation Service back in Washington after the war.
By the late 1940s, the 32-year-old Miller was professionally rudderless. After briefly working for the Machinists Union and the United Auto Workers, he found a professional home in 1950 as a staff economist at the Pittsburgh headquarters of the Steelworkers Union. During the next 16 years, he climbed his way into the Steelworkers Union’s inner circle.
In December 1965, the Players Association sought its first full-time executive director. For years, the owners had outsmarted the players’ part-time legal advisers, who failed to protect the players’ interests. Miller came to the players’ attention through veteran pitcher Robin Roberts. One of several players entrusted with finding an executive director, Roberts asked University of Pennsylvania labor relations expert George Taylor to recommend “a strong man of established character.” Taylor, having worked with him on the National War Labor Board and the Kaiser Steel Long-Range Sharing Plan Committee, suggested Miller. Roberts and fellow players Jim Bunning and Harvey Kuenn interviewed Miller and recommended him for the job. But the 20 elected player representatives, led by Pittsburgh Pirates pitcher Bob Friend, rejected the recommendation and offered the job to Milwaukee municipal judge Robert Cannon. Cannon had been the players’ part-time legal adviser since 1959 and had collected his union fees from the owners. When he was offered the executive director position, Cannon balked at moving to New York City to run the union headquarters, tried to force the players to compromise by accepting Chicago, and asked them to match his judicial pension. What he really wanted was for the owners to name him the game’s commissioner. The player representatives rejected Cannon’s demands and offe
red the position to Miller. Miller reluctantly accepted, but a majority of the players still had to vote him into office.
The owners portrayed the Jewish Miller as a left-leaning labor goon. He wore what one writer described as a “pencil-thin” mustache (Roberts begged him to shave it off) and “shimmering blue” suits (Miller denied ever owning one) that made him look like a gangster. Despite the management-led smear campaign during Miller’s visits to spring training camps in 1966, the players voted, 489-136, to hire him. The player representatives informed Miller that the owners had agreed to put up $150,000 to fund the association. After Miller’s election, however, the owners reneged on their offer. The commissioner’s lawyer, Paul Porter, informed the association that the payments were illegal under the Taft-Hartley Act, which Miller knew; but that had not stopped the owners from paying the legal fees of their man, Judge Cannon. The players agreed to fund the association and Miller’s salary through $344 in annual union dues.
The 49-year-old Miller opened the Players Association’s New York office at 375 Park Avenue with $5,400 in the organization’s bank account and a beat-up file cabinet. He built his labor relations revolution in baseball brick by brick. He started a licensing arm that brought royalty checks to the players and financial solvency to the association. He tackled issues including the pension plan, the minimum major league salary (which was $6,000 in 1966), the scheduling of games, the structure and payment for the playoffs, and the grievance procedure. He negotiated the first comprehensive labor agreement in professional sports, a two-year pact between the players and the owners known as the 1968 Basic Agreement, and during their 1969 pension dispute he showed the players what they could accomplish by sticking together.
Miller educated the players. The owners had brainwashed them into believing that the game could not survive without the reserve clause and that it was for the players’ own good. Miller explained that the reserve clause helped the owners artificially limit salaries and hold on to their players forever. The promanagement sporting press, however, insisted that Miller was the one doing the brainwashing. They portrayed him as the players’ Svengali.
Miller was not ready for Flood’s phone call or his proposed lawsuit in November 1969. The owners were too obstinate and the players were not yet unified enough to fight over the reserve clause. Nor was Flood the ideal plaintiff. At $90,000, his salary was one of the 10 to 15 highest in the game. He had earned substantial bonuses for playing in three World Series. He had been well compensated during 12 seasons with the Cardinals. He was not some middle-aged minor leaguer trapped in some team’s farm system with no chance of making it to the major leagues. Miller’s biggest concern was that Flood had no idea what he was getting himself into. Miller’s mission was clear: to make Flood aware that the lawsuit’s risks greatly outweighed any potential rewards.
On the morning of November 25, Flood and Zerman met Miller and his general counsel, Dick Moss, for breakfast at New York’s Summit Hotel. Flood began by asking Miller about the slight chance that Miller had mentioned on the phone of overturning baseball’s exemption from the antitrust laws.
Baseball’s legal monopoly, Miller explained, was created out of whole cloth by the Supreme Court of the United States. In 1890, Congress had passed the Sherman Antitrust Act, which deemed “[e]very contract, combination . . . or conspiracy” illegal that restrained “trade or commerce among the several states.” The goal was to ban monopolistic practices that prevented competition. The Sherman Act did not list exceptions for baseball or any other sport. The U.S. Constitution, however, allows Congress to regulate only commerce “among the several states.” Therefore, federal antitrust law applies only to acts of interstate commerce (as opposed to intrastate commerce occurring within a single state).
The Supreme Court got into the act of deregulating baseball in a case brought by an obscure team known as the Baltimore Terrapins. The Terrapins played in the eight-team Federal League, a rival or third major league that competed with the National and American leagues for players in 1914 and 1915. After the 1915 season, the Federal League folded when most of its clubs joined the so-called Peace Agreement with major league ball. Under this deal, five Federal League owners received either cash settlements or ownership shares in major league franchises (the owner of the Chicago Federals, for example, invested in the Cubs and moved them into his ballpark, known today as Wrigley Field). Excluded from the settlement talks, the owners of the Terrapins balked at a belated cash payoff and demanded a major league team in Baltimore. They sued under the Sherman Act, arguing that the established leagues employed the reserve clause and other monopolistic practices to destroy the Federal League. A District of Columbia jury awarded the owners of the Terrapins $80,000, which was tripled under the antitrust laws to $240,000. A federal appeals court reversed the jury’s verdict.
In a 1922 decision, Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, the Supreme Court unanimously agreed with the appeals court, ruling that the owners of the Terrapins were not entitled to damages under the Sherman Act, because professional baseball was not interstate commerce. Federal Baseball is often mischaracterized as a decision that baseball is a sport, not a business. The Court made no such distinction. “The business is giving exhibitions of base ball,” the Court wrote, “which are purely state affairs.” The Court said that the transportation of players from city to city was incidental to the “business” of professional baseball because the game itself, when played, was wholly intrastate. It borrowed the lower court’s analogy of lawyers or lecturers traveling to distant cities as proof that travel alone did not make baseball games interstate commerce. Federal Baseball established Major League Baseball’s legal monopoly, which today is referred to as baseball’s antitrust exemption.
The author of this much-maligned opinion was not some jurisprudential hack, but one of the greatest jurists in the history of American law, Justice Oliver Wendell Holmes. With his thick white hair and white mustache, the 81-year-old Holmes looked like a god. Right or wrong, an opinion from Holmes was like Moses delivering the Ten Commandments. It might as well have been carved in stone. It did not help that Holmes “loathe[d] and despise[d]” the Sherman Act, which he referred to as a “foolish law,” or that he knew almost nothing about baseball. A bookish, unathletic child who had grown up in Boston before the Civil War, he had probably never seen a baseball game. In Holmes’s defense, radio broadcasts of baseball games in 1922 were in their infancy, the farm system concept was not popularized until the 1930s, and the first television broadcast of a major league game was not until 1939. In 1922, it was not obvious that baseball’s effect on interstate commerce was more than “incidental.”
The power of Justice Holmes was illustrated 31 years later in the second major Supreme Court case involving baseball’s monopoly status. In Toolson v. New York Yankees, a 29-year-old pitcher named George Earl Toolson wanted out of the Yankees’ minor league system. Toolson had signed with the Red Sox out of Willamette University, served in World War II, and ruptured a disk in his back in 1948 pitching for the Triple-A Louisville Colonels. After the 1948 season, he was traded to the Yankees’ organization. He struggled in 1949 after being sent from Triple-A Newark to the Oakland Oaks of the Triple-A Pacific Coast League. The following year, the Yankees demoted him to Class A Binghamton. Toolson refused to report to Binghamton and on May 25, 1950, was placed on the ineligible list. He returned home to California and worked as a film printer for a Hollywood studio. Blacklisted from the game, he challenged the reserve clause in federal court.
After two lower courts rejected Toolson’s lawsuit by relying on Federal Baseball, the Supreme Court agreed to hear Toolson’s case and combined it with two other unsuccessful baseball lawsuits. Toolson and his co-plaintiffs argued before the Court that radio and television broadcasts, train and air travel, and the expansion of the minor leagues had left no question that baseball was interstate commerce.
The Supreme Court, however, is
extremely reluctant to reverse its own decisions. It is a principle known as stare decisis, which means “let the decision stand.” Supreme Court decisions, or precedents, are interpretations of American law that are relied on year after year by judges, lawyers, businessmen, and scholars. This is particularly true when the Court interprets the meaning of federal legislation such as the Sherman Act. The general immutability of these decisions is based on stare decisis.
The Court in 1953 included some of the best and brightest justices. Chief Justice Earl Warren, an Eisenhower nominee, had recently joined such legal luminaries as Hugo Black, William Douglas, Felix Frankfurter, and Robert Jackson. A year later, the Court unanimously declared in Brown v. Board of Education that racially “separate but equal” public schools were “inherently unequal” and therefore unconstitutional. Brown reversed the Court’s 1896 Plessy v. Ferguson decision, proving that stare decisis was not insurmountable. When it came to Toolson, however, Warren, Black, Douglas, Frankfurter, and Jackson were among the seven justices who voted in Major League Baseball’s favor.
The Court’s unsigned, one-paragraph opinion in Toolson refused to reexamine the “underlying issues” about whether Major League Baseball in 1953 had risen to the level of interstate commerce. It claimed to be a reaffirmation of Holmes’s opinion in Federal Baseball. Yet, in a single paragraph, it completely changed Federal Baseball’s meaning. The Court in Toolson offered three additional reasons for baseball’s legal monopoly:1. Congress had done nothing to correct Federal Baseball despite hearings in 1951 about baseball’s monopoly status;
