by Brad Snyder
CHAPTER ELEVEN
For Flood, the rest of the trial after Jackie Robinson’s testimony was a “blur.” He was at loose ends in New York City. He shared a suite with Allan Zerman at the Warwick Hotel. They hung out at the hotel bar, which was across the street from ABC News. Flood and Zerman drank with Howard Cosell and Don Meredith after the sportscasters had signed their first contract to do a weekly sports broadcast known as Monday Night Football. They also met the brains behind ABC Sports, producer Roone Arledge.
Flood also went out for drinks with the two young Paul, Weiss associates working on his case, Bill Iverson and Max Gitter. They were only a few years younger than Flood, but whereas Flood’s baseball career was at an end, their legal careers were just beginning. For Iverson and Gitter, Flood’s trial was a joyride. On lunch breaks, Flood and his trial team retreated to a Chinese restaurant near the Bowery. Cosell and Red Smith joined them a few times, as did a few of Flood’s friends. One afternoon, Iverson and Gitter left the trial early to order the food. They became so enamored of the restaurant’s dumplings that they placed six orders—72 dumplings in all. Flood and the rest of the group ate only a dumpling or two apiece and left the other 60 dumplings on the table. Iverson and Gitter finished them all.
One of Flood’s lunch guests was the brother-in-law of Judy Pace, Oscar Brown Jr. An accomplished singer, songwriter, poet, and playwright, Brown was a theatrical revolutionary. He produced two Broadway musicals but spent his life challenging the establishment. In 1967, he put on a revue, Opportunity Please Knock, with the Blackstone Rangers street gang in his native Chicago. In December 1969, he cast former heavyweight champion Muhammad Ali—during his exile from the ring—in the starring role of a Broadway musical, Buck White. Wearing an Afro wig, Ali sang the chorus of the title song with his black fist raised in the air:
If you’re expecting us to Uncle Tom
You might as well send and get your bomb
’Cause that’s all over now, Mighty Whitey.
All over now.
Critics panned Buck White, which had only four Broadway performances. Ali, after mixed reviews, waited for the courts to reverse his draft-evasion conviction before returning to boxing. But Brown and his wife, Jean Pace, returned a month later with another musical revue, Joy, which was in its fifth month of a successful off-Broadway run during Flood’s trial. Brown, like Flood, was his own man. They bonded in New York City. Brown even came to Flood’s trial.
Flood did not lack for female companionship. His Warwick Hotel suite was a revolving door of beautiful women—a black schoolteacher, a beautiful blonde, and even a few prostitutes. The secretaries at Paul, Weiss swooned over him when he walked through the halls of the law firm. He looked and talked like a movie star. Women could not get enough of him, and he did not turn many of them away.
Women served as a welcome distraction from Flood’s problems with his photography business. Feeling the pressure in the months leading up to his trial, he had neglected his business interests. While the trial proceeded in New York City, Marian Jorgensen stayed in St. Louis trying to keep the power company from turning off the electricity at Flood’s photography studios. More creditors closed in on him. The demise of the business was imminent.
The rest of the trial bored Flood. The testimony during the remainder of his case—by economist Robert Nathan, NFL commissioner Pete Rozelle, NBA commissioner J. Walter Kennedy, NHL Players Association chief Alan Eagleson, and NHL president Clarence Campbell—was uneventful.
Cooper praised Rozelle’s testimony. “Did you ever have any legal training?” Cooper asked.
“No, your Honor,” Rozelle replied.
“This is the way,” Cooper said. “Very good. You handled yourself very well. I compliment you.”
Cooper’s treatment of Rozelle gave Flood’s lawyers a clue as to the way he would cater to the egos of the baseball dignitaries taking the stand for the owners.
After Robinson, Greenberg, and Brosnan testified, Goldberg returned to the campaign trail—a move that must have disappointed Cooper. Cooper wanted to prove that he was a competent judge under the brightest possible spotlight. That spotlight dimmed in Goldberg’s absence. Goldberg had promised Cooper that Flood’s trial would be his first priority. He had also promised that Flood’s case would take only one day. He had broken both promises.
Flood’s biggest disappointment with his ongoing trial was that no current players testified on his behalf. “So far as I know no one volunteered,” Flood said on June 1. “I understand the situation. If a guy comes here and publicly says I’m right, he could be risking his future career in baseball.” Miller and Moss explained the players’ predicament to Flood and the press. “Some of Curt’s friends indicated to him that they would like to testify but were fearful of jeopardizing their baseball careers,” Moss said. “They said they hope Curt understands—and I think he does.”
Not a single active player came to the trial to show his support by sitting in the gallery. The players were the ones paying for it; they could at the very least have come to the trial to see what they were getting for their money. The Cardinals played night games May 26 and 27 in New York against the Mets. Flood’s best friend in baseball, Bob Gibson, started the series finale on the afternoon of Thursday, May 28. Flood asked Gibson for two tickets that day. Flood and Zerman skipped the trial to watch Gibson strike out 11 Mets at Shea Stadium during a 9-2 Cardinals win. “Curt Flood still likes baseball,” Gibson told reporters, citing the ticket request as proof. The night before he pitched, Gibson had stopped by for several hours at Flood’s Warwick Hotel suite. But Gibson made good on his promise to stay “a few hundred paces” behind Flood to avoid any fallout. Gibson and a few of Flood’s former Cardinals teammates could easily have come to lower Manhattan one of those mornings and quietly watched Flood’s trial from the back of the courtroom. They never did. “I know we talked about it, and I know we were aware of it,” Joe Torre recalled. “I can’t give you a good reason why we weren’t there.”
Miller later admitted that one of his biggest tactical mistakes was not encouraging the players to be seen watching the trial and leaving the courthouse. “[I]f I had it to do over again I would say, ‘For God’s sake, this man is a colleague of yours!’ ” Miller wrote. “‘What happens to him could have a dramatic impact on your life, so when your team comes to New York, if you’ve got a night game, come on down to Foley Square for a couple of hours during the day and show him some support.’ ” Miller blamed himself. But he had been on the job for only four years; he and the players were not as united as they would later be.
As soon as Flood’s lawyers rested his case, the owners again asked Cooper to dismiss the lawsuit. Hughes argued that Flood had not proved any of his claims. Flood was “obviously not a slave” because, as Cooper had said in denying the preliminary injunction, Flood “was free to quit and refuse to play for Philadelphia.” All of Flood’s witnesses, except Flood himself, favored modification, not elimination, of the reserve clause. This did not amount to an antitrust violation. Hughes reminded the judge that Toolson exempted baseball from the federal antitrust laws. Hughes characterized Flood’s lawsuit as merely a union negotiating tactic. Any changes in the reserve clause, he said, must be accomplished at the negotiating table. Baseball, Hughes argued, also was exempt from Flood’s lawsuit under federal labor law. The players, according to this theory, could choose either to join forces as a union and negotiate collectively with the owners or to sue the owners under the antitrust laws, but not both. Relying on this “labor exemption,” Hughes argued that the Players Association, or one of its members, could not bring an antitrust lawsuit about the reserve clause while engaging in labor negotiations about the same issue. Finally, Hughes cited the Wisconsin Supreme Court’s decision in the Milwaukee Braves case as proof that baseball’s federal antitrust exemption trumped Flood’s state and common law anti-trust claims.
Flood’s biggest asset for the remainder of his trial was the leadership of Jay
Topkis. In a stirring response, Topkis told Cooper that “we are fortunate to live in a time of change, great change,” reminded him that the Supreme Court had struck down its long-standing decisions permitting racial segregation, and argued that it was time for Toolson to go the way of the Court’s other decisions that restricted personal freedom. Topkis understood if Cooper was waiting for the Supreme Court to overrule Toolson. But the state antitrust laws applied to insurance companies; there was no reason they should not apply to baseball. Cooper, as a federal judge, was not bound by decisions of the Wisconsin Supreme Court. And as for Flood not being a slave, Topkis remarked: “The only difference that I can see between peonage and involuntary servitude on the one hand and Curt Flood’s position on the other is that he was being paid $90,000 a year. That makes him a mighty high-paid slave. There is no doubt about that. But you remember Winston Churchill’s great remark about the lady of easy virtue who was paid a great deal of money and the label that was still hung on her, the same thing is true here. As long as Curt Flood has pressed down upon him the restraint of base-ball, he must feel himself a slave because, in fact, he is a slave. To use his skills, he must submit to slavery.”
Topkis employed his ample rhetorical skills to remind Cooper about Flood’s courage. “I would ask your Honor to consider what a remarkable sacrifice it is that this young man is making by coming into this court,” Topkis said. “He is at the peak of his powers today as a baseball player, or he was two months ago, being compensated quite handsomely. But he is putting that all aside, saying, ‘To me freedom is worth more.’ ”
After a brief recess, Cooper denied the owners’ motion to dismiss. He forced the owners to put on their defense. The next morning at 10 a.m., the owners called their first witness—commissioner Bowie Kuhn.
Kuhn’s problems as commissioner continued to mount. The city of Seattle was suing baseball because after a single season the expansion Pilots had left town to become the Milwaukee Brewers. Kuhn was fending off criticism for his lenient suspension of pitcher Denny McLain. Even his self-described “Washington mentor,” lawyer Paul Porter, advised Kuhn on a limousine ride from New York to Washington to abandon his “high moral tone.” Kuhn replied: “I think it’s the commissioner’s job to strike a high moral tone, come what may.”
A high moral tone was all that Kuhn had left after the union and the owners agreed in principle to a new labor agreement, known as the 1970 Basic Agreement. The owners agreed to allow the players to take future grievances, except those involving “integrity issues,” to an independent arbitrator. Kuhn acceded to the arrangement after a chance meeting with Miller on a midtown Manhattan street corner. Miller explained that the union intended to inundate the commissioner with grievances and that every decision Kuhn made would alienate either an owner or the union. In the long run, independent grievance arbitration turned out to be a powerful weapon for the players to resolve disputes with management and another way for them to attack the reserve clause besides the courts. In the short run, the decision to permit independent grievance arbitration eviscerated Kuhn’s authority. “[T]he Lords of Baseball have sold out the commissioner,” Dick Young wrote a few days before Flood’s trial. “They have peddled away his power. They have conceded, at last, that he is their commissioner, not the players’ commissioner.”
With his only remaining role to protect the game’s integrity, Kuhn embarked on a moral crusade against pitcher Jim Bouton and his new book, Ball Four, a behind-the-scenes account of Bouton’s 1969 season as a knuckleballer for the Seattle Pilots and the Houston Astros. Bouton’s irreverent look at the game portrayed his former New York Yankees teammates as Peeping Toms, described Mickey Mantle drinking too much and slamming bus windows in the faces of kids asking for his autograph, and revealed players popping amphetamine pills they called “greenies.” Bouton’s Ball Four made Brosnan’s The Long Season look tame.
On June 1, Kuhn called Bouton into his 20th-floor, corner office on Fifth Avenue, which Bouton described as “decorated in Early Authority—paneled walls with pictures of presidents and a large desk between two American flags.” Kuhn tried to persuade Bouton to sign a document that repudiated everything in his book and placed the blame on his editor, sportswriter Leonard Shecter. Bouton, accompanied by Miller and Moss, refused. Kuhn then spent the next three hours urging Bouton not to reveal what had happened at their meeting. The commissioner let Bouton off with a warning and turned his book into a bestseller.
A week before meeting with Bouton, Kuhn testified against Flood. The commissioner viewed Flood’s lawsuit not as Flood v. Kuhn, but as Miller v. Kuhn. This was Kuhn’s chance to one-up his labor adversary in the commissioner’s legal domain.
Kuhn’s two days of testimony represented an argument against change. Kuhn testified that “baseball as we know it simply could not survive” without the reserve clause. “Baseball as we know it,” Leonard Koppett wrote after the trial, was an elusive concept. It meant 16, 20, or 24 teams; 154 or 162 games; natural grass or artificial turf; a dead or lively ball; big or little gloves; 400 or 600 major leaguers; two or four umpires; day or night games; franchises in 11 Northeast cities or 16 franchise shifts in 17 years; massive farm systems or a free-agent draft; complete-game pitchers or starters followed by relievers. “The only aspect ‘preserved’ by the reserve system,” Koppett wrote, “is the reserve system itself.”
Without the reserve clause, Kuhn predicted, the rich teams would sign all the star players, the poor teams would go out of business, and the operation of a league would be impossible. Major League Baseball would devolve into an “exhibition business.” He based his predictions on the “chaotic conditions [that] prevailed when there was no reserve clause” in professional baseball from 1871 to 1879, when players jumped to rival teams and leagues and fixed games. Kuhn’s argument, however, lacked historical context. He was comparing baseball in Reconstruction-era America in the 1870s to modern-day baseball in the 1970s. The argument ignored the industrialization of America, the evolution of the game, the rise of the modern print and electronic media, and a century of progress.
Kuhn rejected all Miller’s proposed reserve clause modifications by rigidly analyzing their effects on four criteria: (1) integrity of the game; (2) economics of the sport; (3) mechanical workability; and (4) equality of competition. Topkis countered on cross-examination that the reserve clause accomplished none of these goals except to limit player salaries. Player salaries constituted 59 percent of team expenses in 1879 compared with 22 percent in 1950 and 21.5 percent in 1970. It certainly did not help equalize competition. Four teams won 63 of the 100 pennants from 1920 to 1969.
Both Kuhn and National League president Chub Feeney testified that free agency would compromise the game’s integrity by inducing players to cheat. Feeney raised the possibility of a potential free agent committing a key error during the pennant race and then joining the opposing team the following season. According to Feeney, “the public’s confidence in the integrity of the game would be shattered.” Feeney did not explain what incentive a free agent would have to perform below his best or what incentive another team would have to sign a player who did so. Kuhn made an equally implausible prediction that free agency would stifle trades and end offseason discussion of baseball known as the Hot Stove League.
On June 2, after Cardinals general manager Bing Devine’s testimony, former Cardinals catcher Joe Garagiola brought 13 minutes of promanagement cheer. Garagiola’s image had come a long way since his heated 1947 encounter with Jackie Robinson. During a routine double play at first base, Garagiola stepped on Robinson’s heel. Robinson—who had been spiked by Cardinals outfielder Enos Slaughter a few weeks earlier—exchanged angry words with Garagiola before Robinson’s next time at-bat. Garagiola, according to Robinson, “made a crack about my race.” Umpire Beans Reardon stepped in between them. Dodgers coach Clyde Sukeforth, knowing that Rickey had ordered Robinson not to fight back, tried to push Robinson away. Nothing more came of the incident. Garagiola s
pent the rest of his life trying to make people forget that it had ever happened. The gregarious host of NBC’s Today show, the game show He Said, She Said, and several radio programs, Garagiola endeared himself to a subsequent generation of baseball fans as one of the voices of television’s Game of the Week.
Garagiola spelled his name for the court reporter. Even before his testimony began, he and Judge Cooper formed a mutual admiration society.
“Do you always have a smile like that?” Cooper asked.
“Yes, always.”
“That is a blessing.”
Garagiola returned the compliment: “I wish you were on a bubble gum card, Judge. I’d have you.”
In his only substantive testimony, Garagiola said of the reserve clause: “To me this is the best system so far. Nobody’s come up with anything better. I think if they might change the name but have the same thing, everybody would be happy.”
Topkis declined to cross-examine Garagiola. It would have been like interrogating Santa Claus. Nothing could have been gained except alienating Judge Cooper.
The only nondefendant in baseball to testify against Flood, Garagiola made light of the system of player ownership years later. “Being traded is like celebrating your hundredth birthday,” he said. “It might not be the happiest occasion in the world, but consider the alternatives.” Garagiola lacked Flood’s vision to do just that.
Another former player who testified against Flood was American League president Joe Cronin. As the Washington Senators’ player-manager, Cronin was traded to the Boston Red Sox for $225,000 and shortstop Lyn Lary by his uncle-in-law, Senators owner Clark Griffith. After sending Cronin to the Red Sox, Griffith and the Senators never won another pennant. Cronin testified that Griffith—known during his pitching days as “the Old Fox”—was “one of the finest baseball talents (and one of the finest human beings) he had ever known.”
