by Brad Snyder
2. Baseball had developed for the last 30 years under Federal Baseball and had relied on the assumption that it was a legal monopoly; and
3. Any future action on baseball’s antitrust exemption should be taken by Congress.
One commentator described Toolson as the first step in “the greatest bait-and-switch scheme in the history of the Supreme Court.” The key to the “scheme” consisted of the second half of the opinion’s final sentence,a last-minute addition to the unsigned opinion. “Without reexamining the underlying issues, the judgments below are affirmed on the authority of Federal Baseball . . . ,” Toolson concluded, “so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.” But Holmes never said anything in Federal Baseball about what Congress had intended in 1890, only that professional baseball as it operated in 1922 was not interstate commerce. The second half of this final sentence was recently discovered to be the handiwork of the Court’s new chief justice, Earl Warren. Warren was extremely uncomfortable with the opinion, which had been written by Hugo Black, the former U.S. senator among the justices. Warren asked Black to add the “so far as” clause “to make it clear that Congress has the right to regulate baseball if and when it desires to do so.” Neither Black nor the other six justices in the majority objected to Warren’s addition, which helped transform Holmes’s opinion into an express “exemption” for baseball.
But, as Justice Harold Burton wrote in his eight-page dissent, Congress passed the Sherman Act without saying a word about baseball. The Court was the institution that claimed baseball did not have a sufficient impact on interstate commerce. Justice Holmes’s decision also was based on an antiquated conception of interstate commerce, which the Court expanded dramatically in upholding the constitutionality of President Roosevelt’s New Deal programs. Baseball in 1953 was obviously interstate commerce, given its radio and television revenue and extensive network of minor league teams. If the Court’s prior decision was not wrong in 1922, it was definitely wrong now. Only Stanley Reed joined Burton’s dissent.
Toolson also made it possible for baseball to enforce the reserve clause. Before and even after Federal Baseball, lower courts had been reluctant to enforce the reserve clause because the contracts were so one-sided against the players. Toolson, by redefining Federal Baseball, further insulated the reserve clause from legal challenge.
As Miller explained, Flood’s chances of defeating Federal Baseball, Toolson, Oliver Wendell Holmes, and stare decisis—just to get to the issue of whether the reserve clause was illegal—were basically slim to none.
Miller was not a lawyer, but as an economist he was well versed in antitrust law. He also relied on the opinion of his general counsel, Dick Moss, who had examined all the relevant cases since Toolson. A former assistant state attorney general for Pennsylvania, arbitration lawyer from the Steelworkers’ legal department, and diehard Pirates fan, Moss had applied for Judge Cannon’s position as part-time legal counsel in 1959. A brash 35-year-old Harvard Law School graduate, Moss was fire to Miller’s ice. He played the role of attack dog, while Miller often stayed above the fray.
With Moss sitting beside him, Miller explained that since Toolson several Supreme Court decisions had cast doubt on the logic of Federal Baseball. The Court had abandoned Federal Baseball’s limited definition of interstate commerce in refusing to extend antitrust exemptions to theatrical performances, professional boxing, and professional football. The Court’s 1957 decision in Radovich v. NFL acknowledged that Federal Baseball “was at best of dubious validity.” Nor was there any reason why baseball deserved an exemption but football did not. “If this ruling is unrealistic, inconsistent, or illogical,” a six-justice majority said in Radovich, “it is sufficient to answer, aside from the distinctions between the businesses, that were we considering the question of baseball for the first time upon a clean slate we would have no doubts.”
But even if the Supreme Court agreed to hear the case and miraculously decided to reverse Justice Holmes, abandon stare decisis, and wipe out its two hallowed baseball precedents, Miller predicted, Flood would still lose. “It’s a million-to-one shot, but even if that million-to-one shot comes home, you’re not going to get any damages,” Miller said. No trial court in America was going to award damages retroactively to a ballplayer making $90,000 a year under player contracts and trades that had been deemed legal by the Supreme Court for nearly 50 years. A win at the Supreme Court still meant a loss for Flood.
“But it would benefit all of the other players and all the players to come, wouldn’t it?” Flood asked.
Miller said it would.
“That’s good enough for me,” Flood replied.
Miller knew he had found a man of uncommon principle, but the union’s executive director was not done playing devil’s advocate. He explained that a lawsuit would take at least two to three years to wind its way through the federal court system to the Supreme Court. By the time the Court reached a decision, Flood would be 34. He would lose three seasons and nearly $300,000 in salary. His playing career would be over.
Flood responded that he had no intention of playing for the Phillies and that he was serious about sacrificing his playing career to sue baseball.
The owners, Miller continued, were a mean and vindictive bunch. Flood’s lawsuit would end any aspirations he had to be the first black major league manager.
Flood said he had no interest in managing.
What about working as a major league coach or scout? Miller said Flood would be blacklisted. He could forget about any future career opportunities in the game.
“You’re not telling me anything new,” Flood said.
Flood’s lawsuit would be targeting not only Major League Baseball, Miller said, but also his former employer, Anheuser-Busch. Gussie Busch was the most powerful businessman in St. Louis. He had set up Flood’s former teammate Roger Maris with a Budweiser distributorship in Florida. The head of the King of Beers could just as easily destroy Flood’s photography and portrait business and reputation in St. Louis.
Flood had not thought of that, but was not deterred. He was not likely to be receiving any Christmas cards from Busch this year anyway.
Miller then pressed Flood about his financial condition. Miller’s inquiries led him to tell Flood about another reserve clause lawsuit, involving New York Giants outfielder Danny Gardella.
A stocky, muscular man who liked to walk up a flight of stairs on his hands, burst into opera songs, and quote Shakespeare, the 5-foot-7-inch Gardella once left a suicide note on the bed of his Cincinnati hotel room blaming his road roommate, Nap Reyes, for his death. Reyes ran to the open window and saw a smiling Gardella hanging from a ledge 22 floors off the ground.
In 1946, Gardella risked his baseball life. He rejected a raise from $4,500 to $5,000 after batting .272 with 18 home runs the previous season. The Giants thought that wartime pitching had inflated Gardella’s offensive numbers, and by all accounts, he could not field worth a lick. Gardella showed up at the Giants’ spring training camp without a signed contract. He argued with the team’s traveling secretary after barging into the main hotel dining room in a sleeveless sweater. The team kicked him out of the hotel and planned to auction him off to a minor league team. Gardella made his own deal, signing a $10,000 contract to play for Veracruz in the Mexican League. Baseball commissioner Happy Chandler placed a five-year ban on Gardella and 14 other players who had signed Mexican League contracts.
Gardella returned from Mexico after a year. He tried to play for the semipro Gulf Oilers in a 1947 game on Staten Island against the Negro American League’s Cleveland Buckeyes and the legendary pitcher Satchel Paige. Alerted to Gardella’s presence, Chandler sent a telegram that was read over the stadium loudspeaker: The black players would be banned from the majors for playing against Gardella or any other players who had jumped to the Mexican League. With major league teams beginning to open their do
ors to blacks that season, Paige and the Buckeyes obeyed Chandler’s edict.
In 1948, a trial judge threw out Gardella’s lawsuit against the reserve clause based on Federal Baseball. On appeal, however, Gardella landed two of the best federal judges in history, Learned Hand and Jerome Frank. The intellectual heir to Justice Holmes and perhaps the greatest American jurist never to serve on the Supreme Court, Hand wrote a careful opinion returning Gardella’s case for a trial to determine whether baseball had developed into interstate commerce. Frank, a liberal New Dealer and “legal realist” who believed that economic, psychological, and sociological factors influenced judicial decisions, joined Hand’s opinion and wrote a separate opinion that declared Federal Baseball an “impotent zombi,” baseball interstate commerce, and the reserve clause both illegal and immoral.
As Gardella’s case seemed headed for trial, the baseball world abandoned him. Branch Rickey charged that anyone who opposed the reserve clause had “avowed communist tendencies,” even though Rickey’s beloved reserve clause was antithetical to a capitalist, free-market system. The players believed the owners’ rhetoric that the game could not survive without the reserve clause. Bob Feller, Stan Musial, fellow Mexican Leaguer Mickey Owen, and even banned Black Sox pitcher Eddie Cicotte all spoke in favor of it.
But Gardella’s biggest handicap proved to be his attorney, Frederic Johnson. After Johnson conducted a pretrial deposition of Chandler in open court in 1949, Johnson persuaded Gardella to accept reinstatement and a $60,000 settlement. Johnson, who owed other lawyers money and did not see how he could prove Gardella’s damages at trial, received half of Gardella’s settlement. A few years later, Johnson represented one of the Toolson co-plaintiffs before the Supreme Court.
At the time of the settlement, Gardella was working as a hospital orderly for $36 a week. In 1949, he had played for an independent Provincial League team in Drummondville, Quebec, for more money than he had made with the Giants. In April 1950, he returned to the major leagues for one at-bat with the St. Louis Cardinals and flied out to right. On April 25, the Cardinals sold him to Houston in the Double-A Texas League. Gardella struggled with Houston, quit the game, and threatened to sue again (though he never did). Gardella’s biggest regret was not seeing his lawsuit through to the end. Although he bought a house with his share, the settlement made him “feel like a Judas who had received his 30 pieces of silver.”
Miller said it would not be acceptable if Flood began a legal attack on the reserve clause that affected all his fellow players and then succumbed like Gardella to a large settlement offer.
Flood said he could not be bought. He promised to fight the reserve clause to the finish. He did not reveal to Miller that his photography business was floundering and he was not keeping up with alimony or child support payments to Beverly.
Miller continued to grill Flood. Breakfast turned into lunch. Coffee sustained them.
During the course of his interrogation, Miller asked Flood if there was anything in his private life that Curt did not want to see on the front page of the newspaper. Miller had heard rumors about Flood’s heavy drinking but was not going to bring them up unless Flood pressed him for specifics. If there was something, Miller warned Flood, the owners would make sure that it came to light.
Flood volunteered Carl’s armed robbery conviction and drug addiction, but newspapers had already covered Carl’s most recent brush with the law. Curt kept his drinking, womanizing, and financial problems to himself. Nor did he reveal the secret behind his portrait-painting business.
“Nothing you’ve said so far scares me,” Flood said.
Miller tactfully broached the question of Flood’s counsel. More than just Flood’s interests were at stake here. His lawsuit would affect current players, future players, and the Players Association’s current and future negotiations with the owners. Flood, therefore, needed the best possible legal representation. Zerman possessed neither the experience with antitrust law nor the stature to be able to litigate a case to the Supreme Court. Sitting at Flood’s side, Zerman agreed with Miller’s assessment. He was impressed by Miller’s candor with Flood about the risks involved in the lawsuit.
Flood expressed concern to Miller that a top law firm’s fees for a case like this could amount to hundreds of thousands of dollars. He asked Miller for the union’s help. Flood’s awareness of the legal costs impressed Miller.
At some point during their conversation, Flood volunteered a motivating force behind his lawsuit. He told the story about sitting on a stool in the clubhouse in Maracaibo, Venezuela, feeling the shock of being traded after two seasons in the Reds’ minor league system and vowing that he would never let himself be traded again. Both Miller and Flood would repeat the Venezuela story many times. Many players, however, are traded early in their careers. They do not react by threatening to sue Major League Baseball.
After four hours of interrogation, Miller said he would not begin to seek the Players Association’s help until Flood went home for two weeks and thought about what they had discussed.
Flood did not immediately return to St. Louis. That night he ate dinner at a Greenwich Village restaurant with Phillies general manager John Quinn. They talked for four hours over dinner and drinks. The more time Flood spent with Quinn, the more he liked him.
Flood broached the subject of a salary for 1970, following Miller’s advice to explore all his options. Quinn offered him $90,000 plus $8,000 for spring training expenses. Spring training expenses usually amounted to a few hundred dollars. Quinn’s offer was nearly the $100,000 contract that he had sought from the Cardinals before the 1969 season. Money, however, was not the issue. The issue was whether Flood wanted to play baseball in 1970 and whether he was willing to submit to a system that ignored his desire to stay in St. Louis or play for another team of his choice.
An incident later that evening persuaded Quinn that Flood would play for the Phillies. A woman at the next table interrupted Flood’s conversation with Quinn and said to Flood: “I know you from somewhere. Don’t tell me. Lou Brock!”
Flood wanted to spare himself further embarrassment and to send the woman on her way as quickly as possible. “No, I’m Curt Flood,” he told the woman, “and this is John Quinn, the general manager of the Phillies. I’m with them now.”
With the words “I’m with them now,” Quinn believed that he had his man. He told several members of the Philadelphia media to expect a public announcement about Flood’s signing.
To Flood, however, the words meant nothing. He never told Quinn about the meeting earlier that day with Miller and Moss or his problems with the reserve clause. At the end of four hours of dinner and drinks, Flood agreed to call Quinn in December.
On November 26, the day after dining with Quinn, Flood headed to a meeting in Philadelphia. Shortly after the trade, a Philadelphia-based executive for Gault Galleries, a national chain of art galleries, contacted Flood. Flood agreed to meet with the executive to explore possible business opportunities. He arrived at noon for a two-hour lunch at Penn Towers where they discussed the art franchise business. He visited the Gault warehouse, a suburban gallery, and then Gault’s downtown offices. He even took home one of the gallery’s paintings, a nude woman looking into her purse, painted by Paul Butterfield of the Paul Butterfield Blues Band.
During those seven hours, the two men could not agree on a business deal. Flood wanted part ownership in Gault and a possible tie-in with his own franchise business. Gault wanted him to work in public relations in conjunction with the opening of new galleries in the Philadelphia area. The Gault executive called Quinn and offered to serve as an intermediary in persuading Flood to come to Philadelphia. Quinn dismissed the offer, perhaps thinking that based on the “I’m with them now” comment, Flood was already on his way.
Flood returned to St. Louis and spent a week sitting around his apartment thinking about what Miller had told him. He and Zerman huddled at a St. Louis restaurant one night making a list of the pros and co
ns about suing baseball. They looked at each other after making the list. Flood decided to sue.
Flood called Miller in early December with his decision and his desire to enlist the union’s help with legal fees. Miller suggested they meet once more in person. Miller and Moss had begun talking to some of the player representatives; Moss had also begun researching the law and plotting strategy. Miller wanted to give Flood an idea of their next move. He also wanted one last chance to look Flood over before they embarked on a lawsuit that would affect both of their futures.
One night in early December, Flood and a female companion arrived at Miller’s Greenwich Village apartment for cocktails. Then they joined Miller and his wife, Terry, for a relaxing dinner at Nat Simon’s Penguin, a steakhouse that billed itself as “the second most charming restaurant in the world.” The conversation over dinner and drinks was light. They talked about the case, but not with the intensity that had marked breakfast at the Summit Hotel.
Miller believed that in Flood he had found a principled man. He was still curious about why Flood was throwing away his career for a lawsuit he had little chance of winning and no chance of benefiting from, but Miller knew he might never know the answer to this question. It did not seem to be a coincidence that the potential plaintiff was black. Four hours of interrogation and their most recent dinner had not revealed the depths of Flood’s racial convictions. Miller supported Flood yet still wondered where this young man was getting his resolve.
CHAPTER THREE
To find a deeper reason why I took this on, you’d have to go back to my mother. Despite all of what had happened to her, she taught me to believe that America would live up to its promise, it would live up to the dignity it was supposed to give you. If you worked hard, you could achieve that dream, that American dream.
—Curt Flood’s journal
