A Well-Paid Slave (18 page)

In his opinion in the 1949
Gardella
case, Judge Jerome Frank wrote that the reserve clause “results in something resembling peonage of the baseball player” and “possesses characteristics shockingly repugnant to moral principles that, at least since the War Between the States, have been basic in America, as shown by the Thirteenth Amendment to the Constitution, condemning ‘involuntary servitude.' ” Frank foreshadowed Flood's “well-paid slave” comment by writing that “if the players be regarded as quasi-peons, it is of no moment that they are well paid; only the totalitarian-minded will believe that high pay excuses virtual slavery.”

During the 1960s, other people compared the reserve clause and the plight of black athletes to slavery. No one, however, had done so in the context of suing America's national pastime. The reaction to Flood's comments reflected a backlash against the idealism of the 1960s. The public's distaste for the perceived excesses of the civil rights and antiwar movements seemed to come to a head over a rich black athlete portraying himself as a slave. Flood's “well-paid slave” remark turned America against him. The media seized on it. The public vilified him for it.

Before returning to St. Louis after three days in New York, Flood and his St. Louis lawyer, Allan Zerman, met their new legal team. Goldberg had enlisted one of Paul, Weiss's top litigation partners in Jay Topkis. The firm's most senior antitrust lawyer, Topkis was also regarded as one of its best brief writers. They were joined by two recent Yale law graduates, Max Gitter and Bill Iverson.

The major decisions facing Flood's legal team included where and when to file a lawsuit and what type of lawsuit to file. They settled on federal district court in Manhattan, the home of the commissioner's office. They gave themselves less than two weeks to do it. And they decided to file both a request for a preliminary injunction and a complaint.

The purpose of a preliminary injunction was twofold: First, it asked the court to prevent Major League Baseball from enforcing Flood's trade to the Phillies. This would allow Flood either to play for the Cardinals or to become a free agent. Either way, Flood could play baseball in 1970. Second, and more important, the injunction placed Flood's case on the fast track for trial. A judge would hear from both sides before deciding whether to grant or deny the injunction. Although the chances of the court granting Flood an injunction were low because he was required to show an extremely high likelihood of winning his case, the injunction hearing moved up Flood's case on the trial judge's docket.

Flood's complaint declared war on the reserve clause. It named commissioner Bowie Kuhn, league presidents Chub Feeney and Joe Cronin, and the 24 major league teams as defendants. The lawsuit claimed that the reserve clause violated two federal antitrust laws; the state antitrust laws of New York, California, and several other states; and the common law. It also included separate antitrust claims against Anheuser-Busch for allegedly selling only its beer at St. Louis Cardinals games and against CBS because its ownership of the New York Yankees allegedly interfered with the selling of baseball's television rights. Finally, it claimed that the reserve clause violated federal statutes against “peonage and involuntary servitude” as well as the 13th Amendment's prohibition against slavery.

At least one member of Flood's legal team believed that by invoking peonage, involuntary servitude, and the 13th Amendment, they were fanning the racial flames that threatened to engulf Flood's case. The goal of Flood's lawsuit was to persuade the Supreme Court of the United States that baseball did not warrant an exemption from the antitrust laws and that the reserve clause violated those laws. The goal was not to prove that Curt Flood was a $90,000 slave. Goldberg, however, insisted on the 13th Amendment and peonage claims. The 13th Amendment claim added a constitutional dimension to the case and did not depend on baseball's status under the antitrust laws. By invoking slavery, peonage, and involuntary servitude, the complaint highlighted the injustice and immorality of the current system.

Flood's complaint sought $1 million in damages. If Flood won at trial and proved all his damages, federal antitrust law would automatically triple his damages award to $3 million. The money, however, was an afterthought. Zerman and Max Gitter estimated the $1 million figure based on Flood's possible future earnings. Flood neither knew nor cared about the amount of damages. Miller told him repeatedly that he would never see any money. Flood knew that he would never recover his 1970 salary of at least $90,000. “Sometimes money's not that important,” Flood told the
St. Louis Globe-Democrat
on January 6. “I know it sounds corny, but that's the way I feel.”

Zerman and Flood returned to New York City in mid-January to sign the complaint and an affidavit accompanying the injunction request, respectively. On January 16, civil action number 70 Civ. 202,
Curtis C. Flood v. Bowie K. Kuhn
,
et al.
, was filed in the clerk's office of the United States District Court for the Southern District of New York. The 17-page complaint also contained five exhibits: the Uniform Player Contract signed by Flood and the Cardinals, the notice of transfer of Flood's contract to the Phillies and accompanying letter from Bing Devine, and the letters exchanged between Flood and Kuhn. The 35-page injunction request was accompanied by affidavits signed by Flood and Miller asking the court to nullify Flood's trade to the Phillies.

The motions judge on duty that day, Judge Dudley B. Bonsal, ordered the team owners to appear in his courtroom on January 20 to respond to Flood's request for a preliminary injunction. The owners received a copy of Flood's complaint and Judge Bonsal's order later that afternoon while seated across the negotiating table from Miller and several players. Lou Carroll, who had resumed his role as National League counsel, exploded. He leaped up from the table and accused Miller of undermining their efforts to negotiate a new labor agreement and of violating the old one. Miller calmly replied that if the owners were prepared to modify the reserve clause, then Flood would drop his lawsuit.

“I just wanted to raise the question,” Carroll responded.

Miller realized that Carroll's anger had been more calculated than real. Carroll was merely testing out legal arguments at the negotiating table.

While Miller sparred with Lou Carroll, Flood sat in a large paisley armchair in the lobby of the Warwick Hotel and answered reporters' questions. He waved at passersby as photographers snapped pictures of him. Dressed in a dark double-breasted herringbone suit and a white shirt with cuffs, he wore a World Series ring and a gold watch given to him by a female fan on one hand and a gold pinky ring on the other. He looked like visiting royalty sitting on a throne.

Flood was the talk of the sports world. “Baseball Is Sued Under Trust Law” declared the front page of the next day's
New York Times
. Leonard Koppett wrote the story. Inside the paper, George Vecsey wrote a profile of Flood accompanied by a photo of Flood with the portrait of Dr. King. Nearly every newspaper in the country ran at least one story about Flood's lawsuit.

The day after Flood filed his lawsuit, the owners issued a two-page press release claiming that Flood's lawsuit was trying to destroy baseball. The statement was released under the names of American League president Joe Cronin and National League president Chub Feeney. Cronin was interviewed by telephone on Howard Cosell's January 3 show and told the television audience that “the reserve clause is part of baseball. It has stood the test of time.” He knew from experience how it worked. As the player-manager of the Washington Senators in 1934, Cronin had been sold by his uncle-in-law, Senators owner Clark Griffith, to the Boston Red Sox for $225,000. Cronin's and Feeney's statement predicted “chaotic results” if Flood's lawsuit was successful. “Without the reserve clause,” the statement said, “the wealthier clubs could sign an unbeatable team of all-stars, totally destroying league competition.” The poorer, weaker teams would fold. The scouting and minor league system would no longer be profitable. Trades would be “impossible” if player consent were required. “Professional baseball,” the statement concluded, “would simply cease to exist.”

The opening of Cronin's and Feeney's statement emphasized the “well-paid” part of Flood's “well-paid slave” remark, characterizing him as a “highly paid star” who had “contributed much to and obtained much from baseball.” The reserve clause, the statement said, “permitted players such as Curt Flood to reap rich personal rewards.” Reiterating Lou Carroll's comments at the negotiating session, Cronin and Feeney also accused the Players Association of violating the labor agreement by not using its best efforts to enforce the Uniform Player Contract. Two days later, Miller charged Cronin and Feeney with issuing a “phony” statement. During labor negotiations in 1968, the players had asserted that the reserve clause was illegal and therefore the players could not use their best efforts to honor an illegal provision.

Cronin's and Feeney's comments polarized the public debate. The back page of the
New York Daily News
proclaimed: “Curt Win Kills Baseball.” In the
New York Times
, Leonard Koppett accused both sides of overstatement: the owners for claiming that the only alternative to the reserve clause was “chaos”; the players for framing the debate in terms of “freedom” and “slavery.”

Kuhn remained conspicuously above the fray. The commissioner sent Cronin and Feeney to do his dirty work for him. It was Kuhn who had asked Cronin to participate on Cosell's January 3 program, declining to appear himself because he “occupie[d] a judicial position.” Kuhn still believed that he could swoop down like his hero, Judge Landis, and resolve at least part, if not all, of this mess.

In January, Kuhn and his lawyer, Paul Porter, met with Goldberg, Topkis, and Moss for the first of several times to try to resolve Flood's lawsuit. Goldberg spoke on Flood's behalf. Kuhn spoke for the owners. Goldberg insisted that Flood should have the right to negotiate with any team. Kuhn said Flood's contract did not permit it. Goldberg countered that the contract was illegal. “I could not communicate with Goldberg, whose starchy, formalistic assertions left little room for even polite conversation,” Kuhn later wrote. “I almost wished everybody would go away and let me talk to Miller. Mr. Justice Goldberg sailed off, leaving me to wonder if he had not somehow managed to top even my well-honed reputation for pomposity.”

Mr. Justice Goldberg was not about to let some midlevel former Wall Street partner back his client into a legal corner. At one meeting, Kuhn told Goldberg that Flood could continue to play while suing base-ball. Goldberg replied that if Flood played, he would not have suffered any harm and his lawsuit would be moot.

“You mean, Mr. Justice, that you are advising Flood to not play?” Kuhn asked.

“If you want to do any quoting,” Goldberg quickly replied, “you had better be accurate in what you quote. The decision about whether Mr. Flood will play will be made by Mr. Flood. I have given him legal advice as to the impact of his decision. The decision is his.”

On January 8, Phillies general manager John Quinn sent Flood a contract for $90,000. Flood announced that he would not sign it. Quinn still believed that Flood would play baseball in 1970, just not for Philadelphia.

“Is it true that negotiations are out—that the suit will proceed regardless?” Kuhn asked Goldberg.

“You have a terrible habit of misquoting,” Goldberg said. “It is my understanding that if appropriate modifications can be made through negotiation, they would satisfy Curt Flood. Therefore, if you want to carry out your legal right to negotiate, please do so.”

In one of his few public comments about the case, Kuhn declared at the Phillies' January 7 Newsy Notes Club meeting (at which the Phillies had intended to announce that they had signed Flood) that Flood's lawsuit was a tactical mistake. Kuhn said if he were advising the Players Association, he would not file a lawsuit that could jeopardize ongoing negotiations about the reserve clause as part of the new labor agreement.

A labor negotiation session a few weeks earlier in New York City had revealed the ridiculousness of this logic. Miller and Moss met with the owners' lead negotiator, John Gaherin; Cronin; Feeney; American League counsel Sandy Hadden; and Lou Carroll, the National League counsel. Four players also were seated around the negotiating table: Joe Torre of the Cardinals, Steve Blass of the Pirates, Ed Kranepool of the Mets, and Jim Bouton of the Astros. A few months before his book
Ball Four
turned the baseball establishment on its ear, Bouton made waves during the late-December negotiation session.

Bouton asked Lou Carroll if the players could be declared free agents at Social Security retirement age.

“What age do you mean?” Carroll asked.

“Age 65,” Bouton said.

“No,” Carroll replied, “because then you would get your foot in the door.” There was some subsequent debate about whether Carroll was joking. Miller said he was not, because Gaherin reiterated Carroll's concern that the players would use that concession to “disturb the entire system.” The only way the players were going to get the owners to modify the reserve clause was for someone to take them to court.

Neither Flood nor Kuhn showed up for the first hearing in the case. On January 20, Judge Bonsal granted the owners a two-week delay to respond to Flood's request for an injunction. The lawyer for the Phillies told Judge Bonsal that they would allow Flood to report to spring training without prejudicing his lawsuit. “That's exactly what he doesn't want to do,” Topkis replied. “He lives in St. Louis, has a business there and doesn't want to be treated like cattle.”