A Well-Paid Slave

by Brad Snyder

  Even though they were no longer law partners, Goldberg left it up to Topkis to settle the bill with Marvin Miller. Topkis came away from Flood’s trial with a deep respect and admiration for Miller. They shared the sting of the Supreme Court defeat and remained friends long after the bill had been settled. The Players Association, Topkis wrote Miller, owed Paul, Weiss $100,000 ($25,000 had already been paid, and Goldberg did not charge the union an additional $34,000 for his billable time). In the last line of his letter to Miller about the bill, Topkis wrote: “The only bad thing about the case from my point of view was losing it—everything else aside, Mrs. Lincoln, how was the show?”

  Bowie Kuhn reacted to the decision with a lawyer’s caution, describing it as “constructive.” “The decision opens the way for renewed collective bargaining on the reserve system after the 1972 season,” he said in his prepared statement to the press.

  Miller lacked Kuhn’s faith that “renewed collective bargaining” would free the players from the reserve clause. “Renewed?” Miller said to Red Smith. “It has never begun.” Miller was determined to press the owners for modifications to the reserve clause during the next round of labor negotiations, but he knew from his experiences not to be overly optimistic.

  Ever the strategist, Miller hoped “that the Congress will accept the Court’s clear invitation to act in this matter and we will be cooperating fully with the Congress to achieve that result.” Howard Cosell, testifying before the Senate Commerce Committee the day Flood’s decision came down, remarked: “The original reserve clause is so old I think it must have been written by William of Orange.” Senator Sam Ervin (D-NC), the future star of the Watergate hearings, expressed similar sentiments before a House subcommittee two months later. “I hope you will all join with me in trying to pass this legislation to help vindicate the courageous sacrifice of Curt Flood so that those athletes that come after can say truthfully and proudly that ‘I am not a piece of property,’ ” Ervin said. It “is easy to become emotional about the plight of American professional athletes . . . even though their numbers are small, they are slaves. Even though many are well-paid slaves.” Miller’s hope and Cosell’s and Ervin’s testimony notwithstanding, Congress did nothing. The union was no match for baseball’s lobby in Washington. “By the time the gentlemen on Capitol Hill get around to rendering a decision,” Chicago Sun-Times columnist Bill Gleason wrote, “Curtis Flood will be an old gentleman living in retirement.”

  The Court’s decision landed Flood on the front pages of the New York Times and Washington Post and on the network news. It was the last time he was foremost on the mind of America. After that day, most of the country forgot about him.

  The press ripped into the decision. Red Smith, now writing for the New York Times, labeled it a “cop-out” and “a disappointment for several reasons that have nothing to do with Curt Flood’s bid for $3-million in damages. . . . It is a disappointment because the highest Court in the land is still averting its gaze from a system in American business that gives the employer outright ownership of his employees. . . . It is a disappointment because this Court appears to set greater store by property rights than by human rights.” It was not just Red Smith taking on the establishment. The New York Times, Washington Post, Washington Evening Star, Baltimore Sun, Minneapolis Star Tribune, and St. Louis Post-Dispatch all wrote editorials condemning the decision. Most sports columnists blasted the Court. Only backers of the baseball establishment— the Sporting News, Dick Young, Bob Broeg, Joe DiMaggio, and Ted Williams—applauded the ruling.

  Over the years, Blackmun’s “sentimental journey,” as he described Part I, took heat from all corners. It started with the sportswriters. “Presumably,” Los Angeles Times columnist Jim Murray wrote, “the decision was handed down in the form of bubble-gum cards.” Blackmun later said he was “amused” by “the complete antagonism of the sportswriters in Washington and New York. I think they felt I had impinged on their turf.” Blackmun’s opinion, however, helped turn the conservative sporting press in Flood’s favor.

  Then came the investigative reporters. Woodward’s and Armstrong’s book, The Brethren, revealed that Stewart had been “embarrassed” about assigning the Flood opinion to Blackmun. In December 1979, one of Blackmun’s law clerks, Bill Murphy, read excerpts of the book in Newsweek. The next morning at breakfast, he alerted Blackmun to Stewart’s comments. Murphy also brought in some old baseball cards from his personal collection. During oral argument, Blackmun passed Stewart the cards of several former Reds players, including Gus Bell, Vada Pinson, and Frank Robinson, along with a handwritten note mentioning the book’s report that Stewart had been “embarrassed.” Stewart replied that it was “nonsense.” Blackmun was not so sure. Nearly 10 years later, Woodward revealed Stewart as one of the book’s confidential sources. In a September 1995 oral history, Blackmun was asked about Stewart’s remark:

  [W]hen I talked to him about it, he was so emphatic in his denial of having made that statement, and I wondered at the time, because it would not have been out of character for him to make that statement. I think Potter was always critical of me from the very beginning, to a degree. I don’t know whether he thought I was incapable of being on the Court or shouldn’t be there or what, but we were in opposition on a number of occasions, but other times not. We were always very friendly together. I always had to watch the writing, as far as Potter was concerned.

  Blackmun and Stewart carried on a friendship through their mutual love of baseball, passing notes about the game while on the bench and lending each other books on baseball history.

  Legal scholars picked up where the press and Stewart left off in criticizing Blackmun’s Flood opinion. Professor William Eskridge called it “an almost comical adherence to the strict rule against overruling statutory precedents.” Eskridge was not alone; most scholars blasted Blackmun’s opinion. The reason for the Court’s decision, according to Eskridge, had nothing to do with its respect for stare decisis; it had everything to do with Blackmun’s ode to baseball and the list of names in Part I.

  The Washington legal community derided Blackmun’s list. A former Supreme Court clerk wrote a parody of the opinion, privately circulated among Washington lawyers, titled “Baskin v. Robbins.” “There are many great ice cream flavors,” the mock opinion began as it listed off flavors from chocolate, vanilla, and strawberry to rocky road. “The list seems endless.”

  After the Court’s decision came out, a law clerk alerted Blackmun to a glaring omission from his list of names—Mel Ott. Blackmun insisted that Ott, the New York Giants right fielder who hit 511 home runs, was on the list. “I shall never forgive myself,” Blackmun said. He was so upset that he scribbled “Mel Ott?” in the margin of his copy of the U.S. Reports containing the Flood decision. Blackmun kept a gift in his chambers from his law clerks—a Mel Ott model Louisville Slugger bat mounted on an engraved plaque bearing the justice’s reaction upon learning of Ott’s omission. The bat was one of Blackmun’s prized possessions.

  Blackmun staunchly defended his “sentimental journey” and proclaimed Flood v. Kuhn his favorite opinion. “[I]t’s been a great conversation piece,” he said. “I can go to Chicago, and somebody will come up and say, ‘I read your list of the great heroes of baseball, but why didn’t you include Joe Zilch?’ And then we’d have a conversation going as to why I didn’t include Joe Zilch. He didn’t bat well enough over ten years or something. Sure.” Talking baseball was a welcome respite from the threats and hate mail Blackmun began to receive for writing the majority opinion in the landmark abortion case, Roe v. Wade, the following term.

  Blackmun enjoyed being viewed as the Court’s number one baseball fan. A week after his Flood opinion came out, a California man sent Blackmun his article about the connections between the supposed founder of baseball, Alexander Cartwright, and the Freemasons. In 1973, a friend from Minnesota sent him poems he had written about “Casey at the Bat,” Blackmun’s favorite poem. Two years later, Judge Roger Robb of t
he D.C. Circuit sent him a University of Pennsylvania Law Review article, “The Common Law Origins of the Infield Fly Rule.” The 47th member (out of 700) of the Emil Verban Memorial Society, a who’s who of Washington, D.C.-based Chicago Cubs fans, Blackmun had grown up rooting for the Cubs before becoming a Twins fan and regularly entertained former Cubs players in his chambers. The criticisms from the press, the legal community, and his fellow justices about his Flood opinion left him unperturbed. “I would do it over again because I felt that baseball deserved it,” he said.

  Blackmun failed to see the consequences of his conversation piece on the Court. More so than with the legislative or executive branches, the Court’s legitimacy depends on the people’s confidence in the institution’s decisions. As Alexander Hamilton, one of the framers of the Constitution, wrote in The Federalist Papers, the judiciary “will always be the least dangerous [branch] to the political rights of the Constitution” because it “has no influence over either the sword or the purse. . . . It may truly be said to have neither FORCE nor WILL, but merely judgment.” Flood v. Kuhn represented a lapse in the Court’s judgment. Some of the justices seemed to have bowed to the aura and mystique of baseball as the national pastime rather than striving to correct two of the Court’s erroneous decisions. They compounded the errors in those decisions and compromised the Court’s integrity. A footnote in Marshall’s Flood v. Kuhn dissent encapsulates the problem with Blackmun’s “sentimental journey”: “‘[A] decision contrary to the public sense of justice as it is, operates, so far as it is known, to diminish respect for the courts and for law itself.’ ”

  In the years after Flood v. Kuhn, Blackmun developed into a confident and extremely liberal justice. He was proud of his reputation as someone who stood up for “outsiders, or the little people”—whether they were women, abused children, homosexuals, Native Americans, or death row inmates. “I think there’s a tendency in judicial writings to overlook the human-being factor in almost—well, in most cases,” he later said. In writing the majority opinion in Flood v. Kuhn, however, Blackmun lost himself in the romance of baseball and forgot about the struggles and sacrifices of Curt Flood.

  CHAPTER SEVENTEEN

  The day the Court’s decision came down, Marvin Miller called Curt Flood in Majorca with the news. Miller had played the role of pessimist in chief about Flood’s lawsuit from day one. But Miller still hated to lose, and privately, he was disconsolate. On the phone, Flood tried to cheer Miller up. Flood’s few public comments were similarly upbeat. “Baby, I gave them one hell of a fight,” he told Newsweek.

  Curt Flood was not baseball’s first free agent. Nor did his lawsuit create free agency. But his legal battle set the stage for free agency in baseball.

  Flood’s lawsuit helped change public opinion. “What Flood v. Kuhn really accomplished,” according to Miller, “was . . . raising the consciousness of everyone involved in baseball: the writers, the fans, the players— and perhaps even some of the owners.” It certainly helped unite the players. Before the 1969 season, some players had ignored the union’s edict to refuse to sign new contracts until the resolution of a pension dispute. Three years later, the players displayed so much unity during pension negotiations that they initiated a 13-day strike that delayed the start of the 1972 season. The change in the media’s tone—from its vilification of Flood for his “well-paid slave” remark in 1970 to its outrage over the Supreme Court’s decision two years later—was incredibly telling. The Court’s weak justifications for baseball’s antitrust exemption left the reserve system on shaky ground. Even the owners’ chief negotiator, John Gaherin, knew after reading the decision that free agency was inevitable. “After the Flood case,” Gaherin said, “it wasn’t a question of if the reserve structure would be restructured or annihilated, but when.” Gaherin tried to explain to the owners that they had won on a technical jurisdictional point, that baseball was immune from antitrust lawsuits, not on the merits of the reserve clause. That point was still up for grabs and, with Marvin Miller on the other side, seemed to be headed in the players’ favor.

  Flood’s lawsuit also made Miller’s job easier because the owners kept insisting at trial and on appeal that the reserve clause was a collective bargaining issue. Before the Flood case, the owners had refused to entertain any modifications to the reserve clause. Now the pressure was on the owners to negotiate in good faith. They could no longer reject all the players’ proposed modifications to the reserve clause without making counteroffers. If the owners failed to negotiate in good faith, they could incur the wrath of the National Labor Relations Board or the federal courts.

  This became apparent during negotiations over the 1973 Basic Agreement. Miller and the players agreed to keep the reserve clause in place for three more years but won other critical concessions. Players with two years of continuous major league service and three years of noncontinuous service would be eligible for salary arbitration, meaning they could resolve salary disputes before an independent arbitrator. Salary arbitration would bear enormous fruit in the form of increased players’ salaries. Veteran players won their first taste of freedom from unwanted trades because of a rule inspired by Flood’s objection to being traded after 12 seasons with the Cardinals. Under the 10-and-5 rule, any player with 10 years of major league service and 5 years with the same team could not be traded without his consent. The 10-and-5 rule would have prevented Flood’s trade and is often referred to as the Curt Flood rule.

  The Curt Flood rule could no longer help the person who inspired it. In Majorca, Flood worked at the Rustic Inn, a bar he owned with Ann, a woman he referred to as his wife but was only a girlfriend. Decorated with bats, gloves, autographed balls, and photographs, the Rustic Inn developed into a popular hangout for American servicemen from the Sixth Fleet. A picture of Flood from his playing days hung on the wall behind the bar. He spent most of his days drinking with the servicemen and occasionally played softball with them. The servicemen found him charming; he even entertained questions from a few enterprising newsmen.

  Flood’s Supreme Court defeat was never far from his mind. He told Bob Sheridan, an up-and-coming Miami sportscaster, that he was writing a second book about the Court’s decision. Curt expounded on some of his theories about the decision during a January 1973 conversation with Vernon Sherwin, a retired Baltimore Evening Sun news editor living in Majorca. Flood pointed out that three of the four Nixon appointees had voted against him and the fourth, Powell, had abstained. “He abstained,” Flood said, “but I sometimes wonder when he acquired the stock and whether he just abstained from voting or whether he abstained from discussing the case with the other judges.” Powell’s comments at conference and his note of encouragement to Blackmun would have sent Flood through the roof.

  Flood criticized the new labor agreement during an April 1, 1973, interview with his old friend Howard Cosell. Cosell had befriended Flood when Flood needed friends most, standing by him even after the furor over his lawsuit had subsided. He helped Flood’s business by sending him videotapes of major league games and Muhammad Ali fights to show to the American servicemen at the Rustic Inn.

  Flood was disappointed because the new labor agreement called for no negotiation over the reserve clause for three more years. “It’s been three years since I started to fight it and now three more years will go by and it’ll be at least another three years before they do anything about it,” Flood told Cosell. “I’ve given a lot of time and money to do this.” The 10-and-5 rule was not enough to mollify Flood; he wanted the end of the reserve clause. “The problem with the reserve clause is that it ties a man to one owner for the rest of his life,” he said. “There is no other profession in the history of mankind except slavery in which one man was tied to another for life.”

  Off camera, Flood and Cosell sat on the roof of the bar with the Mediterranean Sea behind them. Flood looked awful. His receding hair looked wild and unkempt. His face looked fatter. His eyes looked weary and tired. Tears came to his eyes. He
touched his head and his heart. “These are mine,” he told Cosell. “They belong to me. You can’t buy them, you can’t sell them, and you sure can’t trade them.” Flood was homesick and, according to Cosell, “[i]n spite of himself, he missed baseball.”

  Flood had already missed the funeral of the man who had taught him the most about freedom, Jackie Robinson. Before his death, Robinson was honored during an on-field ceremony before Game 2 of the 1972 World Series between the Oakland A’s and the Cincinnati Reds. The ceremony marked the 25th anniversary of Robinson’s first major league season. “I am extremely proud and pleased to be here this afternoon,” a nearly blind Robinson told the crowd, “but must admit I’m going to be tremendously more pleased and more proud when I look at that third base coaching line one day and see a black face managing in base-ball.” Robinson had been estranged from the game for so long that he may not have realized that most managers no longer doubled as third base coaches. Nine days later, Robinson died of a diabetes-related heart attack at age 53. “Jackie, as a figure in history, was a rock in the water, creating concentric circles and ripples of new possibility,” a young, Afro-wearing minister named Jesse Jackson told 2,500 mourners at Manhattan’s Riverside Church. Robinson was buried in Brooklyn beneath a gravestone bearing his own words: “A life is not important except in the impact it has on other lives.”

  In the tradition of his hero, Flood continued to stand up for his convictions, but he may not have been privy to Marvin Miller’s incremental approach to attacking the reserve clause. Even though the 1973 Basic Agreement had been signed, Miller was not going to put the fight for free agency on hold for three years. He had at his disposal a new generation of ballplayers and new weapons, foremost among them independent grievance arbitration.