by Brad Snyder
“That is the effect that this case has had on this judge,” Cooper said.
For three weeks, Cooper had tried hard to prove to the world that he was an erudite jurist and not a raving madman. He had no intention, however, of following Frank’s thinking in Gardella. Cooper’s true feelings about the case came out in the ways he bullied Flood, browbeat Brosnan, and bristled at Veeck, yet ingratiated himself with celebrities including Robinson, Kuhn, Rozelle, and Garagiola. Cooper was a prisoner of the game’s establishment. And the two Supreme Court precedents in base-ball’s favor did not give him much room to prove otherwise.
Flood was not present for Veeck’s testimony or Cooper’s closing remarks. Nor was he there June 8 for the cross-examination of the owners’ economist, during NHL president Clarence Campbell’s May 26 testimony, or for Topkis’s stirring defense against the owners’ motion to dismiss.
Flood most likely retreated to the Westchester County home of his literary collaborator, Richard Carter. For a month in early summer, he lived at Carter’s home in Ossining, about 25 miles outside of New York City, ostensibly working on his book but mostly getting drunk. He admitted later that he spent most of that summer “bedding and boozing.” The boozing was more evident. He began each day with a vodka martini. Members of Flood’s legal team noticed his drinking during the trial. It got worse at Carter’s home.
Carter’s 12-year-old son, John, idolized Flood. One afternoon, John invited several friends over to play some backyard baseball. Not believing their good fortune that they had a major leaguer in their midst, they invited Flood to join them. Flood was so drunk that he was in no condition to do anything. He uncorked a wild throw and heaved the ball into the woods behind the Carter home. The boys never found the ball. Flood retreated inside the house.
Flood’s life was a mess. He had thrown away his baseball career for a lawsuit that he had little chance of winning. Even though Marvin Miller had warned him that it would be like this, Flood was unprepared to deal with the harsh realities of his daily life without baseball.
St. Louis—despite Flood’s protestations about being traded from the Cardinals—no longer felt like home. The lawsuits against Curt Flood & Associates and Flood personally represented the least of his problems. The IRS was on his tail. Curt Flood & Associates owed the government $6,888.42 in unpaid withholding taxes. The IRS auctioned off a camera and camera stand from one of Flood’s two St. Louis photo studios. The telephones had been disconnected. Flood’s attorney, Allan Zerman, no longer knew if the corporation was even in business. Neither did Flood. He took no part, nor did he want any part, in his business affairs.
In early August, Marian Jorgensen forced Flood to confront the reality that his portrait and photography businesses were finished. Flood lacked the business sense, the desire, and the money to keep them afloat. The failure to file annual corporate disclosure forms with the state of Missouri by the end of 1970 spelled the official end of Curt Flood & Associates, Inc.
The demise of Flood’s business interests in St. Louis also led to the end of his close friendship with Marian Jorgensen. Flood decided to clear his head by returning to Denmark. So Marian packed up the St. Louis apartment and moved back to Oakland. Marian’s family money began to run out. She went to work for Oakland’s welfare department and later moved in with her son about an hour outside Oakland. She never remarried and became reclusive, eventually severing her ties with Carl, Flood’s sister, Barbara, and Flood himself. Without Marian, Flood had no support system, no way of coping, other than vodka.
Denmark helped Flood escape from reality. He initially checked into the same Copenhagen hotel as the Rolling Stones, but the groupies who pounded on the door of the band’s room and bombarded it with phone calls reminded Flood of his hectic life at home. He checked out and rented a room that overlooked a harbor in Vedbaek, a suburb 15 miles north of Copenhagen. He grew a goatee, bought a sketch pad and a beret, and sat in Copenhagen’s Tivoli Gardens flirting with Danish women. He enjoyed the anonymity of a black expatriate artist much more than the constant celebrity of a major league ballplayer. “In Denmark, I can walk down the street and nobody recognizes me,” Flood said. “I can have a beer and nobody recognizes me. I feel free here.” He also was free from answering reporters’ questions about his lawsuit against baseball.
On July 7, both sides filed massive post-trial briefs that set up their arguments for the inevitable appeal. The 88-page brief filed by Flood’s legal team exposed inconsistencies in baseball’s position. In Federal Base-ball and Toolson, baseball’s lawyers had encouraged the Supreme Court to exempt the game from the federal antitrust laws because the state antitrust laws still applied. Flood’s lawyers recognized that no trial court was going to reverse two Supreme Court precedents but that it might rule in Flood’s favor on state law grounds. If baseball was not interstate commerce, as Federal Baseball had claimed, then it was intrastate commerce subject to state law. State antitrust law, therefore, might provide the federal court of appeals or the Supreme Court with another way of ruling in Flood’s favor.
The opening of the owners’ 133-page brief drove a wedge between Flood and the Players Association by asking: “Who is the real plaintiff in this action?” The owners’ lawyers pointed out that the union was paying for the litigation and that the goals of the union (modifying the reserve clause) and of Flood (eliminating the reserve clause) were at odds. On appeal, they sought to make Flood and his enormous personal sacrifices irrelevant. They wanted to remove the human face from the lawsuit and expose it as a mere labor negotiation tactic. They, too, were looking ahead for ways that the Supreme Court could rule in their favor.
On July 13, Flood and the owners’ lawyers filed short replies to each other’s briefs. A month later, on August 12, Cooper issued his decision. Cooper’s 47-page typewritten opinion said what both Cooper and everyone else already knew before Flood’s trial: He could not overrule the Supreme Court’s decision in Toolson upholding baseball’s antitrust exemption. He rejected Flood’s state and common law claims as preempted by federal law. He found it unnecessary to rule on whether federal labor law also thwarted Flood’s antitrust claims. Finally, he dismissed Flood’s claims of involuntary servitude because Flood “has the right to retire and to embark upon a different enterprise outside organized baseball.” After reading this section of Cooper’s opinion, Red Smith wrote: “To the Four Freedoms of Franklin Roosevelt—freedom of speech, freedom of worship, freedom from want, and freedom from fear—Judge Cooper has added freedom to starve.”
Cooper, however, refused to stop there. He could not let his moment in the spotlight slip away without expressing his personal views about the reserve clause:
Prior to the trial we gained the impression that there was a view, held by many, that baseball’s reserve system had occasioned rampant abuse and that it should be abolished. We were struck by the fact, however, that the testimony at trial failed to support that criticism; we find no general or widespread disregard of the extremely important position the player occupies.
Clearly, the preponderance of the credible proof does not favor elimination of the reserve clause.
Cooper also predicted that the solution to this lawsuit lay at the bargaining table. He rejected Flood’s argument that the owners had refused to negotiate in good faith and expressed optimism that “the reserve clause can be fashioned so as to find acceptance by player and club.” Cooper concluded: “We are bound by the law as we find it and by our obligation to ‘call it as we see it.’ ” He ordered judgment for the defendants.
Bowie Kuhn commended Judge Cooper’s decision. “I am particularly pleased,” Kuhn read from a prepared statement, “that the court has recognized the need for a reserve system and has recognized further that baseball has not disregarded the extremely important position the player occupies.” The commissioner used Cooper’s decision to urge the players to abandon Flood’s lawsuit and settle their issues with the reserve clause at the bargaining table.
Miller was unfazed by Cooper’s opinion or Kuhn’s response. “Judge Cooper only held that it is up to the Supreme Court to overrule the Supreme Court,” he said. “I think everyone knew that it would be very difficult for a district court to overrule the Supreme Court.” Miller chided Kuhn and his call for negotiations as disingenuous given that the union and the owners had agreed not to negotiate about the reserve clause while Flood’s lawsuit was pending. The owners, moreover, had never wanted to negotiate about the reserve clause when there was no lawsuit. Miller welcomed sincere efforts by management to modify the reserve clause but doubted any real possibility of change.
Arthur Goldberg heard the news while hiking with a half dozen reporters in the Adirondacks. For this reluctant campaigner, the 10-mile hike was the highlight of the campaign trail. He ditched his conservative suit and vest for a backpack, a sweater, khaki pants, and a jacket. He spoke with environmentalists, slept overnight in a pup tent, and washed in a stream. He won over a few reporters, who discovered beneath Goldberg’s aloof and somewhat pompous exterior a real human being.
As he had told Brosnan in the cab, Goldberg saw Cooper’s decision coming. “This is the end of the first inning,” Goldberg said from Long Lake, New York. “The second inning will be in the Circuit Court of Appeals.” On August 24, Flood’s lawyers filed a notice of appeal.
Phillies general manager John Quinn, informed of Judge Cooper’s decision while in Hampton, Virginia, repeated his offer that if Flood “wants to come back and play for the Phillies we’d be happy to take him back.” But Quinn knew that Flood would never play for Philadelphia. On August 31, the Cardinals sent the Phillies Bob Browning, an 18-year-old minor league pitcher on the disabled list with a broken collarbone, as final compensation in the Flood deal.
In Denmark, Flood read about Judge Cooper’s decision in the International Herald Tribune. He, too, viewed it as a perfunctory step on the way to the Supreme Court. Flood told reporters that Denmark was his “permanent home.” He had begun negotiations to buy a restaurant-bar but was having trouble obtaining a liquor license. His only American visitor was his onetime girlfriend, Judy Pace. American soldiers on leave from Germany kept him abreast of the baseball season. They told him about the success of Bob Gibson (who won the 1970 Cy Young Award), the failure of the Cardinals (who finished fourth in the NL East), and the World Series victory by the Orioles.
Flood’s financial problems began to weigh on his conscience. The IRS and other creditors hounded him. He owed his ex-wife, Beverly, back alimony and child support. He realized that it looked like he was running away from his debts. He viewed Copenhagen no longer as “a vacation resort but a jail.”
A phone call from a Washington Post reporter offered him an escape.
CHAPTER TWELVE
Washington Post sportswriter Leonard Shapiro told the transat- lantic operator to dial 891-711 in Vedbaek, Denmark.
Curt Flood picked up the phone.
Shapiro asked Flood what he thought about playing for the Washington Senators. The previous day, Senators owner Bob Short had upstaged the last day of the Orioles-Reds World Series by agreeing to send utility player Greg Goossen to the Philadelphia Phillies just for the right to negotiate with Flood.
“This is the first I’ve heard of it,” Flood said. “Are you really calling from America? I have a lot of flaky friends in Denmark.”
Flood expressed interest in playing for the Senators to Shapiro but doubted that he could do so without prejudicing his legal battle against the reserve clause. “If I signed a contract with that clause, I’d be making a big farce of my case,” Flood said. “I’m seriously fighting it. How can I fight it on the one hand and accept it on the other? It would be ludicrous.”
A few moments after Flood hung up the phone with Shapiro, Short called. Flood repeated that he wanted to play baseball but that he had no desire to jeopardize his lawsuit. He referred any other questions to his lawyers. But Short was not giving up that easily. He explained that sitting out an entire season was enough of a financial and professional sacrifice to sustain Flood’s lawsuit. It was time for Flood to play ball. During a second phone conversation with Flood, Short knew he had him. Flood was talking about how much he loved the game and missed playing it. Short offered to fly to Denmark or have Flood fly to Short’s home base in Minneapolis. Instead, Flood agreed to fly to New York City, on Short’s dime, to discuss the possibility of playing for the Senators. Flood sent a telegram to Marvin Miller about his impending meeting with Short and headed for New York.
A Minneapolis-based hotel and trucking magnate, Robert Earl Short could talk anyone into anything. In February 1969, about two months after buying the Senators, he talked Ted Williams out of retirement and into managing. It happened to be the same year that Williams’s deferred payments ended from the Boston Red Sox. More than eight years since his last game with the Red Sox, Williams had no desire to manage or to leave his life of fishing and leisure in the Florida Keys. Short engineered a return phone call from Williams by pretending to leave a message from American League president Joe Cronin but with Short’s phone number. Williams could not resist Short’s sales pitch. Few could.
Short possessed the persistence of a lawyer, the people skills of a politician, and the hucksterism of a businessman. A Georgetown law graduate, he was the youngest delegate to the 1940 Democratic convention at age 21. He ran Hubert Humphrey’s 1964 vice-presidential campaign and later served as the treasurer of the Democratic National Committee. He bought the nearly bankrupt Minneapolis Lakers in 1957, moved them to Los Angeles three years later, and began building a basketball dynasty by talking Elgin Baylor out of returning to college for his senior season and Jerry West into signing by hiring West’s college coach, Fred Schaus. Short sold the Lakers in 1965 to Jack Kent Cooke for an NBA-record $5.175 million because, as Dodgers owner Walter O’Malley advised Short, for that kind of money he could get into baseball.
Three years and $9.4 million later, Short purchased the Senators, leveraging himself to the hilt to buy the team after his partner backed out. He figured that the tax benefits from depreciating his ballplayers like machinery would offset profits from his trucking and hotel businesses. The profits, however, never materialized, and the losses from the Senators mounted. Short threatened to move the franchise to Dallas- Fort Worth unless things changed in Washington. He wanted a rent-free lease at RFK Stadium, all the profits from parking and concessions, and a radio and television contract that rivaled those of other major league cities.
Short believed that he could put people into the stands by identifying the Senators with “faces.” Ted Williams was a face. So was troubled Detroit Tigers pitcher Denny McLain. A week before contacting Flood, Short had traded pitcher Joe Coleman, who went on to win 20 games for the Tigers in 1971, and the left side of the Senators’ infield, shortstop Eddie Brinkman and third baseman Aurelio Rodriguez, in a seven-player deal for the former 31-game winner and failed bookmaker, McLain. Williams was furious about the McLain trade and particularly about the loss of Brinkman and Rodriguez. But McLain was a face.
In Flood, Short focused on a new face, a black face for a majority-black city thirsting for a black star. “I think Flood can be merchandised in this town,” Short said. Flood piqued Short’s interest at the owners’ meeting July 29-30 in Montreal. Rumors surfaced before the meeting that the owners wanted to settle Flood’s lawsuit. Short was the only owner supposedly in favor of a cash settlement. What Short wanted to do was to avoid paying his share of the owners’ $1 million in projected legal fees. At the meeting, he proposed that someone other than the Phillies be given the opportunity to sign Flood. And if that was not possible, then the Phillies should pay the bulk of the legal fees. After the meeting, Phillies general manager John Quinn facetiously asked the Senators owner if he could sign Flood. Short said yes, he could. Quinn responded that they could not discuss a possible trade until after Judge Cooper’s decision.
During the World Series, in Cincinnati, Short again appr
oached Quinn about Flood. Short offered Quinn $100,000. Quinn, however, wanted ballplayers. Later that week, after consulting with Bowie Kuhn, they announced the deal at the official World Series hotel in downtown Baltimore. They agreed on Greg Goossen for the right to negotiate with Flood, and an additional player and the Senators’ number one draft pick in the 1971 amateur draft if Flood signed. Quinn saw no chance of Flood’s signing with Philadelphia and not much chance of his signing with Washington. “What the hell,” Quinn said in Baltimore. “We’ve got nothing to lose.” Like most people, Quinn underestimated the power of Short’s sales pitch. “I’m going to sign Curt Flood,” Short said. “You can make book on that.”
On October 22, Flood arrived in New York City. Two days later, Flood, Goldberg, associate Max Gitter, Miller, and Moss met with Short at Goldberg’s apartment at the Pierre Hotel. It was ten days before Election Day. Goldberg trailed badly against incumbent Nelson Rockefeller in the New York gubernatorial race. That summer, Goldberg had asked Miller for a photo opportunity in the New York Mets clubhouse, and Miller had reluctantly agreed. Miller, Goldberg, Goldberg’s running mate, Basil Paterson, and writer Jimmy Breslin rode in a limousine to Shea Stadium for a Mets-Cubs game. Breslin talked Goldberg’s ear off about drug treatment issues. All Goldberg wanted was to get his picture taken with Cubs legend Ernie Banks. Their starkly different agendas indicated how unenthusiastic Goldberg was about running for office. At one point during the game, Goldberg came close to apologizing to Miller for breaking his promise not to run. “It wasn’t supposed to turn out like this,” Goldberg said.
During the meeting with Short at Goldberg’s apartment, Goldberg and Miller sought to protect Flood’s lawsuit while reaching an agreement that would get Flood back into a major league uniform. Goldberg agreed with Short’s analysis that Flood could play for the Senators in 1971 without prejudicing the lawsuit. By sitting out the entire 1970 season, Flood had incurred actual damages and created a real “case or controversy.” The lawsuit would not be moot if Flood retook the field.
