A Well-Paid Slave

by Brad Snyder

  Flood’s complaint declared war on the reserve clause. It named commissioner Bowie Kuhn, league presidents Chub Feeney and Joe Cronin, and the 24 major league teams as defendants. The lawsuit claimed that the reserve clause violated two federal antitrust laws; the state antitrust laws of New York, California, and several other states; and the common law. It also included separate antitrust claims against Anheuser-Busch for allegedly selling only its beer at St. Louis Cardinals games and against CBS because its ownership of the New York Yankees allegedly interfered with the selling of baseball’s television rights. Finally, it claimed that the reserve clause violated federal statutes against “peonage and involuntary servitude” as well as the 13th Amendment’s prohibition against slavery.

  At least one member of Flood’s legal team believed that by invoking peonage, involuntary servitude, and the 13th Amendment, they were fanning the racial flames that threatened to engulf Flood’s case. The goal of Flood’s lawsuit was to persuade the Supreme Court of the United States that baseball did not warrant an exemption from the antitrust laws and that the reserve clause violated those laws. The goal was not to prove that Curt Flood was a $90,000 slave. Goldberg, however, insisted on the 13th Amendment and peonage claims. The 13th Amendment claim added a constitutional dimension to the case and did not depend on baseball’s status under the antitrust laws. By invoking slavery, peonage, and involuntary servitude, the complaint highlighted the injustice and immorality of the current system.

  Flood’s complaint sought $1 million in damages. If Flood won at trial and proved all his damages, federal antitrust law would automatically triple his damages award to $3 million. The money, however, was an afterthought. Zerman and Max Gitter estimated the $1 million figure based on Flood’s possible future earnings. Flood neither knew nor cared about the amount of damages. Miller told him repeatedly that he would never see any money. Flood knew that he would never recover his 1970 salary of at least $90,000. “Sometimes money’s not that important,” Flood told the St. Louis Globe-Democrat on January 6. “I know it sounds corny, but that’s the way I feel.”

  Zerman and Flood returned to New York City in mid-January to sign the complaint and an affidavit accompanying the injunction request, respectively. On January 16, civil action number 70 Civ. 202, Curtis C. Flood v. Bowie K. Kuhn, et al., was filed in the clerk’s office of the United States District Court for the Southern District of New York. The 17-page complaint also contained five exhibits: the Uniform Player Contract signed by Flood and the Cardinals, the notice of transfer of Flood’s contract to the Phillies and accompanying letter from Bing Devine, and the letters exchanged between Flood and Kuhn. The 35-page injunction request was accompanied by affidavits signed by Flood and Miller asking the court to nullify Flood’s trade to the Phillies.

  The motions judge on duty that day, Judge Dudley B. Bonsal, ordered the team owners to appear in his courtroom on January 20 to respond to Flood’s request for a preliminary injunction. The owners received a copy of Flood’s complaint and Judge Bonsal’s order later that afternoon while seated across the negotiating table from Miller and several players. Lou Carroll, who had resumed his role as National League counsel, exploded. He leaped up from the table and accused Miller of undermining their efforts to negotiate a new labor agreement and of violating the old one. Miller calmly replied that if the owners were prepared to modify the reserve clause, then Flood would drop his lawsuit.

  “I just wanted to raise the question,” Carroll responded.

  Miller realized that Carroll’s anger had been more calculated than real. Carroll was merely testing out legal arguments at the negotiating table.

  While Miller sparred with Lou Carroll, Flood sat in a large paisley armchair in the lobby of the Warwick Hotel and answered reporters’ questions. He waved at passersby as photographers snapped pictures of him. Dressed in a dark double-breasted herringbone suit and a white shirt with cuffs, he wore a World Series ring and a gold watch given to him by a female fan on one hand and a gold pinky ring on the other. He looked like visiting royalty sitting on a throne.

  Flood was the talk of the sports world. “Baseball Is Sued Under Trust Law” declared the front page of the next day’s New York Times. Leonard Koppett wrote the story. Inside the paper, George Vecsey wrote a profile of Flood accompanied by a photo of Flood with the portrait of Dr. King. Nearly every newspaper in the country ran at least one story about Flood’s lawsuit.

  The day after Flood filed his lawsuit, the owners issued a two-page press release claiming that Flood’s lawsuit was trying to destroy baseball. The statement was released under the names of American League president Joe Cronin and National League president Chub Feeney. Cronin was interviewed by telephone on Howard Cosell’s January 3 show and told the television audience that “the reserve clause is part of baseball. It has stood the test of time.” He knew from experience how it worked. As the player-manager of the Washington Senators in 1934, Cronin had been sold by his uncle-in-law, Senators owner Clark Griffith, to the Boston Red Sox for $225,000. Cronin’s and Feeney’s statement predicted “chaotic results” if Flood’s lawsuit was successful. “Without the reserve clause,” the statement said, “the wealthier clubs could sign an unbeatable team of all-stars, totally destroying league competition.” The poorer, weaker teams would fold. The scouting and minor league system would no longer be profitable. Trades would be “impossible” if player consent were required. “Professional baseball,” the statement concluded, “would simply cease to exist.”

  The opening of Cronin’s and Feeney’s statement emphasized the “well-paid” part of Flood’s “well-paid slave” remark, characterizing him as a “highly paid star” who had “contributed much to and obtained much from baseball.” The reserve clause, the statement said, “permitted players such as Curt Flood to reap rich personal rewards.” Reiterating Lou Carroll’s comments at the negotiating session, Cronin and Feeney also accused the Players Association of violating the labor agreement by not using its best efforts to enforce the Uniform Player Contract. Two days later, Miller charged Cronin and Feeney with issuing a “phony” statement. During labor negotiations in 1968, the players had asserted that the reserve clause was illegal and therefore the players could not use their best efforts to honor an illegal provision.

  Cronin’s and Feeney’s comments polarized the public debate. The back page of the New York Daily News proclaimed: “Curt Win Kills Baseball.” In the New York Times, Leonard Koppett accused both sides of overstatement: the owners for claiming that the only alternative to the reserve clause was “chaos”; the players for framing the debate in terms of “freedom” and “slavery.”

  Kuhn remained conspicuously above the fray. The commissioner sent Cronin and Feeney to do his dirty work for him. It was Kuhn who had asked Cronin to participate on Cosell’s January 3 program, declining to appear himself because he “occupie[d] a judicial position.” Kuhn still believed that he could swoop down like his hero, Judge Landis, and resolve at least part, if not all, of this mess.

  In January, Kuhn and his lawyer, Paul Porter, met with Goldberg, Topkis, and Moss for the first of several times to try to resolve Flood’s lawsuit. Goldberg spoke on Flood’s behalf. Kuhn spoke for the owners. Goldberg insisted that Flood should have the right to negotiate with any team. Kuhn said Flood’s contract did not permit it. Goldberg countered that the contract was illegal. “I could not communicate with Goldberg, whose starchy, formalistic assertions left little room for even polite conversation,” Kuhn later wrote. “I almost wished everybody would go away and let me talk to Miller. Mr. Justice Goldberg sailed off, leaving me to wonder if he had not somehow managed to top even my well-honed reputation for pomposity.”

  Mr. Justice Goldberg was not about to let some midlevel former Wall Street partner back his client into a legal corner. At one meeting, Kuhn told Goldberg that Flood could continue to play while suing base-ball. Goldberg replied that if Flood played, he would not have suffered any harm and his lawsuit would be moot.<
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  “You mean, Mr. Justice, that you are advising Flood to not play?” Kuhn asked.

  “If you want to do any quoting,” Goldberg quickly replied, “you had better be accurate in what you quote. The decision about whether Mr. Flood will play will be made by Mr. Flood. I have given him legal advice as to the impact of his decision. The decision is his.”

  On January 8, Phillies general manager John Quinn sent Flood a contract for $90,000. Flood announced that he would not sign it. Quinn still believed that Flood would play baseball in 1970, just not for Philadelphia.

  “Is it true that negotiations are out—that the suit will proceed regardless?” Kuhn asked Goldberg.

  “You have a terrible habit of misquoting,” Goldberg said. “It is my understanding that if appropriate modifications can be made through negotiation, they would satisfy Curt Flood. Therefore, if you want to carry out your legal right to negotiate, please do so.”

  In one of his few public comments about the case, Kuhn declared at the Phillies’ January 7 Newsy Notes Club meeting (at which the Phillies had intended to announce that they had signed Flood) that Flood’s lawsuit was a tactical mistake. Kuhn said if he were advising the Players Association, he would not file a lawsuit that could jeopardize ongoing negotiations about the reserve clause as part of the new labor agreement.

  A labor negotiation session a few weeks earlier in New York City had revealed the ridiculousness of this logic. Miller and Moss met with the owners’ lead negotiator, John Gaherin; Cronin; Feeney; American League counsel Sandy Hadden; and Lou Carroll, the National League counsel. Four players also were seated around the negotiating table: Joe Torre of the Cardinals, Steve Blass of the Pirates, Ed Kranepool of the Mets, and Jim Bouton of the Astros. A few months before his book Ball Four turned the baseball establishment on its ear, Bouton made waves during the late-December negotiation session.

  Bouton asked Lou Carroll if the players could be declared free agents at Social Security retirement age.

  “What age do you mean?” Carroll asked.

  “Age 65,” Bouton said.

  “No,” Carroll replied, “because then you would get your foot in the door.” There was some subsequent debate about whether Carroll was joking. Miller said he was not, because Gaherin reiterated Carroll’s concern that the players would use that concession to “disturb the entire system.” The only way the players were going to get the owners to modify the reserve clause was for someone to take them to court.

  Neither Flood nor Kuhn showed up for the first hearing in the case. On January 20, Judge Bonsal granted the owners a two-week delay to respond to Flood’s request for an injunction. The lawyer for the Phillies told Judge Bonsal that they would allow Flood to report to spring training without prejudicing his lawsuit. “That’s exactly what he doesn’t want to do,” Topkis replied. “He lives in St. Louis, has a business there and doesn’t want to be treated like cattle.”

  That same night, Flood and Cosell appeared together on The Dick Cavett Show. Zerman, who declined to appear on the program, watched in the wings as Flood told another national television audience that the Phillies had offered him “at least $100,000” to play for them in 1970. And there was no way that he was going to take it.

  Judge Bonsal’s two-week delay gave additional time for the media, players, and fans to take sides about Flood’s lawsuit. The owners’ “base-ball will cease to exist” rhetoric carried the day over Flood’s “well-paid slave” comment by a wide margin—especially among the country’s base-ball writers.

  During the 1960s and early 1970s, members of the press were firmly on the side of management. They rode on team buses and planes, reveled in the hometown team’s victories, and bonded with owners and general managers. They distrusted Marvin Miller and the Players Association. They could not get over the fact that Flood made $90,000 in 1969. And they often wrote columns about Flood that lacked any racial sensitivity or understanding.

  Flood’s most incisive and persistent critic was New York Daily News columnist Dick Young. Young had dubbed the owners “the Lords of Baseball,” but he had been decidedly promanagement ever since. He took shots at Miller and the Players Association, portrayed Flood as Miller’s puppet, and denigrated Flood’s slavery comparison. “Curt Flood isn’t helping his case with that tired slavery line,” Young wrote. “Any guy who has to cut short his six-months vacation in Scandanavia [sic] to fly here and file his suit doesn’t paint a bad picture for the Plantation Owners’ Association.”

  UPI’s Milton Richman rejected any comparison between Flood and cattle. “That’s where I stop feeling for Flood,” Richman wrote. “I know we’re in the middle of paralyzing inflation but $90,000 for one head of cattle still staggers the imagination. . . . I don’t believe his rights as a human being have been abrogated or annulled in any way by baseball, particularly when I think about the various businesses he has been able to operate both in this country and in Denmark because of the money he earned in the game.” Bill Conlin of the Philadelphia Daily News cracked: “Flood may become the first petitioning slave in the history of the Republic with a Swiss bank account.”

  The leader of the St. Louis press corps, Post-Dispatch columnist Bob Broeg, epitomized the conservative breed of baseball writers. Broeg bled Cardinal red. He had begun his career working in the team’s public relations department in 1939 with future general manager Bing Devine. Before the seventh game of the 1967 World Series in Boston, he had dashed off the team bus in order to buy famished Cardinals starter Bob Gibson two ham-and-egg sandwiches. And he adored Cardinals owner Gussie Busch. Broeg had bristled in 1969 when Flood demanded $100,000, and “not $99,999.” He viewed Flood’s salary demands as betrayal of a team owner who had been so good to his players.

  Broeg contended that Flood’s lawsuit was “not a matter of principle, but of principal.” He pointed to the $3 million in damages sought by Flood’s lawsuit as proof, ignoring the reality that Flood had turned down a six-figure salary with the Phillies and never expected a dime from his lawsuit. All Flood wanted to do was to stay in St. Louis and play for the Cardinals. Broeg brushed aside Flood’s hometown allegiance; the St. Louis sports columnist could not get past Flood’s big salary. “If the legality of the baseball reserve clause were being contested by a player less affluent than Curt Flood,” Broeg wrote, “the sympathy would be considerably greater.” He urged his readers not to “gag on” the idea that Flood and his fellow ballplayers were “the poor victims of ‘peonage and servitude.’ ”

  St. Louis Globe-Democrat sports editor Bob Burnes infuriated Flood even more than Broeg. Burnes made no secret in his columns that he supported management’s right to the reserve clause, but he also believed that Flood’s lawsuit was “an absolutely necessary step.” On his radio show and in print, Burnes made it seem as if he knew Flood “inside and out.” In reality, however, Burnes had never even spoken to Flood. Flood had one of his friends call Burnes’s radio show and ask him why Burnes had never interviewed Flood during his 12 seasons with the Cardinals. Burnes said Flood had never been available for an interview, yet continued to write and talk as if he knew him.

  A few sportswriters embraced Flood’s slavery argument. Red Smith wrote more supportive columns about Flood than anyone else in the business. As a columnist for the New York Herald Tribune, Smith captivated readers with his wit and prose. He was a favorite of Ernest Hemingway’s. In his 1950 novel, Across the River and into the Trees, Hemingway wrote of one of his characters: “He was reading Red Smith, and he liked it very much.” Smith despised the reserve clause, blasting it as early as 1938 and referring to it in a 1957 column as “the Slave Trade.” In those days, however, Smith had not been as enlightened about racial issues. He remained silent while other white columnists advocated the integration of baseball. He later insisted on referring to Muhammad Ali as Cassius Clay in columns that Robert Lipsyte of the New York Times described as “borderline racist.” But in November 1968, after the death of his first wife, Smith married a young
er woman with counterculture teenage children. Smith’s young family helped transform him into a racial and social progressive.

  The 64-year-old Smith combined his new philosophical outlook and long-standing antipathy for the reserve clause in writing about Flood. In 1970, his syndicated columns ran in many of the country’s largest newspapers. He introduced readers to Judge Frank’s opinion in Gardella, blasted his favorite punching bag, Bowie Kuhn, and articulated Flood’s point of view with unmatched eloquence. “Curtis Charles Flood is a man of character and self-respect,” Smith wrote. “Being black, he is more sensitive than most white players about the institution of slavery as it exists in professional baseball.” Smith later advised the trial judge not to be fooled by the defense that “because Flood earned $90,000 a year playing center field for the St. Louis Cardinals, he could not be a slave. . . . you can’t change muskrat to mink just by changing the prices.”

  Los Angeles Times syndicated sports columnist Jim Murray agreed with Smith, describing the reserve clause as “just a fancy name for slavery. The only thing it doesn’t let the owners do is flog their help.” Although he often wrote with his tongue firmly in his cheek, Murray sided with Flood. “It is pretty late in history for the slave mart anyway,” Murray wrote. “If a Curt Flood wants to remain in St. Louis, baseball (and society) should let him.”

  Smith and Murray represented exceptions to the rule. There were a few others: Koppett and Lipsyte of the New York Times, Milton Gross of the New York Post, Gene Ward of the New York Daily News, and former NFL star-turned-broadcaster Kyle Rote and, of course, Cosell on television. But the bulk of the white media blasted Flood’s “well-paid slave” comment and backed the owners’ contention that baseball needed the reserve system to survive. In an editorial titled “A Threat to Baseball,” the Houston Chronicle concluded: “We think Flood and the players association are making a mistake which can backfire against the players themselves and can seriously cripple baseball.”