by Brad Snyder
He concluded the hearing by comparing his job to that of an umpire: “You do not ask that he shall never make a mistake or always agree with you or always support the home team. You want an umpire who calls them as he sees them. That, I promise you, I shall do.”
Flood was not amused by Judge Cooper’s comments. Nothing amused Flood these days. There had been an unreality to the first few months of his decision to quit the game and sue baseball. Aside from the added media and fan attention, November, December, and January had seemed like any other offseason. But by February’s preliminary injunctionhearing, the reality had begun to sink in that for the first time in 13 years he was not going to spring training with the St. Louis Cardinals. As part of his ongoing effort to undermine public support for Flood, Dick Young reported that the Phillies had increased their offer to $105,000 and that Flood was “having second thoughts about his slave-status.” Flood’s only thoughts were of not playing baseball in 1970 and of despair.
Flood’s world came crashing down. He had put his portrait sales on hold. His photography business was on the rocks. So was his relationship with Claire, the woman he had met in Denmark. His chances of opening a bar in Copenhagen crumbled along with it. Flood went from not being able to sleep at night to not being able to keep food down. The tension also took its toll on his good friend Marian Jorgensen, whose nose began to bleed so badly that she had to be hospitalized. Flood cried over how his lawsuit had affected both of their lives.
Needing money and a new challenge, Flood embarked on a career as an author. He collaborated on an article for Sport magazine’s March 1970 issue titled “Why I Am Challenging Baseball.” He also began working on a book, thanks to a phone call from an old Sally League adversary, Dave Oliphant. Oliphant had pitched against Flood as a member of the Macon Dodgers. Originally signed by the Yankees for $3,000, Oliphant, a Jew, experienced so much anti-Semitism from his minor league manager that his father purchased his contract for $2,000. The Yankees gave Oliphant’s family $1,000 back after he hooked on with the pitching-rich Dodgers. Oliphant never made the major leagues, but the unfairness of the reserve clause stuck with him as a Connecticut businessman. The president of a small publishing company and a consultant for Simon & Schuster, Oliphant set Flood up with Herbert Alexander, an editor at Simon & Schuster’s Trident Press.
Alexander found Flood a collaborator in Richard Carter. The author of several nonfiction books about science and medicine, Carter also wrote books about handicapping horses under the pseudonym Tom Ainslie. To disassociate them from gambling, Carter wrote under his given name with Flood. In late February, Carter arrived in St. Louis and stayed at the Holiday Inn on the publisher’s dime. After a few weeks, Alexander became alarmed because he could not reach Carter. Flood’s collaborator had neglected the book and immersed himself in the ballplayer’s lifestyle of drinking and partying, spending his nights at Flood’s favorite hangout, the Playboy Club in St. Louis. In mid-March, Alexander ordered Oliphant to pay Carter and Flood a surprise visit. “I read them the riot act,” Oliphant recalled.
“The book’s gone,” he told Flood. “You will have to return the money.”
He was even harsher with Carter, accusing him of acting like a drunk.
That same afternoon, Flood pulled two baseball gloves out of the trunk of his car. He and Oliphant played catch in the parking lot of Flood’s apartment building, the Executive House. Flood’s mood lightened. Later that afternoon, he and Oliphant put on an impromptu Ping-Pong exhibition at a nearby recreation center. For three hours, Flood was like a different person—upbeat and sober. Without baseball, drinking had come to dominate Flood’s life. He no longer had an incentive to remain sober each day. “Curt was addicted to alcohol,” Oliphant said. “There’s nothing new that I can tell you about that. It was his demon.”
Flood and Carter promised to change their ways and get to work on the book. After Oliphant returned home to Connecticut, they finished most of the book in about 30 days. “I really thought Curt was getting it turned around,” Oliphant said. The drinking, however, resumed. And the bad news kept coming.
Judge Cooper’s inevitable decision came down March 4, denying Flood’s request for a preliminary injunction. Cooper issued a scholarly 55-page decision replete with 71 footnotes. He wrote about every facet of the case and, despite only denying the request for an injunction, indicated how he was likely to decide a possible trial. Cooper’s order made no secret of his love of the game:
Baseball’s status in the life of the nation is so pervasive that it would not strain credulity to say the Court can take judicial notice that baseball is everybody’s business. To put it mildly and with restraint, it would be unfortunate indeed if a fine sport and profession, which brings surcease from daily travail and an escape from the ordinary to most inhabitants of this land, were to suffer in the least because of undue concentration by any one or any group on commercial or profit considerations. The game is on higher ground; it behooves every one to keep it there.
Cooper was not likely to find that baseball no longer deserved its antitrust exemption. Nor did anyone expect him to make such a ruling. Only the Supreme Court could reverse its own precedents. Cooper’s overriding concern seemed to be the legality of the reserve clause. In concluding his opinion, he acknowledged that “[f]or years professional ballplayers have chafed under the restrictions of baseball’s reserve system. . . . Many of their grievances appear justified.” Cooper said that the only way to resolve them was through a “full trial.” Nine days after the March 4 order, the chief judge of the district court permanently assigned the case to Cooper.
The day of Cooper’s decision, Flood released a statement announcing what he had known all along—he would not be playing baseball in 1970. Flood called Zerman, who lay in bed with the flu and a 102-degree temperature, and Zerman drafted and released a two-paragraph statement. “The failure to obtain a restraining order means I’ve lost my one chance to play ball this year,” Flood’s statement said. “I can only hope that after a full hearing on the merits that my position will have been vindicated and that my career will not have been ended by the time lost pursuing what I believe to be right.”
Flood told Jorgensen to put off numerous interview requests. The last thing he wanted to do was talk to the press. He told Carter that he did not want to lie to reporters that his photography business was booming (it wasn’t), that he was painting portraits (he certainly wasn’t), or that he could live without baseball (he couldn’t). Four days earlier, the St. Louis Cardinals’ position players had reported to spring training. Flood’s body— except for that brief afternoon playing catch with Oliphant—was going through baseball withdrawal. “I’m a baseball player and I’m supposed to play out my string,” Flood told Carter that day. “I’m supposed to be in Florida now, romping around and hitting the ball and cussing with Gibson and banging the chicks.”
Flood confronted the reality that his baseball career was over. He decided to make his conclusions public by instructing Jorgensen to arrange a press conference on the afternoon of March 5 at Zerman’s Clayton, Missouri, law office. That morning Flood took Claire to the airport for her noon flight back to Denmark. It was a permanent farewell. Flood drowned his sorrows at the airport bar and hid his pain behind a pair of big, dark sunglasses. At the press conference, he wore a double-breasted black sport jacket, light purple shirt, and plaid trousers. Before the assembled reporters, he removed his sunglasses and then exposed his soul. “It’s my life, and I’m on pins and needles,” he said.
Flood shared his belief that Cooper’s order meant the end of his baseball career. “Let’s face it, I’m 32 now and if the case does drag on for two years, I’d be 34. It would be difficult to come back. And besides, I don’t think I’ll get the opportunity to play again. As big as it is, base-ball is a closely knit unit. I doubt that even one of the 24 men controlling the game would touch me with a 10-foot pole. You can’t buck the Establishment.”
Flood said the Phillies
had offered him a salary “very close” to $100,000 but he had turned it down. “I’m not a millionaire but I’m not that bad off, either,” he said. “Sure, it’s tough to turn your back on $90,000 or $100,000 a year, but the reserve clause is not democratic and I intend to continue my fight.” He denied rumors that he was being compensated by the Players Association. He mentioned his new book contract with Simon & Schuster as proof that he would not starve. He tried to place Judge Cooper’s decision the previous day in perspective. “It’s just the first step in a long battle,” he said. “I do not intend to give up. People literally died for a cause such as mine, and I feel as strong as ever about my rights.”
Flood felt better after getting all that off his chest. His appetite returned. He found peace of mind with the idea of not playing baseball and turned his attention to the action in the courtroom.
The day after Judge Cooper’s decision, Mr. Justice Goldberg delivered an unexpected blow to Flood’s lawsuit. Goldberg gave a speech at Columbia University designed to revive his candidacy for governor. He had been meeting with New York politicians since February about a possible gubernatorial run while continuing to deny publicly any interest in electoral politics. Several former aides were trying to talk him into the race. Before Goldberg’s speech at Columbia, the New York Times ran a front-page story saying he was using it to test the political waters.
New York politics at that time was dominated by four parties: Conservative,Republican, Democratic, and Liberal. Liberals blasted Goldberg for his role in promulgating Johnson’s Vietnam War policy as UN ambassador. Despite Goldberg’s behind-the-scenes efforts to end the conflict, New York Post columnist Pete Hamill wrote that Goldberg should be tried as a war criminal. But the polls still showed that Goldberg held a sizable lead over incumbent Nelson Rockefeller. Goldberg went to Columbia, the heart of the antiwar student movement, to test out his message before 400 students and 17 radio and television stations. “I don’t want to contribute to the polarization of liberal forces in this country,” he told a student who asked about his possible candidacy. Goldberg talked about the Black Panthers and criticized the contempt convictions of the “Chicago Seven” by Judge Julius Hoffman. He attacked Governor Rockefeller but again denied any interest in being a candidate. “How can you revive a non-candidacy?” he asked.
In an interview at his office the day after his Columbia speech, Goldberg pointed to another reason why he was not running. “Meanwhile, goddamnit, I have to take care of Curt Flood!” he told the Village Voice. “We’ll be asking for an immediate trial—he ought to proceed at once. So that’s where I’ll be next week in New York!” At least one newspaper columnist suggested that the Flood case would propel Goldberg toward the 1972 Democratic presidential nomination. But Goldberg took on the Flood case—just as he had appealed William Sloane Coffin’s draft conspiracy conviction, fought for the Alaskan Indians, and co-chaired the Black Panther commission—because of his profound belief in social justice, not for political gain.
On March 19, Goldberg made it official: He was running for governor. He had allowed the New York politicians to seduce him into believing that he would be handed the Democratic gubernatorial nomination and easily defeat Rockefeller in November. His ego and ambition once again clouded sound personal judgment. He had also broken his promise to his friend Marvin Miller about not running for office.
Miller called Goldberg on March 19 and 20 from Sarasota, Florida. Miller was on his annual tour of spring training camps updating players about the labor negotiations, Flood’s lawsuit, and other union matters. He did not have the heart to criticize Goldberg for sacrificing his commitment to Flood’s case. Nor would it have done any good. He wanted to discuss the legal team’s next move.
Goldberg still planned on taking an active role in Flood’s lawsuit but turned over the day-to-day management of the case to his partner, Jay Topkis. Topkis had played a major role in Goldberg’s other important cases. When Coffin hired Goldberg to appeal his draft conspiracy conviction, Goldberg told him: “Topkis will do all the work. He’s as good as I am.”
At this stage in their legal careers, Topkis was better. He was an anti-trust expert, one of the firm’s best brief writers, and quick on his feet. Feared by associates and respected by opposing counsel, he was one of the few partners who called Goldberg “Arthur.” Goldberg’s decision to run for governor delighted Topkis. It meant that he would get to try the bulk of Flood’s case without Goldberg looking over his shoulder.
For Topkis, Flood’s case was personal. As a Yale law student in 1949, he wrote an essay for Professor Fred Rodell’s expository legal writing class about the Gardella case. Rodell sent Topkis’s essay to Red Smith, who liked it so much that he ran part of it as one of his columns in the New York Herald Tribune. For Topkis, who had grown up in New York City reading Smith in the Herald Tribune, it was a dream come true. Rodell also recommended Topkis for a postgraduate clerkship with the most outspoken voice in Gardella, Judge Jerome Frank. While clerking for Frank, Topkis arranged a lunch with Smith and the judge. Topkis also turned his essay into an article for the Yale Law Journal, titled “Monopoly in Professional Sports,” which called for an end to baseball’s anti-trust exemption. Flood’s case gave Topkis the chance to vindicate his judge’s Gardella opinion, his literary idol’s columns, and his own belief that Justice Holmes had gotten it wrong in Federal Baseball.
Before handing over the reins to Topkis, Goldberg won a critical victory. At a March 24 closed hearing in his chambers, Cooper announced to lawyers from both sides that he was inclined to grant an early trial. Goldberg said all the right things to make it happen, reminding Cooper what was at stake. “It is of great importance to the industry and of great importance to this man,” Goldberg said. “The season is starting April 6th. He is not playing ball.” Goldberg agreed not to file written responses to any of the owners’ motions and not to slow the process by disputing any of the case’s essential facts. “We are ready to go to trial,” Goldberg said. “We will take one day. I might as well tell you that. Or perhaps part of a day. We do not intend to encumber this record with non-essential matters.”
The owners’ lawyers, led by Lou Carroll and Paul Porter, said anything to avoid any trial at all, much less an early one. Carroll said the Phillies wanted to speak with Flood about joining their team.
“Mr. Flood will not play for Philadelphia, whether I advised him or not,” Goldberg replied. He gave the Phillies permission to contact Flood. “But I can tell you what his answer will be: His answer will be no.”
Paul Porter added: “Because speaking for the Commissioner, and I think everybody in baseball, they would like to have this boy back in baseball where he belongs.”
Goldberg corrected Porter’s insulting characterization of the 32-year-old Flood: “Flood is a mature man. He knows his mind. He made it up before he came to see me. I interrogated him at length as to the consequences and difficulties about litigation, possible duration, all of these I went through. He is not uninformed. I saw to it that he was informed in this issue. He knows precisely what he is doing and the evidence of that will be apparent when this proposal is renewed. He submitted another offer, which was to play in St. Louis without prejudice.”
Carroll reminded Cooper that preparing for a trial was not as simple for the owners as it was for Flood. After a brief off-the-record discussion, the lawyers agreed to reconvene at Cooper’s chambers on March 31 to discuss potential trial dates.
Cooper’s decision to have an early trial was astounding. He agreed that there was no dispute about the facts of Flood’s case and therefore skipped almost all of the pretrial fact-finding process known as discovery. In a modern civil action, discovery could take weeks, months, or even years. Cooper, however, saw no need for the production of a massive collection of documents. Nor did he allow the pretrial interrogation of potential witnesses known as depositions. One reason may have been that document productions and depositions take place largely outside the purview of the j
udge. Cooper was determined to remain at center stage.
A week later in Cooper’s chambers, the owners argued that Cooper had no choice but to dismiss the case because of baseball’s antitrust immunity per Toolson. Mark Hughes pressed Cooper to rule on the motion to dismiss Flood’s lawsuit. Cooper refused to decide the motion, because that way he could ensure that the case would go to trial. If he granted the motion, the case would be dismissed. If he denied the motion, he probably would have been reversed on appeal because of Federal Baseball and Toolson.
The question returned not to if there would be a trial, but when. The owners wanted to push it back to September. But, realizing that Cooper would not go along with that, they argued for no sooner than early June. They predicted that the defendants’ case could take two weeks. Paul Porter wondered, if Flood was not willing to play this season, “what the rush is on this.” Lou Carroll put it even more harshly: “Mr. Flood has waited fourteen years to assert a principle, which, if accepted, would destroy a structure that has existed for over a hundred years.”
Goldberg wanted to begin the trial immediately. “The rush is a simple rush,” he said. “The rights of an individual are at stake. With due respect, the rights of that individual are as important to me as the rights of twenty-four club owners. . . . Our posture is simple: It is an illegal transfer. He will not submit to illegality. He has a right to take that posture. He may have to pay a heavy price for it. I think he is being made to pay a heavy price by protracted litigation.”
As he so often did in these pretrial conferences, Goldberg injected his personal experiences on the Supreme Court and as a candidate for governor into the discussion. In doing so, he reiterated his commitment to litigating Flood’s case: “I was told by my political managers that I ought to be in Grossinger’s, shaking hands with adversaries. I am not there. I represent a client, and that takes priority over everything, and I have an engagement with a Judge. They will have to get along without me, whatever the consequences are. Now, we want an early trial, and by an early trial we mean an early trial.”
