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thicker.”
–Curt Flood
earned. By both his peers and acclimation in the media he was thought
to be among the best at what he did. If only it really were that simple.
But Curt Flood did not have an ordinary job in an ordinary time.
He was a black baseball player in the late 1960’s. The rules in all of
Phillies.1 For as long as baseball had been America’s past time players
were traded from one team to another, but Flood felt that he deserved
that baseball owners had with all players. The standard player’s
contract dates back, in its original form, to the late 1870s. It was
around this time that baseball owners realized the value of players to
1
Lomax, Michael E. (2004). Curt Flood Stood Up for Us: The Quest to Break Down Racial Barriers and
Structural Inequality in Major League Baseball. Culture, Sport and Society. 6 (2-3) 44-70.
2
Snyder, Brad. (2006). A Well-Paid Slave: Curt Flood’s Fight for Free Agency in Professional Sports. New
York: Viking Penguin.
3
Flood, Curt & Carter, Richard. (1971). The Way It Is. New York: Trident Press.
2
best players perpetually employed if only for the sake of keeping the
were effectively in competition with each other for both fans and for
players. The only league still in existence from this time period is the
present day.5
industries that the Sherman Act might affect. That would change
Regulators began enforcing the Sherman Act, and its power was
4
Balfour, Alan & Porter, Philip K. 1991. The Reserve Clause in Professional Sports: Legality and Effect on
Competitive Balance. Labor Law Journal. January 1991. 8-18.
5
Balfour & Porter 8.
6
Sherman Antitrust Act, ch. 647, 26 Stat. 209, 15 U.S.C. § 1–7 (1890)
7
Ibid.
3
meant that the player was beholden forever to the team that initially
signed him to a contract. The player could only change teams if he was
human being consider that perhaps the Boston Red Sox sold perhaps
the Reserve Clause affected every player, not just the superstars. The
only way a player’s value, meaning his salary, increased was through
excellence on the playing field. So, what if a very good player but had
possibly only chance, is, Lou Gehrig. The now-legendary first baseman
was on the New York Yankees for two full seasons before an opportunity
8
Ibid.
9
Martin, Philip L. 1972. The Labor Controversy in Professional Baseball: The Flood Case. Labor Law
Journal. September 1972. 567-572.
10
baseball-reference.com.
4
give Gehrig a chance. As most baseball fans know, once in the lineup,
The year after being replaced by Gehrig, Pipp was traded to the
fates, but more often the players were at the whim of the managers or
owners.1112
Still, even in the early part of the twentieth century not too much
of the general public was sympathetic with baseball players, who, after
all, were paid to play a game.13 They could work 14 to 16 hours a day
in a factory, mill or mine. The players of the time knew this and they
also knew that rejecting a contract might not guarantee a counter offer
manual labor.
came time to negotiate your contract for the coming season you were
you met with the owner. If you did not like what the owner offered, you
11
Balfour & Porter 10-12.
12
baseball-reference.com.
13
Balfour & Porter 10-12.
5
could not shop your services elsewhere. The owner’s offer was quite
earlier.
If you did not like the weather in the city where you played, then
that was too bad. If you did not like your boss or your co-workers or the
way the team was run, also too bad. Your only real option was to retire
slavery, Curt Flood and his legal team felt the same way. The
crime whereof the party shall have been duly convicted, shall exist
antitrust exemption that baseball had been granted. Part and parcel of
In 1913, there were two major leagues for baseball players, the
had been formed in 1901.16 There was no real relationship between the
14
Balfour & Porter 10-12
15
The U.S. Constitution and Fascinating Facts About It (7th Ed.). (2006). Naperville, IL: Oak Hill
Publishing Company.
16
baseball-reference.com.
6
connection between the two leagues came in the fall, when the
League teams attempted to sign stars from the other leagues. The
most notable player to sign with the Federal League was the Hall of
Fame pitcher Walter Johnson. Before the ink was dry on his new
from the other leagues to play for them. By 1915 the league folded.
teams, other terms were merged into one and became minor league
financial losses. The Terrapins filed suit against the National League
17
Helyar, John. (1995). Lords of the Realm: The Real History of Baseball. New York: Ballantine Books.
18
Snyder 20.
7
key part of the Terrapins’ argument was that the Reserve Clause
leave a National League or American League team and play for a rival
League, actually won and were awarded $80,000. Under the provisions
of the Sherman Act antitrust awards were tripled making the amount
$240,000, which equates to just over $5.3 million in 2008 dollars, but it
was hardly enough money to revive a team, let alone an entire league.
The case eventually made its way before the Supreme Court in
favor, with famed jurist Oliver Wendell Holmes writing the opinion that
genuinely agree that the Supreme Court’s decision was the correct one
given the laws at the time.22 Legal experts felt that the Reserve Clause
19
Ibid.
20
Snyder 20.
21
Federal Baseball Club v. National League, 259 U.S. 200 (1922)
22
Martin 567.
8
the latter, when The Curt Flood Act of 1998 was passed.23 The next
Danny Gardella was an outfielder for the New York Giants who,
.272 in 1945.24 The 1945 season was the last season that baseball was
Ted Williams and Joe DiMaggio, were involved in the war effort and
returned to the game in 1946. Many marginal players were pushed out
of baseball, but Gardella was not. Even though officials with the Giants
felt that most of his success was due to the lack of quality pitching
$5,000 for the 1946 season. But Gardella never signed and showed up
23
Curt Flood Act of 1998, Pub.L. 112 Stat. 2824, 15 U.S.C. § 27 (1998). Although passed largely as a
tribute to Flood, who had died a year earlier, the act stripped baseball of what little antitrust immunity that
remained.
24
baseball-reference.com.
9
from the Negro League. Earlier that year, Jackie Robinson had broken
baseball’s color barrier and the better players in the Negro League
a Negro League team was about to play against a team with a player—
announcement made over the public address system before the game
began that warned players that if they participated in the game they
would be added to the Restricted List. Among the players on the Negro
League roster was the legendary pitcher Satchel Paige, who would
ultimately play in the Major Leagues the following year. Paige, in his
early forties at the time, realized that his window of opportunity was
closing, and any incident that delayed his path to the major leagues,
assume that Paige did not argue when the game was canceled.26
the first player to legally challenge the Reserve Clause. His initial case
25
Snyder 21-23.
26
Snyder 26.
10
But Gardella appealed the dismissal and his case was accepted
by the United States Court of Appeals, Second Circuit. The court found
in Gardella’s favor, 2-1, and sent the case back to trial in District
Court.28
Appeals Judge Jerome Frank wrote in his opinion that the Reserve
Clause
Faced with the possibility that the Reserve Clause might be found
—who made Robinson the first black player in the major leagues—
spoke about the benefits of the Reserve Clause. Mickey Owen, who had
the time.30
27
Gardella v. Chandler. l72 F. 2d 402, 408. (United States Court of Appeals Second Circuit. 1949).
28
Ibid.
29
Snyder 105.
30
Snyder 26.
11
the major leagues with the St. Louis Cardinals—for one game and one
at bat in 1950.31
From 1949 to 1953 the New York Yankees were the best team in
major league baseball and there was not really a close second. They
the maximum seven games only once.32 While this was a glorious time
system might have felt differently. Making the Yankees’ roster was only
for the excellent few, and they had little room for those players who
(the highest classification in the minor leagues and therefore one step
from the major leagues) affiliate, the Newark Bears. Before the 1950
season, the Newark team went out of business and Toolson was sent to
31
Snyder 27.
32
baseball-reference.com.
12
Toolson refused to report to the Binghamton team and filed suit against
of trade.33
case, Toolson v. the New York Yankees, made its way to the Supreme
Court anyway. While the court found in favor of baseball (one of the
of 7-2 its short, unsigned opinions at the conclusion of its ruling were
telling.34
baseball had operated under the presumption that it was exempt from
antitrust regulations for over 30 years, the court itself was not in
position to legislate from the bench. In short, the court believed the
signed a contract with a team from a rival league. Upon his retirement,
33
Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953).
34
Toolson v. New York Yankees, Inc..
35
Ibid.
13
Radovich filed suit against the NFL. While the court agreed in principle
employee, they were countered by the fact that he was still paid a
to find work since the rival league he had signed with as a player had
When Curt Flood was traded from the St. Louis Cardinals to the
the National League, having won the Gold Glove—the top defensive
average of .295 and made the All-Star team three times during the
1960s.38
fans associated Flood with one of the most glaring mistakes in baseball
history.
36
Radovich v. National Football League, 352 U.S. 445 (1957).
37
baseball-reference.com.
38
Ibid.
14
The 1968 World Series pitted his Cardinals (who had won the
series in 1964 and 1967) against the Detroit Tigers. The Cardinals
jumped out to a three to one lead in the first four games, but the Tigers
Bob Gibson, pitching, the game was tied 0-0. With two men on and two
out for the Tigers, Flood misplayed an apparently simple fly ball that
allowed both men to score and put the Tigers in front 2-0. The Tigers
went on to win the game 4-1 and the series four games to three.39
about issues beyond baseball and, more than most players at the time,
had an acute sense of the social and political upheaval taking place in
the world around him. He was well aware of the black power salute by
American sprinters John Carlos and Tommie Smith during the 1968
39
Ibid
15
21 throughout his career, which was half of the 42 that Robinson had
worn.40
countless racial epithets and becoming the most popular player on the
team Robinson was traded to the New York Giants in the winter of
1956. Rather than report to the archrival Giants, Robinson retired from
baseball.41
traded to the Phillies Flood never considered playing for them. Not only
were the Phillies the worst team in the National League, Philadelphia
players.42 Flood simply would not go from a winning team where he felt
resented that he did not have a choice in the matter. He would either
40
Flood 29.
41
Snyder 49.
42
Snyder 13.
16
the pensions for current and former players. Once he was traded, he
sought the counsel of the head of the Association, Marvin Miller, and
told him of his intentions.44 Miller felt that defeating baseball’s Reserve
Clause was critical to enhancing the player union’s power and that
the same Bowie Kuhn who had helped represent baseball in the
First, Flood wanted the Association’s public support when his suit
that Flood’s challenge was in their best interest. Although they came to
43
Flood 157.
44
Snyder 24.
45
Snyder 24.
46
Snyder 93-96.
47
Snyder 73-74.
17
more on racial politics rather than the ultimate defeat of the Reserve
done.50 Miller had told Flood that it was critical that he follow the suit
all the way through and then set out assembling the best legal team
possible.51
one of the country’s best writers of court briefs, and Flood’s personal
was also running for governor of New York when Flood’s civil trial
unexpected dogfight.53
48
Maraniss, David. (2006). Roberto Clemente: The Passion and Grace of Baseball’s Last Hero. New York:
Simon & Schuster.
49
Snyder 75-77.
50
Ibid.
51
Snyder 27.
52
Snyder 147.
53
Ibid.
18
baseball’s lead counsel Mark Hughes and Lou Carroll, Flood seemed
edgy and inarticulate. The Judge, Irving Ben Cooper, did not help
slave.”55
Flood for much the same reason. Only two sportswriters of note, Red
Smith and Jim Murray, supported Flood. Aside from them, he was
54
Ibid.
55
A $90,000 salary in 1970 would be equivalent to over $500,000 in 2007. At the start of the 2008 season
the average (italics added) salary of a major league baseball player was $3.15 million.
Source: Barry M. Bloom, www. mlb.com, 04/01/08.
56
Snyder 113-114.
19
Hall of Fame first basemen Hank Greenberg, who had been the
the course of his 17-year career with the Detroit Tigers, was also called
ownership he would play one season for them and then retire, which is
from baseball, also testified for the plaintiffs.59 In a twist, team owner
how the Reserve Clause denied him the opportunity to sign players
opinion on August 12th. Cooper found against Flood. The judge wrote
decision and Flood’s claims based on state and common law were
57
Snyder 160-165.
58
Snyder 165-168.
59
Snyder 168-172.
60
Snyder 183-188.
20
trumped by federal law. Further, he felt that, over the course of the
trial, he had heard no testimony that was credible enough in his mind
former Negro League player named Monte Irvin, to drop his claim. The
Phillies also attempted to sign Flood to a contract, but Flood did not
budge.62
By the time the 1971 season was set to begin, Flood was in dire
financial straits. Against the advice of his lawyers, Flood agreed to let
While his body had given way, Flood’s pursuit of justice had not.
He filed an appeal that eventually made its way to the Supreme Court
in 1972.
It was the first and only challenge to the Reserve Clause that
reached the Supreme Court, a fact not lost on baseball owners, and a
61
Snyder 191-192.
62
Snyder 200-201.
63
Ibid.
64
Snyder 228-233.
21
second change included what was called the 10-5 Rule. Any player with
at least 10 years of experience and at least five with his current team
could veto a trade. Obviously, had the 10-5 Rule been in place when
Curt Flood’s day before the Supreme Court came on March 20,
1972 when Arthur Goldberg spoke on his behalf. Flood’s legal team had
put extensive planning into their presentation before the court, and
However, when Goldberg took the floor he froze. Perhaps he was rusty
his peers instead of with them. Perhaps he felt unprepared. He left the
planned strategy and instead recited various facts and statistics about
On, June 19, 1972, Flood vs. Kuhn was decided by a 5-3 count in
decisive vote. Justice Lewis Powell had to excuse himself from the
65
Snyder 178.
66
Snyder 268-270.
22
Douglas and Chief Justice Warren Burger initially found for Flood.
Stewart, Byron White voted in baseball’s favor. Stewart had led the
court, like previous courts, felt it could not overturn the 1922 Federal
Baseball Team case and felt that antitrust exemptions were the work of
Congress.68
As the senior member of the majority it fell upon him to write the
the vote could wind up a deadlock, it was best to give the opinion to a
justice who was not as firm in his belief as he was. He chose Blackmun,
a devout baseball fan. It was only Blackmun’s second full term on the
Supreme Court. His opinion was essentially one that fawned over the
While the major league baseball owners won the battles in court,
it was clear that the Reserve Clause, as it had been in use for nearly
67
Snyder 285.
68
Snyder 283-289.
69
Flood v. Kuhn, 407 U.S. 258 (1972)
23
“Catfish” Hunter’s contract was invalid making him the first free agent
with the Los Angeles Dodgers and Montreal Expos, respectively. Both
reverted to their 1974 deals).71 McNally was an aging pitcher who was
forced into retirement in June due to injury. But, Messersmith went 19-
1979.73
granted free agency after six years of service with the same major
league team.74
70
Helyar 143-149.
71
Helyar 181-190.
72
Helyar 191.
73
baseball-reference.com.
74
Snyder 319.
24
It is hard to say that Curt Flood sacrificed his career for the sake
Curt Flood was not the first to challenge the Reserve Clause, but
he would be the last. No player, or any other individual for that matter,
his courage came when Congress, as it had been urged to since 1953,
75
Snyder 346.
76
Curt Flood Act of 1998.
25
Bibliography
Flood, Curt & Carter, Richard. (1971). The Way It Is. New York: Trident
Press.
Helyar, John. (1995). Lords of the Realm: The Real History of Baseball,
New York: Ballantine Books.
Lomax, Michael E. (2004). Curt Flood Stood Up for Us: The Quest
to Break Down Racial Barriers and Structural Inequality in
Major League Baseball. Culture, Sport and Society. 6 (2-3)
44-70.
McGrath, Ben (2007, October 29). The Extortionist. The New Yorker. 56-
67.
Snyder, Brad. (2006). A Well-Paid Slave: Curt Flood’s Fight for Free
Agency in Professional Sports. New York: Viking Penguin.
The U.S. Constitution and Fascinating Facts About It (7th Ed.). (2006).
Naperville, IL: Oak Hill Publishing Company.
Flood v. Kuhn. 309 F. Supp. 793 (Southern District of New York. 1970.)
Flood v. Kuhn. 443 F.2d 264 (United States Court of Appeals Second
Circuit, 1971)
Curt Flood Act of 1998, Pub.L. 112 Stat. 2824, 15 U.S.C. § 27 (1998)
Sherman Antitrust Act, ch. 647, 26 Stat. 209, 15 U.S.C. § 1–7 (1890)