by Brad Snyder
After Warren announced his retirement in June 1968, Johnson tried to replace him with Fortas. Fortas’s nomination as chief justice failed because of Johnson’s lame-duck status, anti-Warren Court sentiment, and a financial scandal that eventually forced Fortas to resign from the Court. Fortas had lied about agreeing to a $20,000-a-year lifetime salary to serve on a foundation started by financier Louis Wolfson, who was convicted of securities fraud (Goldberg had turned down a similar offer from Wolfson after leaving the Court for the UN). After Fortas resigned, Johnson asked Goldberg about nominating him as a recess appointment (when Congress was out of session). But Johnson changed his mind after his staff discovered the president had spoken out against recess appointments. He later recommended that his successor, Richard Nixon, nominate Goldberg instead. There was no chance of that happening; thus Goldberg was forced to return to private practice, making him available to Flood.
For Miller, having a former Supreme Court justice take on Flood’s case accomplished several goals. It let the owners know that the players meant business. It attracted media attention. And it gave Flood a better chance to persuade the Court to hear his case.
For Goldberg, the Flood case was a chance at redemption. He could match wits with the nine men on the Court, remind the country that he was one of its brightest legal minds, and justify why he still carried himself like a Supreme Court justice.
Since leaving the UN and joining Paul, Weiss, Goldberg had championed several left-wing causes. In July 1969, he won a federal appeal of Yale chaplain William Sloane Coffin Jr.’s conviction for conspiring to aid draft resisters. He took on a massive land rights case involving Alaskan Indians. And he co-chaired a committee to investigate the numerous police clashes with the Black Panthers.
Goldberg grasped the moral implications of Flood’s lawsuit. As a Chicago lawyer in December 1946 and January 1947, Goldberg had litigated a similar dispute involving professional basketball’s first giant, George Mikan. A bespectacled 6-foot-9 All-American at DePaul, Mikan signed a professional contract with the National Basketball League’s Chicago American Gears. On December 11, 1946, Mikan quit the team after its first home game because of a contract dispute. Mikan, who was pursuing his law degree at DePaul, claimed that the American Gears had reneged on an oral agreement to pay him an additional $25,000. His five-year contract paid him $7,000 a year. The team also agreed to pay him a $50 weekly salary to work in its legal department, $5 for each basket, $2 for each free throw, and an insurance policy equal to his salary. Publicly, the American Gears boasted that Mikan’s contract was worth $60,000. Privately, the owner of the team asked him to take a pay cut. Mikan was also upset about the way the team was being run: Mikan’s brother, Joe, was one of four players cut at the train station just before the team left for an eastern road trip, and the head coach did not show up for the team’s first home game.
The day after Mikan quit the team, Goldberg filed a declaratory judgment action seeking to void Mikan’s contract and declare the star center a free agent. He argued that the contract was invalid because it was unilateral or one-sided—the American Gears could release Mikan at any time, but the player was not allowed to quit and join another team. The American Gears also were under no obligation to pay Mikan if they went out of business, and could assign his contract to another team. As proof of the contract’s invalidity, Goldberg’s brief cited two pre-Federal Baseball cases in which the owners were unable to enforce the reserve clause and prevent stars Napoleon Lajoie and Hal Chase from jumping to rival leagues. The Cook County judge never ruled on the issues. After six weeks of legal wrangling, Mikan and the American Gears settled their differences on January 28; three nights later, he returned to the team.
Thanks to the Mikan case, Goldberg arrived at breakfast with Miller and Moss armed with a firm understanding of the reserve clause. A former Wrigley Field stadium vendor, he had sold coffee at Prohibition-era Chicago Cubs games. His allegiance to the Cubs notwithstanding, Goldberg saw the need to challenge the lifetime ownership of players. As a labor lawyer and a leader of the Warren Court’s rights revolution, he was outraged.
Goldberg regarded this as “an important case in principle” and offered to take the case without collecting his hourly fee. He asked only that the Players Association pay his expenses and the hourly fees and expenses of the other partners and associates on the case. “Arthur Goldberg for expenses!” Miller wrote. “That was like Sandy Koufax pitching for pass-the-hat.”
Goldberg’s giveaways infuriated his Paul, Weiss partners. He frequently brought in high-profile clients and, without consulting his partners, grandly announced that he would not collect his hourly fee. Goldberg did not work for the American Civil Liberties Union or the government; he worked for a large New York law firm. He insisted on riding in a chauffeured limousine to and from work. He retreated to a 28th-floor Park Avenue corner office and collected a mid-six-figure salary. His salary derived from the billable hours of his fellow partners and associates whether or not he charged for his own time.
A few days after Flood had addressed the Players Association in Puerto Rico, he flew to New York with Allan Zerman to meet Goldberg. Flood was nervous about making a good first impression on a former Supreme Court justice. What should he call him? Your Honor? Mr. Ambassador? Mr. Justice? Mr. Goldberg? He was so nervous that he was afraid he was going to bungle Goldberg’s last name.
Flood was in awe of Goldberg even though there was nothing physically imposing about him. The former justice was 5 feet 9 and 150 pounds, with a double chin, wavy white hair, and thick black plastic glasses. Nor was his gray and white corner office very intimidating. The blond wood and modern furniture—a couch, a glass table, and a few armchairs—were more befitting a Hollywood studio executive than a former justice. Goldberg nonetheless made a good first impression on Flood. “When he talks about legal ideas and his business,” Flood said, “he becomes 6 feet 8. His office on Park Avenue looks like Busch Stadium.”
Goldberg put Flood at ease by asking factual questions about the case. Goldberg alluded to his experience with the issues. He raised many of the same concerns as Miller and the player representatives. He reiterated the difficulties of persuading the Court to hear a case about an issue it had decided two previous times. He wanted Flood to know that they faced long odds and that Flood had little to gain even if they succeeded.
“I won’t be treated as if I were an IBM card,” Flood said.
“All right,” Goldberg replied. “Let’s go.”
Flood could not believe that “the most famous lawyer in the world” had just agreed to represent him.
The next decision was how to fire the first shot. It was the third week of December and Flood’s intentions to sue baseball had not been made public. One reason was the location of the players’ 1969 winter meetings. Incensed at the owners’ refusal to meet with them at the 1967 winter meetings in Mexico City or the 1968 winter meetings in San Francisco, the players decided in 1969 to hold their meetings in Puerto Rico a week after the owners’ meetings in Florida. Another reason was that most of the sporting press was in the owners’ pocket. Sportswriters attended the owners’ meeting in Florida, but they neglected to go to Puerto Rico. Nor did they follow up with the players upon their return. In an era before cellular phones, cable television, and the Internet, the news cycle was slower; it was easier to keep something like Flood’s lawsuit under wraps. The Phillies and the Cardinals, along with the rest of the baseball establishment, remained in the dark.
Miller clued in one of his social friends, New York Times baseball writer Leonard Koppett. One night in mid-December when they went out to dinner with their wives, Miller revealed Flood’s proposed lawsuit and the Players Association’s decision to hire Goldberg. Miller asked Koppett’s thoughts. Koppett predicted that Flood would lose at trial and on appeal, but he would get a fair shot with the Supreme Court. Koppett agreed at dinner to hold off on writing the story, but there was no doubt he was going to break it.
Flood’s first shot came in the form of a letter to the commissioner, which has since found its way into a book about the best letters of the 20th century and into the Baseball Hall of Fame. Miller and Moss wrote the letter, Goldberg edited it, and Flood approved it. All of their voices can be heard.
For Miller and Moss, the letter staked out the union’s position that the reserve clause was unjust. Seven months into his job as the union’s executive director, Miller had predicted in a February 12, 1967, New York Times interview:
The idea that a baseball player is a piece of property that can be owned, traded, sold or released, and that his only recourse is to take it or quit, has been accepted for too long. Sooner or later the players will want to get into this question of whether they are someone’s property, or whether they are not. When that happens, there will have to be some fundamental changes in the thinking of baseball club owners.
Less than three years later, Flood proved Miller right. Many of Flood’s fellow players, however, still believed the owners’ line that base-ball could not survive without the reserve clause. Anything less than complete control over player mobility, the owners claimed, would destroy the game. Flood’s letter marked the first step in changing people’s minds.
For Goldberg, the letter set up Flood’s legal claim that Major League Baseball used the reserve clause to operate as an illegal monopoly. It put the owners on notice of Flood’s grievances and offered them the opportunity to rectify the situation. The failure to meet those demands would give Flood no other recourse but to quit the game and take the owners to court.
For Flood, the letter declared his freedom. He had told the player representatives in Puerto Rico that he planned to write the commissioner a letter announcing that he was a “free man in a free society” and he “should have the right to decide” where to make his living. Miller and Moss wanted to begin the letter with the words: “I’m free, black, and 31”—inspired by To Be Young, Gifted, and Black, a popular off-Broadway play in 1969 about the life of the late playwright Lorraine Hansberry (A Raisin in the Sun). Flood was certainly young, gifted, and black. Goldberg, however, nixed the opening as too flippant for such a serious document.
After Miller, Moss, Goldberg, and Flood agreed on the document’s tone and the language, the two-paragraph letter was typed onto stationery from Flood’s photography studio business, Curt Flood & Associates, Inc., and signed by Flood in New York. Fear swept through Flood before they mailed the letter. He feared bucking the establishment. He feared he was destroying his life, because he had no idea how this was going to turn out. But relief soon replaced fear as Flood realized that someone was finally doing something about the unfairness of the reserve clause.
The letter, copies of which were sent to Miller and Phillies general manager John Quinn, was mailed on December 24, 1969, and addressed to only one person: the commissioner of baseball, Bowie Kuhn.
Dear Mr. Kuhn:
After twelve years in the Major Leagues, I do not feel that I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.
It is my desire to play in 1970, and I am capable of playing. I have received a contract offer from the Philadelphia Club, but I believe I have the right to consider offers from other clubs before making any decisions. I, therefore, request that you make known to all the Major League Clubs my feelings in this matter, and advise them of my availability for the 1970 season.
Sincerely yours,
Curt Flood
Flood’s letter miffed Kuhn. The commissioner had met with the player representatives in Puerto Rico on December 14, the day after they had voted to support Flood’s lawsuit. He addressed a number of the players’ concerns: fan voting for the All-Star Game, earflaps on helmets, the length of the season, artificial turf, and signing autographs before games. Neither Flood’s proposed lawsuit nor the reserve system ever came up.
Kuhn attributed the players’ silence to Miller. He claimed that the union chief had placed a gag order on any discussion of Flood or the reserve clause. The owners began repeating a single theme: Miller was the man behind this lawsuit, not Flood.
Indeed, Kuhn’s legal advisers chuckled when they read Flood’s letter. Language such as “irrespective of my wishes” and “inconsistent with the laws of the United States and of the several States” was a dead giveaway. This was Miller’s and Moss’s handiwork, not Flood’s.
Phillies general manager John Quinn felt more embarrassment than amusement. After spending time with Flood in St. Louis and New York, he had been convinced that Flood was going to sign. He had even confided to a black Philadelphia weekly newspaper that he planned to announce Flood’s signing at the team’s January 7 Newsy Notes Club meeting. On December 4, Flood had sent Quinn a dictated letter apologizing for not returning Quinn’s phone call. “I feel that I must resolve a number of personal problems before I make a final decision,” Flood said. He was out of town and promised to call Quinn the week of December 22. Instead, Quinn simply received Flood’s December 24 letter along with the commissioner. Quinn’s secretary read it to him over the phone while he vacationed in Arizona. Like the commissioner, Quinn blamed Miller for Flood’s supposed change of heart.
The letter’s biggest stroke of genius was its first three words: “Dear Mr. Kuhn.” Miller knew that by addressing the letter to Kuhn, rather than to Quinn of the Phillies or Devine of the Cardinals, Miller was placing Kuhn squarely on the owners’ side of the ball. Miller wanted to smash the myth that the commissioner was impartial. If the owners’ principal theme was that Flood’s lawsuit was conceived and driven by Miller and the Players Association, then Miller’s theme was that Kuhn was employed by and a water carrier for the owners. A former lawyer for the National League, Kuhn had worked for much of his adult life protecting the owners’ cartel.
Bowie Kent Kuhn grew up a die-hard Washington Senators fan. His first memories of baseball coincided with the Senators’ last World Series appearance in 1933. Six years later, he worked inside the Griffith Stadium scoreboard for $1 a day. He started as an assistant to the scoreboard operator and rose to head of the scoreboard. His first Social Security card, which he kept in his wallet as commissioner, listed Senators owner Clark Griffith as his employer. His immediate boss was Griffith’s nephew, Calvin. Kuhn picked up his love for the Senators through his mother. His father, the head of the Washington, D.C., office of the Petroleum Heat and Power Company, did not have time for baseball.
Born into a devout Catholic family, Kuhn was the youngest of three children and, at 6 feet 5, the tallest. At Theodore Roosevelt High School, the basketball coach spotted Kuhn in the hallway and asked: “Son, you’re the tallest boy in the school. How come you’re not out for the basketball team?”
“Because I’m a lousy player,” Kuhn replied.
“You let me be the judge of that,” Red Auerbach said.
After a week, Auerbach informed Kuhn: “Son, you were right, and I was wrong. You won’t have to come back tomorrow.”
Auerbach left Roosevelt High shortly thereafter and went on to coach the Boston Celtics; Kuhn returned to the team but never amounted to anything as an athlete.
Kuhn’s athletic shortcomings did not diminish his love for baseball. After two years of stateside military service beginning in June 1944, he graduated from Princeton and the University of Virginia law school. In September 1950, he joined the New York law firm of Willkie Owen Farr Gallagher & Walton (later known as Willkie Farr) because one of its name partners was one of his political heroes, former Republican presidential candidate Wendell Willkie, and because the firm represented the National League.
Shortly after joining the firm in November 1950, Kuhn knocked on the door of senior partner Louis Carroll. Carroll had represented the National League since the 1930s and was known in baseball circles as “The Wise Man.” Any thorny legal i
ssue in baseball prompted someone to ask: “What does The Wise Man say?” Kuhn let Carroll know that he wanted to work on baseball issues.
The midcentury challenges to baseball’s antitrust exemption provided Kuhn with the opportunity. The Second Circuit’s decision in Gardella v. Chandler in 1949 suggested that the exemption was on shaky ground. Yankees farmhand George Toolson filed suit in the summer of 1950, as did two other plaintiffs. Carroll pulled his eager young associate into the litigation. For the next three years baseball fought those cases, until the Supreme Court reaffirmed Federal Baseball in Toolson. Along the way, Kuhn met baseball commissioner Ford Frick, American League president Will Harridge, and National League president Warren Giles, and became Carroll’s right-hand man on baseball matters.
Kuhn earned his stripes with the baseball establishment 14 years later in an important but often overlooked antitrust victory in Milwaukee. After the 1964 season, the owners of the Milwaukee Braves decided to move the team to Atlanta. In an effort to keep their team, the people of Wisconsin sued Major League Baseball in state court. They hired Louis Oberdorfer—a future federal judge, former head of the Kennedy Justice Department’s tax division, and one of Washington’s best lawyers—as a special consultant. They did not try to attack Federal Baseball and Toolson or to apply federal antitrust law. Instead, they argued that moving the Braves to Atlanta violated Wisconsin’s antitrust laws. A state trial judge agreed, issuing an injunction that prevented the Braves from playing anywhere but Milwaukee until baseball granted the city an expansion team.
Kuhn took the lead in arguing baseball’s case before the Wisconsin Supreme Court. Baseball was caught in a clever trap: It was either interstate commerce subject to federal antitrust law or intrastate commerce subject to Wisconsin’s antitrust law. Put another way, either Federal Base-ball was wrong (and baseball lost its exemption) or the Wisconsin trial judge was right (and the Braves stayed in Milwaukee). The future of the game’s legal monopoly was at stake.
