A Well-Paid Slave

by Brad Snyder

  The next day at Grossinger’s, a Catskills resort, Goldberg won the State Democratic Committee’s designation for governor—but not without incident. Representative Shirley Chisholm (D-NY) organized a walkout of some delegates and attacked Goldberg as a candidate of the party bosses. After he won, Goldberg renounced the party’s endorsement to fend off Chisholm’s charges of backroom party politics and instead chose to get on the ballot by obtaining the requisite number of signatures. The crowd booed and hissed at him as he made the announcement.

  Goldberg had fared far better the previous day in front of Judge Cooper. Cooper set Flood’s trial for May 18. At Hughes’s request, Cooper later pushed the start of the trial back a day.

  Cooper’s decision ignored a fundamental rule—only the Supreme Court could reverse its own decisions. He was bound by Federal Baseball and Toolson, which compelled him to dismiss Flood’s lawsuit because of baseball’s antitrust exemption. If this were a case about widgets, any federal judge in America would have granted the owners’ motion to dismiss. But it was not about widgets; it was about baseball. And this was not just any federal judge; it was Irving Ben Cooper.

  At best, Cooper ignored two controlling Supreme Court precedents because he wanted to give the court of appeals and the Supreme Court a complete factual record about the reserve clause’s legality. At worst, he wanted to preside over a case about baseball and to show the world that he was a competent federal judge. During pretrial hearings, Cooper sought to dispell such notions. “I think it would be dead wrong if this judge or any judge sought in this trial the publicity angle,” he said on March 31.

  Bowie Kuhn was working behind the scenes to avoid a trial. As the commissioner and protector of the integrity of the game, he saw Flood’s lawsuit casting a pall over the 1970 season. Kuhn had already struck out once that spring in an attempt to protect the game’s integrity. Detroit Tigers pitcher Denny McLain, winner of the American League’s last two Cy Young Awards, had lost $5,700 investing in a Flint, Michigan, bookmaking operation. After two meetings with McLain, Kuhn suspended the ace pitcher until July 1. He contended that McLain had been duped into the investment and had not shared in the profits. The light sentence showed how beholden Kuhn was to the owners (in this case the owner of the Detroit Tigers). Kuhn seemed to take challenges to the reserve clause more seriously than he did gambling. Pete Axthelm of Newsweek called McLain’s suspension a “farce.” “The ‘Alice in Wonderland’ quality of the ruling,” Axthelm wrote, “only becomes stranger when contrasted with the case of Flood, who must sacrifice his $90,000 salary entirely in order to test the legality of a clause in his contract.”

  Kuhn wanted Flood back in uniform. He thought he could work the same magic he had worked with the retirement threats of Donn Clendenon and Ken Harrelson. The key was getting Flood to meet with him.

  The commissioner sent his special assistant, Monte Irvin, as an emissary. An infielder with the Newark Eagles in the Negro National League and an outfielder with the New York Giants, Irvin was a northern-bred, college-educated World War II veteran. His background and ability had placed him high on Branch Rickey’s list of candidates to integrate the game. Unlike Jackie Robinson, however, Irvin was a company man, not a boat rocker. After their playing careers, Irvin and Robinson clashed at a banquet honoring Montclair, New Jersey, high school baseball star Earl Williams. “I don’t owe baseball anything,” Robinson told the audience, “and baseball doesn’t owe me anything.” Irvin took the microphone and tried to smooth things over. “Jackie was great for baseball,” Irvin said, “and baseball was great for Jackie.” The incident cooled relations between the two men. Irvin’s service in the commissioner’s office aided his 1973 induction into the Baseball Hall of Fame.

  It was Irvin’s job to get Flood to meet with Kuhn. Irvin called Flood’s St. Louis apartment several times in mid- to late March. The first time he told Marian that Kuhn wanted to arrange a private meeting with Flood. Two days later, Irvin called again and spoke directly with Flood. The commissioner offered to fly Flood out to Los Angeles, where the Dodgers were holding a March 28 benefit game for the King Center, a memorial to Martin Luther King in Atlanta, for a private meeting. The commissioner wanted to talk with Flood and to listen to his concerns. Irvin promised that there would be no publicity.

  “Damnit, Monte, the last guy who saw the Commissioner for an informal chat wound up getting a boot in the ass,” Flood said, alluding to McLain.

  “He’d have been in more trouble if he hadn’t come in,” Irvin replied, which Flood interpreted as a “threat.”

  Flood declined Irvin’s offer.

  “Listen, Curt, at least you can meet with the commissioner of base-ball,” Irvin said.

  “I don’t have anything to say to him,” Flood replied.

  “I think you’re making a mistake, Curt,” Irvin said. “A lot of good can come from this. . . . Maybe after your career you can get a job in the commissioner’s office.”

  Flood wasn’t buying it.

  Irvin was “disgusted.” He thought he had established a rapport with Flood after meeting him through Bill White. Irvin acknowledged that arranging a meeting between Flood and Kuhn would have been “a feather in my cap.” But most important, Irvin could not understand why Flood did not have enough respect for the commissioner to at least meet with him. “I thought he made a terrible mistake in not meeting with him. I lost my respect for him,” Irvin recalled. “I didn’t understand how he could be so stupid.”

  Still, Irvin would not give up. He called Flood’s apartment again and spoke with Marian. Irvin, like most people, assumed that Flood “was in love with that secretary.” He told her this was Flood’s last chance to meet the commissioner in Los Angeles. She questioned Kuhn’s motives.

  “The commissioner has worked out a deal,” Irvin said. “Curt can play for any National League club of his choice without jeopardizing the litigation.”

  “Oh, come on, Monte!” Marian replied. “You know the commissioner can’t change the rules of the Federal judiciary. If Curt plays ball, his case becomes moot. Now tell me what the Commissioner really wants.”

  “He’s a very compassionate man,” Irvin said. “He just wants everybody to be happy.”

  League lawyers had indeed agreed to arrange a trade for Flood to the team of his choice. Flood rejected the offer because it would have meant the end of his lawsuit. As Goldberg had explained to him, even a pretrial agreement between opposing parties not to prejudice ongoing litigation could not prevent a federal judge from declaring the lawsuit moot. The dispute must be real, not hypothetical; one side must have been harmed. To challenge his trade to the Phillies in court, Flood had to show harm by sitting out the season.

  The March 28 Martin Luther King benefit game came and went, but Kuhn’s efforts continued. On April 2, the commissioner sent Flood the following telegram:

  AM DISAPPOINTED YOU DECLINED MY INVITATION FOR A PERSONAL CONFERENCE IN LOS ANGELES ON FRIDAY. I DESIRED AN OPPORTUNITY TO DISCUSS WITH YOU PERSONALLY YOUR BASEBALL CAREER WITHOUT PREJUDICE TO THE BASIC ISSUES INVOLVED IN THE PENDING LITIGATION. MY COUNSEL HAS ASCERTAINED FROM YOUR COUNSEL THAT THE LATTER HAD NO OBJECTIONS TO SUCH A CONFERENCE WITH THE EXPLICIT CONDITION THAT HE WAS NOT RECOMMENDING THAT YOU ASSENT OR DECLINE. THIS IS TO ADVISE YOU THAT IF YOU RECONSIDER I WILL CONTINUE TO BE AVAILABLE.

  BOWIE KUHN

  Kuhn’s insistence on meeting with Flood helped the commissioner perpetuate the myth that he was an impartial judge rather than the owners’ man. It also reinforced the idea that Flood was Miller’s puppet. If Kuhn could just get Flood away from Miller and Goldberg, then Kuhn could talk some sense into Flood. As the commissioner and a fan, Kuhn also wanted one of the game’s better players on the field. That’s why he had talked Clendenon and Harrelson out of retirement. Kuhn did not realize that Flood was nothing like Clendenon or Harrelson. “I can’t be bought,” Flood told players and reporters many times. The owners soon discovered that Flood meant it.

  Kuhn
had more success resolving the dispute between the Cardinals and the Phillies. For months, the two teams had been unable to agree on additional compensation as part of the Flood-McCarver-Allen trade. Kuhn spoke with Cardinals executives Bing Devine and Dick Meyer and Phillies general manager John Quinn. Even owners Gussie Busch and Bob Carpenter got involved. The Phillies expressed interest in Cardinals third baseman Mike Shannon. Shannon, however, had contracted a career-ending kidney disease. Instead, the Cardinals sent the Phillies a list of players to choose from—not a single major leaguer was on the list. The Phillies spent all spring training scouting the Cardinals’ minor leaguers. On April 8, the Phillies selected outfielder Guillermo “Willie” Montanez. They had until August 31 to select another Cardinals minor leaguer who was not on St. Louis’s 40-man roster in April or who did not join the Cardinals’ active roster later that season. The Flood trade was almost complete.

  The Phillies selected Montanez only after going through another month of formalities of trying to get Flood into a Philadelphia uniform. Flood had never gone through with his retirement plans by filing the proper paperwork with the commissioner’s office, so the Phillies were required either to renew his contract or make him a free agent. On March 4, the Phillies sent Flood a notice automatically renewing his contract at $90,000 under paragraph 10(a) of the Uniform Player Contract. After Flood failed to report to spring training with the Phillies by March 15, Quinn requested Kuhn’s permission to place Flood on the restricted list. This prevented Flood from counting against the Phillies’ roster and reassured the Cardinals that Flood would not be playing for another team. Part of the reason Kuhn had contacted Flood through Irvin and by telegram was to avoid putting him on the restricted list. On April 7, the day before they selected Montanez, Kuhn granted the Phillies’ request and placed Flood on the restricted list.

  The restricted list placed Flood in close company with some of the game’s most notorious characters. Under the Major League Rules, “[a] player on the Restricted List shall not be eligible to play for any Major League or National Association Club until he is reinstated.” Although Flood or the Phillies could request his immediate reinstatement if he decided to report to Philadelphia, he was technically banned from the major and minor leagues. The restricted list is a close cousin to the ineligible list—home to Shoeless Joe Jackson and the 1919 Black Sox as well as other players banned from the game for gambling and other misconduct. Danny Gardella (for jumping to the Mexican League) and George Toolson (for refusing to report to Binghamton) also found themselves on the ineligible list. Flood was now associated with players who had sullied the game’s image or bucked the system.

  For refusing to report to Philadelphia, Flood had been blacklisted from professional baseball. As the major league season started without him on April 6, he sat at home drinking vodka martinis, working with Carter on his book, and waiting for his trial.

  On April 23, Cooper issued a 19-page opinion formally refusing to rule on the owners’ motion to dismiss Flood’s federal, state, and common law antitrust claims, as well as his claims of slavery and involuntary servitude. Cooper dismissed the claims against Anheuser-Busch and CBS. He had no other choice because Goldberg had decided not to contest the companies’ opposition motions. Flood’s legal team sacrificed those claims, which were weak and tangential to Flood’s case against the reserve clause, so the rest of the lawsuit could proceed to trial.

  In hindsight, if Cooper had relied on Toolson and dismissed the entire case, Flood could have immediately appealed Cooper’s decision to the court of appeals and then to the Supreme Court. A dismissal would have sped up the appeals process and increased Flood’s chances of returning to the major leagues. Flood’s lawyers, however, wanted to develop the facts at trial about the evils of the reserve clause. Cooper gave them their opportunity.

  CHAPTER NINE

  On May 19, Curt Flood walked into room 1505 of the federal court house at Foley Square in lower Manhattan. For the next three weeks, he made baseball history, not in the National League ballparks he had once played in, but in a small courtroom with high ceilings, polished wooden tables and benches, and green leather chairs. He received what Danny Gardella, George Toolson, or any other disgruntled professional baseball player since Federal Baseball had failed to obtain—a full trial about the legality of the reserve clause.

  Flood and his trial team—Goldberg, Topkis, Zerman, Miller, and Moss—sat at a long rectangular table directly in front of the court reporter and the judge’s bench. To their left the nine lawyers for the commissioner and the owners—Mark Hughes, Lou Carroll, Lou Hoynes, Sandy Hadden, Victor Kramer, George Leisure, and three young associates—sat at a similar table close to the jury box. Kuhn sat in the first row of wooden benches behind his counsel’s table with league presidents Cronin and Feeney on each side of him.

  From a door to his chambers on the right side of the courtroom, Judge Cooper walked to his bench in his black judicial robe. Short, squinty-eyed, and bald with white hair on the sides of his head and a white mustache, Cooper spoke with a British accent from his youth and presided over the court on a high bench. The court clerk and the stenographers sat in a well below him. The witnesses testified in a box below him to his right. This was a bench trial, so there was no jury.

  Members of the press sat in the jury box, two rows of six green leather chairs that lined the front left of the courtroom and were enclosed by a semicircular railing. Other journalists sat on the crowded rows of wooden benches, which were separated by an aisle and stretched from behind the counsel tables to the back of the courtroom. They scrambled for seats with lawyers, court watchers, and the public. Sports columnists came in for the first day of the trial from Baltimore and Philadelphia. The New York media was out in full force. New York Times sportswriter Leonard Koppett, syndicated columnist Red Smith, and ABC’s Howard Cosell were regulars.

  Cosell sat in the back right of the jury box where the railing opened behind Douglas Robinson, a young Arnold & Porter associate seated at the far end of the defense table. “Howard Cosell’s big beak would be hanging over my shoulder,” Robinson recalled. “He would often tap me on the shoulder and ask me questions.” Cosell smoked his trademark cigars in the hallway during courtroom breaks. “A great day for the scribes,” Cosell kept repeating that first day. “A great day for the scribes.”

  During those three weeks, Flood and the owners tried two cases in Cooper’s courtroom: one in the court of law and the other in the court of public opinion. The legal outcome of the trial seemed preordained in baseball’s favor given the Supreme Court’s two decisions exempting the game from the antitrust laws. A trial, however, gave Flood’s lawyers an opportunity to change public opinion about the reserve clause and to develop testimony in the hopes of persuading the Supreme Court to consider reversing itself.

  As Judge Cooper entered the courtroom, the court clerk, Joseph Cannata, asked both sides if they were ready.

  “We are not ready, your Honor,” Mark Hughes announced on behalf of the owners, “but we have been directed to be here at this time and proceed with the trial, so we are here.”

  Flood’s trial was like a Broadway show without any dress rehearsals. Both sides had only six weeks to prepare. They had no idea who some of their witnesses were going to be or what the other side’s witnesses were going to say, because there had been no pretrial depositions or even answers to written questions in the form of interrogatories. They exchanged a few financial documents. They also agreed to estimate Flood’s damages at $1 million. But damages were irrelevant. This was a trial about the legality of the reserve clause.

  No one was more ill-prepared for trial than Flood’s lead counsel, Arthur Goldberg. The Democratic gubernatorial nomination that he had expected to be handed to him was turning out to be a dogfight. Howard Samuels, a wealthy Long Island businessman and former undersecretary of commerce, exposed Goldberg as a weak candidate. Goldberg was running for governor of New York out of the same exalted sense of duty and ego
that prompted him to give up his Supreme Court seat rather than out of any passion for the job. He had never campaigned for a governmental position in his life. Shaking hands and kissing babies was not his style. He loathed calling people up and asking them for money. He gave long-winded speeches and convoluted answers to simple questions. He was aloof. Stories that began with “Then I told President Kennedy . . .” and “Like Justice Holmes, I . . .” alienated reporters. He insisted that they read the British version of his Who’s Who biography because it was more complete than the American version. “I spent a month with Arthur Goldberg yesterday morning,” one reporter joked. Every time Goldberg left his apartment at the Pierre Hotel, he lost votes.

  Goldberg spent the month before Flood’s trial campaigning. Topkis, Bill Iverson, and Max Gitter scheduled appointments to speak with Goldberg about the case by leaving phone messages with his secretary. On May 6 and May 7, Topkis and Gitter received half-hour time slots from 10:30 to 11 a.m. Goldberg’s schedule was otherwise booked solid with campaign events from morning until night. The day before the trial, Goldberg left his apartment at the Pierre Hotel at 9:45 a.m. and returned home at 8:45 p.m. His secretary penciled in a 15-minute meeting with Gitter from 2 to 2:15 p.m. about the Flood case. That was the only indication that Goldberg had prepared for the first day of trial.

  The morning of Flood’s trial, Goldberg ate breakfast with I. W. Abel, the president of the Steelworkers Union. As the general counsel of the Steelworkers for nearly 20 years, Goldberg had displayed unparalleled ability as a lawyer and courtroom advocate. The breakfast with Abel failed to rekindle any of Goldberg’s old legal magic.