by Brad Snyder
We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes’ happiest days, that the rationale of Toolson is extremely dubious and that, to use the Supreme Court’s own adjectives, the distinction between baseball and other professional sports is “unrealistic,” “inconsistent,” and “illogical.” . . . [W]e continue to believe that the Supreme Court should retain the exclusive privilege of overruling its own decisions, save perhaps when opinions already delivered have created a near certainty that only the occasion is needed for pronouncement of the doom. While we should not fall out of our chairs with surprise at the news that Federal Baseball and Toolson had been overruled, we are not at all certain the Court is ready to give them a happy despatch.
On January 11, about two weeks before the Second Circuit oral argument in Flood’s case, the Supreme Court declined to hear the case now known as Salerno v. Kuhn. The Second Circuit’s decision in Salerno remained the law of the circuit, but the tone of Judge Friendly’s opinion gave Flood’s legal team encouragement as it sought the attention of the Supreme Court. After Salerno, the Second Circuit served merely as the warm-up act to persuade the Supreme Court to hear Flood’s case. As typically happens on appeal, both sides used their briefs to reprioritize and refine their legal arguments.
On November 2, 1970, Flood’s legal team filed a 100-page appellate brief emphasizing his claims under state antitrust law. The owners “may not have it both ways,” the brief said; baseball is either interstate commerce subject to federal law or intrastate commerce subject to state law. “If Curt Flood must bear the burden of Federal Baseball Club and Toolson, he should receive the benefit of those decisions as well,” the brief said. Goldberg and other members of Flood’s legal team believed that the state law argument gave the Supreme Court a way to wiggle out of its prior decisions and rule in Flood’s favor. It also represented a fresh issue before the Second Circuit. Salerno did not address any state law claims. Flood’s brief relegated his involuntary servitude and peonage claims to a mere footnote—an indication that his lawyers considered their slavery arguments to be weak and inconsequential.
The owners’ lawyers responded in their 46-page brief that Toolson and Salerno controlled this case, that the decision to remove baseball’s antitrust immunity was up to Congress, and that Congress had not acted. They used a large chunk of their brief to push their labor exemption argument—that federal labor law prevented Flood and the Players Association from challenging the reserve clause under the antitrust laws. The players either could aggregate as a union under federal labor law or sue the owners under federal antitrust law, but not both. Since the players had chosen to form a union, the brief argued, the only way to change the reserve clause was through labor negotiation, not an antitrust lawsuit. The owners’ lawyers figured that if the Supreme Court decided to hear Flood’s case and reconsider the game’s antitrust exemption, then the labor exemption was the next best way to defeat Flood’s lawsuit. They rebutted Flood’s state law claims by relying on the logic of the Milwaukee Braves case that inconsistent state court rulings would imperil the national pastime. They also informed the court that Flood had signed with the Senators, but that both sides had agreed November 13 that his signing did not prejudice his case.
In their eight-page reply brief, Flood’s lawyers pointed out that the owners had “run from one forum to another, arguing before each that that particular forum [was] not the proper one to regulate baseball.” In Federal Baseball and Toolson, they had argued that state law still applied. In the Milwaukee Braves case before the Wisconsin Supreme Court, they had argued that federal law controlled state law. After Toolson, they had argued it was up to Congress. Before Congress, they had said the legality of the reserve clause would be subject to the courts. In a dispute related to Salerno’s and Valentine’s attempt to unionize the American League umpires, they had said the NLRB lacked jurisdiction because the dispute did not affect interstate commerce, and baseball was international in scope. In Flood’s case, they said his lawsuit should not go forward because the reserve clause was the mandatory subject of labor negotiations. Somewhere, in some forum, Flood’s reply brief argued, the owners should be subjected to the law.
The Second Circuit lacked the authority to end the owners’ shell game. It did, however, grant Flood’s request for expedited review of his case. Despite Flood’s presence at oral argument, the January 27 hearing did not receive much press coverage. The lawyers presented a preview of the possible lineup and arguments if the Supreme Court decided to hear the case. Arthur Goldberg argued for Flood. Lou Hoynes, representing the owners, and Paul Porter, the commissioner’s counsel, took turns on the podium for baseball. Each side spoke for 45 minutes before three federal appellate judges: Sterry R. Waterman, Leonard P. Moore, and Wilfred Feinberg. Oral argument mostly served as an opportunity for the judges to ask the lawyers to amplify or explain aspects of their briefs or to expose weak points in their arguments.
The lawyers treated the hearing almost as cavalierly as the press. On the day of the argument, Hoynes juggled the needs of several other clients at Willkie Farr’s offices in lower Manhattan and could not get out of the office. About a half hour before the argument, he hopped onto the subway near Wall Street for the two-stop subway ride to the courthouse. The train was delayed. Flood’s case was the fifth and final argument of the day. Even so, Hoynes slipped into courtroom 1707 about 10 to 15 minutes after Goldberg had begun. As soon as Goldberg finished, Hoynes stood up and argued for the owners. After 90 minutes, the three judges reserved their decision on the case. A decision was expected in about a month but could take longer.
A week after the Second Circuit argument, Flood found himself back in the headlines because the February 1 issue of Sports Illustrated contained an excerpt of his soon-to-be-published book, The Way It Is. A cross between Eldridge Cleaver’s Soul on Ice and Bouton’s Ball Four, The Way It Is revealed the pain Flood had felt after being turned away from the Reds’ spring training hotel and the shock of the name-calling and isolation he had experienced during his two minor league seasons in the segregated South. “The book in some parts is as sad as a suicide note,” Los Angeles Times columnist Jim Murray wrote.
The Way It Is included a hilarious chapter about ballplayers’ sexual habits. Flood declared that most major league players and coaches were “as randy as minks.” Unlike Bouton in Ball Four, Flood told tales only on himself: throwing baseballs with his hotel phone number on them to attractive women at the ballpark, sneaking down to the lobby to check out groupies who had called up to his room, and discovering another player’s little black book in a Chicago hotel room only to find that it contained all the same names and numbers as his own book. Flood and some of his Cardinals teammates bonded as they “swapped booze and chicks from one end of the country to the other.” But he issued this tongue-in-cheek disclaimer: “In case any baseball wife boggles at this, let her rest assured that her own husband was never involved. We admired and respected his sobriety and his ministerial rectitude. He was an inspiration to us all. So were his closest friends on the club. None of them ever had any fun.”
The Way It Is was about much more than sex. It was about the principles that lay behind Flood’s fight against the reserve clause, the rise of the Players Association under Miller, Flood’s unique bond with Johnny and Marian Jorgensen (he dedicated the book to them), his close friendship with and admiration for Bob Gibson, and the interracial brotherhood of the 1960s-era St. Louis Cardinals. The Way It Is endures as an important historical document. “As a star, a black man, and a forthright critic of the baseball establishment, Flood has much more to say than Bouton did,” syndicated columnist Red Smith wrote. “He is candid about his own pleasures off the field and he can discuss physical appetites without the leering prurience that made Bouton’s disclosures distasteful.”
The baseball establishment loathed Flood’s book. Bowie Kuhn was rumored to be more upset about Flood’s discussion of sex in baseball than he was ab
out Bouton’s. Kuhn, however, did not make the same mistake he had made with Bouton. Flood’s lawsuit prevented Kuhn from calling him into his office. Kuhn got his revenge later that spring by leaving Flood off the All-Star ballot. The move turned out to be more prescient than spiteful.
Other than Jim Murray, Red Smith, and Robert Lipsyte of the New York Times, most of the sporting press teed off on The Way It Is. Flood took aim at too many sacred cows—especially in St. Louis. The Way It Is got Flood excommunicated from Cardinal Nation. He portrayed his second manager, Solly Hemus, as a racist—discussing Hemus’s behavior during the Bennie Daniels incident, his disdainful treatment of Flood and Gibson, and his carping comments after Flood had made it big with the Cardinals. Flood also revealed the paternalism and condescension of Cardinals owner Gussie Busch. He blamed Busch’s spring training diatribe against the players for ruining the team’s morale during the 1969 season, even publishing the speech in its entirety as an appendix.
Harry “the Hat” Walker, the manager of the Houston Astros and a former Cardinals player and coach, called Flood’s book “tripe” and claimed that several years earlier Busch had vetoed a proposed trade of Flood to the Pittsburgh Pirates. “Mr. Busch pets his players, takes care of them in so many ways. For example, I know he gave Flood’s wife a good job modeling,” Walker told the Birmingham News. “I know Mr. Busch has bailed Flood out of several money jams, too.” Walker, despite his Alabama home and Mississippi roots, was extremely close to Flood’s friend Bill White. Flood acknowledged Walker’s help with his development as a hitter. Walker admired Flood’s grit and determination as a ballplayer, just not his opinions about the game. “Philadelphia offered him $100,000 to play,” Walker said. “It’s his right not to take it, but I can’t stomach his crying that baseball mistreated him.”
Bob Broeg of the St. Louis Post-Dispatch stood up for Gussie Busch as well. Flood, Broeg wrote, “emerges as a cynic and as an unforgiving guy whose racial resentment runs deep.” Broeg claimed that after Busch’s 1969 speech to the players, Flood was quoted as saying: “He’s the man.” What else was Flood supposed to say? Broeg also reminded readers that Flood had demanded a $100,000 salary after the 1968 season and had bristled over the team’s decision to try younger players at the end of the 1969 season. He quoted Flood as saying: “I want everything that’s coming to me even if it’s only a dime.” No one had quoted Flood or any other players as saying that at the time. “Curt is indeed curt,” Broeg concluded of The Way It Is. “I never knew he was so damned unhappy.”
Flood further alienated Cardinals fans by ripping into the real patron saint of St. Louis: Stan “the Man” Musial. Flood described an incident in which he and a date had been refused late-night service at Musial’s restaurant, Stan & Biggie’s. Musial later said it “was a long time ago” and the kitchen closed at 12:30 a.m.—no exceptions. Flood said Musial would have made a decent major league manager because he would not think too much and would just let the players play. But he also portrayed Musial as a simpleminded company man and derided Musial’s frequent use of the word “wunnerful.” Musial was deeply hurt by Flood’s comments.
Bob Burnes of the St. Louis Globe-Democrat rushed to Musial’s defense. He called Musial “a great American” and suggested “it would appear someone does begrudge him his hard-earned success.” Burnes lumped Flood’s book in with those of Bouton and former St. Louis Cardinals linebacker Dave Meggyesy. “The one common denominator is that all three have walked away as losers,” Burnes wrote. “They are admitting that they couldn’t or wouldn’t keep up with the rest and now find some vicarious satisfaction in abusing those who made a success of things.”
Flood’s new bosses were not pleased, either. Ted Williams disliked Flood’s book because of “Curt’s public disclosure of his exploits with women and his resentment of authority in general.” Williams made no secret of his disagreement with Flood’s lawsuit, which he had termed “ill-advised” and “wrong.” “Baseball has been played for 100 years and for more than 50 the reserve clause has been in effect, and Curt Flood is the first player I’ve ever heard of who said he’s being treated like a slave,” Williams had said in January 1970.
Williams toned down his comments but stood by his opinion after Flood joined the Senators. “Tell you this, I love baseball so much, I hate to see it torn apart by irresponsible writers,” Williams said.
“Like Curt Flood?” Robert Lipsyte asked.
“No, he’s entitled to say and do what he wants,” Williams replied. “I think he’s wrong, that’s all.”
Even one of Flood’s biggest boosters, Bob Short, took offense at The Way It Is. Short forced Flood to delete a paragraph from the book’s galleys quoting Short about their oral agreement. The lawsuit, The Way It Is, and a skeptical manager ensured that Flood’s first spring training in two years would not be easy.
CHAPTER THIRTEEN
On February 22, Flood walked into the Senators’ spring training camp in Pompano Beach, Florida, on edge. He had vowed to come in two weeks early to get into shape, but arrived only a day before the team’s other position players. It was the first indication that he did not really want to be there. He quietly passed out 40 copies of The Way It Is to his new teammates and coaches. He did not hold any massive book signings or conduct any press conferences. He kept to himself on a team composed mostly of younger players, save for slugger Frank Howard and a few others.
Elliott Maddox made a distinctly different first impression the next day. A 23-year-old black outfielder, he had come over to the Senators from the Detroit Tigers as part of the Denny McLain trade. Street-smart from having grown up in East Orange, New Jersey, and book smart on his way to graduating from the University of Michigan, Maddox learned from the antiwar protests at Ann Arbor how to stand up for himself.
On Maddox’s first day in Pompano Beach, he pasted a “Free Angela Davis” sticker above the nameplate on his locker. The Senators objected to the yellow-and-black bumper sticker about the black activist accused of murder. During the first day of practice, someone had written “Fuck you” on the sticker. Management asked him to take it down. He asked why. If the manager, Ted Williams, could have a picture of Richard Nixon in his office, why couldn’t Maddox put up a lousy bumper sticker? Maddox responded by pasting the sticker inside his locker and adding a poster of Black Panther Party co-founder Huey P. Newton. In the poster, Newton wore a beret and sat in a high-back wicker chair that looked like a throne. He held a rifle in one hand and a large spear in the other. Newton had attended Oakland Tech, the same high school as Curt Flood.
Flood walked by Maddox’s locker and stopped when he saw the poster. “I like that,” he said.
Maddox idolized Flood. He admired the way Flood had played center field for those great Cardinals teams, respected Flood for sitting out the previous season and for suing baseball, and made a concerted effort to win Flood’s friendship.
For a brief time, Flood and Maddox roomed together in spring training. Flood holed himself up in their room at the Surf Rider Motel and drank vodka all night until he passed out. He refused to leave the room for breakfast or dinner. Either he ordered room service or Maddox brought him something to eat. If there was no food, Flood simply drank. Maddox tried to keep Flood from drinking by talking about baseball. A converted infielder, Maddox had begun to learn to play the outfield the previous season from Tigers great Al Kaline. Rooming with Flood served as Maddox’s postgraduate outfield education.
One baseball subject was taboo—the St. Louis Cardinals. On his first day in camp, Flood said: “I have one goal this year—to kick [the] hell out of the Cardinals in the World Series.” He later claimed to have been misquoted. Back in the room, the Cardinals were off-limits. Even though it had been nearly a year and a half, the trade made his old team too painful even to discuss. On the other side of the state in St. Petersburg, a reporter asked Flood’s old friends Lou Brock and Bob Gibson about his comeback. Brock was optimistic: “He’s out there because he has someth
ing to prove.” Gibson knew better: “Curt came back because he needed the money. It’s as simple as that.” Neither of them could help Flood with his problems.
Maddox knew that he could not talk baseball with Flood all night long. Flood would not talk about his career with the Cardinals, nor would he discuss his year away from baseball. And when Maddox stopped talking baseball, Flood’s drinking resumed. That spring, Flood spent most of his time off the field in his room either abusing alcohol or sleeping it off.
Flood found no relief on the playing fields of Pompano Beach. His manager, Ted Williams, was part of the problem. Flood tried to make a good first impression with Williams. “Ted is a nonconformist,” Flood remarked during his instructional league stint. “He’s unafraid of rocking the boat, of going upstream. Hell, I really like that in a man.” Williams recalled seeing Flood at the Reds’ spring training in 1957 as a young third-base prospect. Flood recalled eavesdropping by the batting cage in spring training as a young player with the Cardinals while hitting coach Harry Walker and Williams talked hitting.
On Flood’s first day in camp, he impressed Williams by hustling over to him after calisthenics.
“I’m glad you’re here,” Williams said, “but more important, I’m glad you’re back in baseball. This is where you should be.”
Williams meant in baseball, not with the Senators. He opposed Flood’s lawsuit and did not think Flood could be a useful player anymore. But now Curt Flood was Ted Williams’s problem.
Williams indoctrinated Flood the way he did every new player—he talked hitting. He asked Flood where the good right-handers pitched to him. Flood pointed to the outside corner. “I thought so,” Williams said. “That’s what I would do if I was managing against you. You’re a good opposite-field hitter, so I’d pitch to your strengths and defense against it. You’re going to get your share of hits that way, but the other club has to depend on its defense to hold the damage to a minimum.”
