A Well-Paid Slave

by Brad Snyder

  Kuhn and his colleagues conceded that baseball was interstate commerce. They said that Toolson rested on stare decisis—the exemption should stand because it had been around a long time and baseball had relied on it. Then they argued that the enforcement of each state’s antitrust law would throw baseball into organizational chaos. They compared Major League Baseball to a railroad. If each state enforced different regulations on the length of rail cars, then cross-country train travel would be impossible. If each state enforced different regulations on baseball, then major league teams would have to go back to barnstorming. Federal law, therefore, preempted state law in this instance. Agreeing on the result but not on the rationale, the Wisconsin Supreme Court voted 4-3 to reverse the trial court’s order. The Braves moved to Atlanta. Baseball narrowly escaped with its antitrust exemption intact. Kuhn was the hero. “Bowie Kuhn is a very good lawyer,” his Willkie Farr colleague Lou Hoynes said, “and this was no hanging curveball.”

  Miller did not hold Kuhn’s legal acumen in the same high regard. Miller’s first impression of Kuhn came after a July 1966 meeting in Chicago where baseball officials had signed a new television contract. A lawyer for the National League, Kuhn informed Miller that then-commissioner William Eckert was about to hold a press conference announcing the deal as well as the amount the owners planned on contributing to the players’ pension fund. Miller pulled Eckert aside and informed him that any announcement about the pension fund would be a gross violation of federal labor law. The amount of the owners’ pension contribution must be negotiated with the union. Eckert heeded some of Miller’s advice, announcing only the new television contract, but not the part about finding a lawyer who knew something about labor law.

  Five months later, with Lou Carroll beginning a battle with cancer and relinquishing his National League counsel duties, Kuhn joined the owners’ three-man Players Relations Committee (PRC), which negotiated labor and pension agreements with the players. Kuhn found himself on the opposite side of the negotiating table from Miller. He came to view Miller as “pedantic, fussy over details and unwilling to deal straightforwardly with issues. . . .The result was a never-ending game of cat and mouse in which Miller conducted union affairs with such endless slyness that he soured the relations between clubs and players.” It was the beginning of a hate-hate relationship. For the next three years, the two men butted heads at the negotiating table. Then, in early February 1969, Kuhn became commissioner and declared himself impartial.

  Kuhn’s Willkie Farr partners saw the commissionership as his perfect exit strategy from the firm. He had no clients of his own. And Lou Carroll’s heir apparent as National League counsel was not Kuhn, but Lou Hoynes. Many people considered Hoynes the genius behind the strategy in Milwaukee. After Hoynes became National League counsel, he worked so closely with Kuhn that people referred to Hoynes as “the shadow commissioner” or “Bowie Kuhn’s brains.”

  Kuhn was a compromise choice for commissioner. The only thing the owners could agree on at the 1968 winter meetings in San Francisco was firing retired air force lieutenant general William Eckert. A few weeks later at a meeting at the O’Hare Inn outside Chicago, they stayed up all night and voted 19 times without coming up with Eckert’s successor. None of the four candidates—Yankees president Mike Burke, Yankees general manager Lee MacPhail, Montreal Expos president John McHale, and San Francisco Giants vice president (and future National League president) Chub Feeney—garnered the necessary approval of three-quarters of the owners in each league. One of the game’s most powerful figures, Dodgers owner Walter O’Malley, decided to bless Kuhn’s candidacy. Less than two months later in Miami, the owners unanimously elected Kuhn to a one-year trial run as commissioner pro tem.

  Kuhn believed that he was the second coming of Judge Landis. A white-haired, steely-eyed federal judge, Kenesaw Mountain Landis earned national acclaim in 1907 for fining John D. Rockefeller’s Standard Oil Company $29 million for antitrust violations. Like many of Landis’s judicial decisions, the fine was reversed on appeal. In 1915, Landis curried favor with the major league owners by refusing to rule on an antitrust lawsuit filed by the Federal League in his courtroom. Landis’s delay tactics helped the major league owners run the Federal League out of business. After the 1919 Black Sox scandal destroyed baseball’s credibility, the owners tapped Landis as their first commissioner and gave him unlimited authority to clean up the game.

  Until he died 24 years later, Landis ruled the game like a benevolent dictator. He banned nearly two dozen players for life for gambling and other illegal activities. He was a leading force in keeping blacks out of Major League Baseball during his lifetime. Dodgers general manager Branch Rickey signed Jackie Robinson less than a year after Landis’s death in November 1944.

  As insensitive as Landis was about race, he was sensitive to the injustice of the reserve clause. He declared outfielder Fred Bennett a free agent in 1930 after the St. Louis Browns kept shuttling him back and forth between their minor league teams. Browns owner Phil Ball was so incensed that he challenged Landis’s authority in federal court; Landis won. Landis also freed Tommy Henrich, who wrote the commissioner after the 1936 season about being stuck in the Indians farm system. Henrich signed for a $20,000 bonus and $5,000 contract with the Yankees. The commissioner crusaded against the farm system, freeing 91 of the St. Louis Cardinals’ minor leaguers in 1938, and 87 of the Detroit Tigers’ minor leaguers and 5 of the Tigers’ major leaguers two years later. One of those Tiger minor leaguers was Danny Gardella. When it came to reserve clause abuses, the players had a friend in Judge Landis.

  Kuhn deluded himself into believing that he possessed Landis’s power and impartiality rather than a lifetime record as a management lawyer. He was the youngest commissioner in the history of the game at age 42, but with his baritone voice, 6-foot-5-inch and 230-pound frame, receding brown hair, blue eyes, graying sideburns, light plastic eyeglasses, and conservative three-piece suits, he looked and acted the part. His defining characteristic was his pomposity. He delivered his decisions as if he had brought them down from a mountaintop. Syndicated columnist Red Smith, a Wisconsin native who blamed Kuhn for the Braves’ move to Atlanta and blanched at Kuhn’s self-important manner, referred to the commissioner as “the game’s upright scoutmaster.” Smith, more than any other sportswriter, helped portray Kuhn as “the ultimate stuffed shirt.”

  Like Landis, Kuhn saw himself as the protector of the game’s integrity. The Major League Agreement gave the commissioner the power to investigate and punish “any act, transaction or practice charged, alleged or suspected to be not in the best interests of the national game of baseball.” Although Kuhn rarely invoked the “best interests” clause, he took action when anything offended his sensibilities. Flood’s lawsuit plainly fell under that category.

  Kuhn acted firmly and decisively in his first few months as commissioner.He won praise in late February 1969 from the press and even from Miller for persuading the owners to settle the pension dispute that threatened to keep the players out of spring training. He talked Donn Clendenon out of retirement by returning him to Montreal and ordering the Expos to compensate the Astros with additional players and cash. He also ended post-trade retirement talk from Ken Harrelson, persuading him to report to Cleveland after the Indians guaranteed him a new contract worth $100,000. “Baseball,” Kuhn said, “needs Ken Harrelson.” In late May, the owners gave Kuhn a vote of confidence by removing his temporary tag.

  Kuhn assumed that, as he had done with Clendenon and Harrelson, he could make Flood’s threatened lawsuit go away. Kuhn figured that after a few meetings with Flood or his counsel, Kuhn could persuade Flood to report to spring training with the Phillies. Kuhn, however, refused to make Flood a free agent. He was no more willing as commissioner to reduce the owners’ power to enforce the reserve clause than he had been as a member of the PRC from 1966 to 1968. Baseball’s anti-trust exemption, which he had worked most of his legal life to preserve, was not going down without a m
assive fight.

  Kuhn called Flood at home on the evening of December 30 and in a monotone voice read Flood the following response to his December 24 letter:

  Dear Curt:

  This will acknowledge your letter of December 24, 1969, which I found on returning to my office yesterday.

  I certainly agree with you that you, as a human being, are not a piece of property to be bought and sold. This is fundamental in our society and I think obvious. However, I cannot see its applicability to the situation at hand.

  You have entered into a current playing contract with the St. Louis club which has the same assignment provision as those in your annual Major League contracts since 1956. Your present contract has been assigned in accordance with its provisions by the St. Louis club to the Philadelphia club. The provisions of the playing contract have been negotiated over the years between the clubs and the players, most recently when the present Basic Agreement was negotiated two years ago between the clubs and the Players Association.

  If you have any specific objection to the propriety of the assignment, I would appreciate your specifying the objection. Under the circumstances, and pending any further information from you, I do not see what action I can take and cannot comply with the request contained in the second paragraph of your letter.

  I am pleased to see your statement that you desire to play baseball in 1970. I take it this puts to rest any thought, as reported earlier in the press, that you were considering retirement.

  Sincerely yours,

  Bowie K. Kuhn

  After Kuhn finished reading Flood the contents of the letter, Flood thanked the commissioner for his quick reply. Flood remarked that he would decide his next step in a day or two. The commissioner sent copies of the letter to Flood, Miller, Bing Devine, and John Quinn. He then released both letters to the press.

  Miller, however, had already beaten his adversary to the punch. On December 29, he sent a short memo to all the players informing them of Flood’s meeting with the player representatives and the union’s decision to pay for his legal counsel. The next day, the New York Times and New York Post ran stories revealing Flood’s plan to test the reserve clause in court with Goldberg as his lawyer and the Players Association’s financial backing. The national wires picked up the stories. Kuhn’s letter hit the paper the following day. Red Smith translated the commissioner’s response to mean: “Run along, sonny, you bother me.”

  Flood knew that Kuhn and the owners had not yet realized the depth of his resolve. “I think the owners are underestimating me,” Flood said January 2 before leaving for New York. “They think I’m just trying to get more money for next season. They’ll probably begin taking it serious around March.”

  CHAPTER SEVEN

  Four days after his decision to sue was made public, Flood went on national television and attacked the reserve clause in the starkest moral terms. He shocked and offended the American people during an interview with the man people loved to imitate but claimed to hate, Howard Cosell.

  A lawyer by trade, Jew by birth, and friend of outspoken black athletes by choice, Cosell ruled 1970s sports television. He spoke in a slow, nasal Brooklyn accent and offered an opinion about everything. Before Monday Night Football turned him into a legend, Cosell championed Muhammad Ali’s right to refuse to serve in the Vietnam War; he landed the first interview with Tommie Smith after his black-gloved salute at the 1968 Olympics in Mexico City; and he regarded Jim Brown, Bill Russell, and Jackie Robinson as close friends.

  Cosell, who saw Flood as continuing the fight for social change begun by Robinson and Ali, supported Flood at every turn. Their friendship began on the morning of January 3 when Flood arrived at ABC’s New York studios to tape his interview for a Wide World of Sports episode that aired later that day.

  Dressed in a royal blue suit and accompanied by Marvin Miller, Flood explained his reason for wanting to sue baseball: “I don’t think there is anything more damaging to a person’s ego as a human being than to be traded or bought and sold like a piece of property.”

  Never at a loss for words, Cosell followed up with the question on the mind of every thinking sports fan in America:

  “It’s been written, Curt, that you’re a man who makes $90,000 a year, which isn’t exactly slave wages. What’s your retort to that?”

  The camera zeroed in on Flood. He cocked his head toward Cosell and responded as if he were in Cosell’s living room rather than being beamed into America’s.

  “A well-paid slave,” Flood said, “is nonetheless a slave.”

  During the past four days, Flood had compared the reserve clause to being treated like cattle or property. This was the first time he had invoked slavery.

  Cosell asked Miller if it was possible to generate public support for a ballplayer making $90,000. “If people think slavery is all right as long as the money’s OK, then maybe we won’t,” Miller said.

  Several months later, other athletes quit their respective sports and expressed similar feelings of powerlessness. Stripped of his heavyweight title for refusing to fight in Vietnam, Muhammad Ali explained in May 1970 why he was “through” fighting in the ring as well. “We’re just like two slaves in that ring,” he said. “The masters get two of us big black slaves and let us fight it out while they bet, ‘My slave can whup your slave.’ That’s what I see when I see two black people fighting.” That same month, two 20-something white linebackers suddenly retired from the NFL. Chip Oliver left the Oakland Raiders to live in a Bay Area commune. “Pro football is a silly game,” he said. “It dehumanizes people. They’ve taken the players and made them into slabs of beef that can charge around and hit each other.” A few days later, Dave Meggyesy quit the St. Louis Cardinals. He moved to Berkeley, described his football experiences in his ground-breaking book, Out of Their League, and later worked for the NFL Players Association. “What is wrong with professional football is not that the players are not getting a decent wage,” Meggyesy wrote in October 1970, “but the dehumanizing conditions they are required to work under.”

  Flood was striving for the same thing as Ali, Oliver, and Meggyesy: human dignity. He wanted to feel like a person and not like an object. As a black man, he expressed those feelings in terms of slavery.

  Comparing baseball’s system of player ownership to slavery was not an original idea. Almost as soon as the owners had begun the practice of reserving five players per team in 1879, the players decried it as a form of slavery. The leading critic among the players was future Hall of Famer John Montgomery Ward. A white Columbia-educated lawyer and founder of the rival Players League in 1890, Ward wrote an article in August 1887 titled “Is the Base-Ball Player a Chattel?” “Like a fugitive-slave law,” Ward wrote less than 25 years removed from the Civil War, “the reserve-rule denies him a harbor or a livelihood, and carries him back, bound and shackled, to the club from which he attempted to escape.”

  In 1914, a New York judge rejected an attempt to enforce the reserve clause and prevent Chicago White Sox first baseman Hal Chase from jumping to Buffalo’s Federal League team. The judge described the reserve clause as a “system of servitude” based on “the purchase, sale, barter and exchange of the services of the baseball players—skilled laborers— without their consent. . . . The quasi peonage of baseball players under the operations of this plan and agreement is contrary to the spirit of American institutions, and is contrary to the spirit of the Constitution of the United States.”

  In his opinion in the 1949 Gardella case, Judge Jerome Frank wrote that the reserve clause “results in something resembling peonage of the baseball player” and “possesses 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.’ ” Frank foreshadowed Flood’s “well-paid slave” comment by writing that “if the players be regarded as quasi-peons, it is of no moment that they are well paid; only the to
talitarian-minded will believe that high pay excuses virtual slavery.”

  During the 1960s, other people compared the reserve clause and the plight of black athletes to slavery. No one, however, had done so in the context of suing America’s national pastime. The reaction to Flood’s comments reflected a backlash against the idealism of the 1960s. The public’s distaste for the perceived excesses of the civil rights and antiwar movements seemed to come to a head over a rich black athlete portraying himself as a slave. Flood’s “well-paid slave” remark turned America against him. The media seized on it. The public vilified him for it.

  Before returning to St. Louis after three days in New York, Flood and his St. Louis lawyer, Allan Zerman, met their new legal team. Goldberg had enlisted one of Paul, Weiss’s top litigation partners in Jay Topkis. The firm’s most senior antitrust lawyer, Topkis was also regarded as one of its best brief writers. They were joined by two recent Yale law graduates, Max Gitter and Bill Iverson.

  The major decisions facing Flood’s legal team included where and when to file a lawsuit and what type of lawsuit to file. They settled on federal district court in Manhattan, the home of the commissioner’s office. They gave themselves less than two weeks to do it. And they decided to file both a request for a preliminary injunction and a complaint.

  The purpose of a preliminary injunction was twofold: First, it asked the court to prevent Major League Baseball from enforcing Flood’s trade to the Phillies. This would allow Flood either to play for the Cardinals or to become a free agent. Either way, Flood could play baseball in 1970. Second, and more important, the injunction placed Flood’s case on the fast track for trial. A judge would hear from both sides before deciding whether to grant or deny the injunction. Although the chances of the court granting Flood an injunction were low because he was required to show an extremely high likelihood of winning his case, the injunction hearing moved up Flood’s case on the trial judge’s docket.