A Well-Paid Slave (21 page)

“We're not interested in helping Curt Flood make more money,” New York Yankees player representative Steve Hamilton said. “We're interested in modifying the reserve clause.”

“I think he's right,” Brooks Robinson, the Baltimore Orioles' player representative, said a few weeks later. “The way I feel—and a lot of other guys feel the same way, too—the reserve clause could be loosened.”

Cardinals player representative Dal Maxvill also explained to the press the union's decision to support Flood.

Several fringe players understood Flood's freedom fight. Gene Michael, who had spent seven years behind shortstop Dick Groat and others in the Pirates organization, said: “Maybe I would have had a little more time in the majors if I could have sold my services to another club.” Orioles pitcher Pete Richert, stuck behind three 20-game winners, declared, “[a]s far as I'm concerned, I think Curt Flood deserves a lot of praise. He has guts. I don't know if I would give up a good salary for a principle. I'm behind him.”

Other fringe players, however, failed to understand how Flood's lawsuit affected them. They could not relate to a star player walking away from his big salary. “I'd play in Alaska for $90,000 a year,” Atlanta Braves reserve infielder Bob Aspromonte said. Braves pitcher Pat Jarvis agreed: “I can't understand how Curt Flood can make $90,000 and turn it down. That's a lot of money—even if you do play in Philadelphia.” Jarvis said Flood was “the wrong guy” and “a player making about $15,000 a year” would have made a better test case. No one else, however, was willing to put his career on the line.

The player reps tried to educate their fellow players and even their managers. Montreal Expos player rep Ron Brand discussed Flood's lawsuit with his manager, Gene Mauch. “I remember Gene Mauch, who I loved, was so angry at Curt Flood, because baseball was sacred to him,” Brand recalled. “I tried to explain it to him: ‘He's going to give up his career to do this. He's just looking for a rule to be changed.' [Mauch] didn't have much of an open mind about it.”

Management was not shy about bashing Flood. Braves vice president Paul Richards welcomed Flood's lawsuit. He compared players getting rid of the reserve clause to “the Pope burning down the Vatican.” “If they wipe it out, you'll see a march on Washington by baseball players trying to get legislation to get it back,” he said. Richards explained that star players would be worse off because under the current system salaries could be reduced by no more than 20 percent per season. Dodgers owner Walter O'Malley said the elimination of the reserve clause would favor his franchise because players would clamor to play in Los Angeles. “Realistically,” O'Malley said, “there would be such imbalance that the game couldn't exist.”

The angriest cries came from Cardinals owner Gussie Busch. Flood's lawsuit was the least of his problems heading into the 1970 season. His team could not come to terms with Dick Allen or pitcher Steve Carlton. With both players still unsigned in March, the Cardinals exercised their right under the reserve clause to renew their contracts automatically and demanded that the players report to spring training. Allen, whose demands ranged from $125,000 to $150,000, signed on March 12 for $90,000. Carlton, who had rejected a raise from $24,000 to $30,000, refused to budge after lowering his demands from $50,000 to $40,000. He reported to camp without a contract and on March 16 signed a two-year deal for $80,000. Carlton's holdout sent Busch over the edge:

“Instead of a sport, baseball has become a headache. I can't understand the Curt Flood case and I can't understand the Allen case.

“Baseball is in a helluva turmoil. I think one of us has to take a stand for the good of the game. I hate to be a sucker, but I'm perfectly willing to do it.

“I can't understand what's happening to our country. My hope is some other owners will have the guts to do what I'm doing—help the people reverse this thing and get them to some degree of normalcy.”

Busch ordered general manager Bing Devine to trade Carlton after the 1971 season, the first of several trades that set the Cardinals back for more than a decade.

Busch's tirade may have encouraged Cardinals assistant general manager Jim Toomey to kick Flood on his way out of the organization. “We're much better off in center field this year than we were last year,” Toomey boasted before the season. Indeed, the new Cardinals center fielder, Jose Cardenal (.293, 10 home runs, 74 RBIs), played well in 1970. Toomey may have been currying favor with management, but he did not win any friends in the clubhouse by ripping Flood. “How good was he?” Toomey asked. “If he was
that
good, do you think we'd have gotten rid of him?”

The most hurtful charge leveled at Flood was that he was Miller's puppet. Both reporters and management portrayed Miller as a Svengali who had seduced Flood into suing baseball. “I can only believe that Curt Flood's taking baseball to court is an idea prompted by Marvin Miller,” Phillies general manager John Quinn said. “I'm certain that Miller psyched Flood,” former Cardinals general manager Frank Lane said. “He has psyched everyone else.” The deepest cut of all came from the man who had made Flood's major league career possible, his old American Legion coach, George Powles. “I think Curt is being used,” Powles said. “I believe Marvin Miller, the players' union representative, put the whole idea in Flood's head.” Such comments were meant to distance Flood from a lawsuit that these men believed could ruin baseball and ruin Flood's career. But they implied that Flood was not smart enough to come up with the idea. They denied his vision, intelligence, and creativity. They suggested that a black man with only a high school education could not have done this. They underestimated him.

T
he February 3 preliminary injunction hearing was Flood's last chance of playing baseball in 1970. Only an injunction could block his trade to Philadelphia, thus keeping him in a Cardinals uniform or making him a free agent. Otherwise he remained the property of the Phillies and planned on sitting out the season.

For Flood's legal team, the hearing was a formality. None of his lawyers expected to win. Requesting an injunction was simply a way to get Flood's case before a federal trial judge as quickly as possible. The question was which judge. Judge Bonsal was only the motions judge. Another judge would be randomly assigned to the injunction hearing and probably preside over the trial. Jay Topkis hoped for anyone but the judge who was assigned to the injunction hearing—Irving Ben Cooper.

In 1962, former U.S. attorney general Herbert Brownell, several past and future presidents of the American Bar Association (ABA), and numerous lawyers testified against Cooper's nomination to the federal bench. The ABA found Cooper “not qualified.” The president of the Association of the Bar of the City of New York testified that Cooper had been “emotionally unstable for a number of years.” As a state criminal court judge, Cooper was famous for his temper tantrums on and off the bench. He berated and humiliated lawyers so frequently that they called it being “Cooperized.” In April 1955, he accused a New York City bus driver of trying to run him over as he rode his bicycle on Riverside Drive, twice called the bus driver “a son of a bitch,” and engaged him in a shoving match on the sidewalk. A few days later, Cooper ordered the driver to appear in his courtroom and then refused to accept “an apology from any scum like that.” In January 1960, when Cooper resigned as the chief justice of the court of special sessions, he cited “personal wear and tear” and “constant anxiety, irritation and strain.”

The son of a British tailor, Cooper came to the United States at age nine. He grew up in New York City and Missouri and worked his way through the University of Missouri and law school at Washington University in St. Louis. He made his name in New York City as a government lawyer investigating ambulance-chasing lawyers, dirty doctors, and Jimmy Walker's corrupt mayoral administration. Mayor Fiorello H. La Guardia appointed Cooper a city magistrate in 1938 and a year later made him an associate justice on the court of special sessions, the city's criminal court. Cooper later became chief justice of the special sessions court and, according to one Legal Aid lawyer, behaved “like a baby in a high chair.” He called her “a crummy little lawyer from the crummy little Legal Aid Society.” Cooper sometimes held special evening sessions so that he could show off for dignitaries while sentencing juvenile defendants, once telling a group of defendants, “You are all punks.” The lawyers at the criminal court referred to him as “Bellevue Ben.” One of his former judicial colleagues testified that he had “a persecution complex.”

President Kennedy, looking for a Democrat with bipartisan support, nominated the 60-year-old Cooper to be a federal trial judge at the behest of Representative Emanuel Celler (D-NY). Cooper was the most controversial of Kennedy's first 102 judicial nominees and the first to be challenged by the Senate. Kennedy sought to ensure Cooper's eventual confirmation by putting him on the bench as a recess appointment. Cooper managed to behave himself during his trial run on the federal bench, and both Republican senators from New York eventually supported his nomination. Six months, numerous appearances before the Senate Judiciary Committee, and 399 hearing transcript pages later, Cooper was confirmed. The only way to get rid of Cooper, a life-tenured federal judge, was impeachment.

Cooper spent the remainder of his judicial career trying to prove that he deserved his position. He struggled to keep his Dr. Jekyll/Mr. Hyde personality in check. He terrorized his law clerks and litigants. In 1969, Alan Dershowitz appeared in Cooper's courtroom and incurred his wrath. Cooper called Dershowitz into his chambers and for no apparent reason “screamed at me the way no judge has ever done.” Cooper usually kept his temper in check during high-profile cases. The
Flood
case was the biggest to date of Cooper's career and thus the ultimate opportunity for Cooper to prove himself.

Cooper was the worst combination for Flood—a baseball fan and a publicity hound. Although he would not be able to damage Flood's lawsuit at the preliminary injunction stage, Cooper could prevent Flood's lawyers from developing a good factual record as the case made its way to the Supreme Court. Topkis and his Paul, Weiss colleagues did have one thing going for them: The firm's lead partner, former federal judge Simon Rifkind, had chosen to testify before the Senate Judiciary Committee in favor of Cooper's nomination. Rifkind's partners had disagreed with his decision at the time but benefited from it when Cooper drew Flood's case. Cooper reportedly kept a list in his desk of the lawyers who had testified against him at his confirmation hearings.

The owners' lawyers expressed their own disappointment in landing Cooper. “We got the madman,” one of them said. But they, too, had a trump card. Compared with Flood's trial team of seven lawyers (five at Paul, Weiss, plus Moss and Zerman), Kuhn and the owners had hired a litigation army. Two law firms, Arnold & Porter in Washington and Donovan, Leisure in New York, represented Kuhn. Paul Porter led a team of six lawyers for the commissioner. Baker & Hostetler, led by Sandy Hadden, represented the American League teams and added three lawyers to the owners' brief. Willkie Farr, including Lou Carroll and Lou Hoynes, represented the National League teams and added six lawyers. Each team also had its own general counsel keeping tabs on the litigation.

The owners' ace in the hole was their lead lawyer, Willkie Farr's Mark F. Hughes. Hughes knew baseball and antitrust law, having represented the New York Giants in the
Gardella
case. More important, he also knew Judge Cooper. Hughes was former president of the New York County Lawyers Association (NYCLA). NYCLA was divided over Cooper's nomination and, unlike the ABA and the New York City bar association, refused to send anyone to the Senate Judiciary Committee to testify against him. During his own testimony, Cooper pointed out NYCLA's absence to the committee. The vice chairman and then chairman of NYCLA's judiciary committee during Cooper's nomination fight was Mark Hughes.

On the morning of February 3, lawyers from both sides as well as the press gathered in Cooper's courtroom, room 1505 in the federal courthouse at Foley Square, for Flood's preliminary injunction hearing. Neither Flood nor Kuhn was there. Flood's lawyers sought a preliminary injunction that would make Flood a free agent during his lawsuit, thus allowing any major league team to sign him. They had a high bar to clear—they had to show that Flood would be “irreparably harmed” by not being a free agent and that he had a high degree of likelihood of winning his case at trial. That was a tough argument with two Supreme Court precedents in his way.

In requesting an injunction, Arthur Goldberg made three key points: (1) Judge Cooper was not bound by
Federal Baseball
and
Toolson
because subsequent factors, such as radio and television revenues, plainly made baseball interstate commerce; (2) the reserve clause was illegal; and (3) the trade prevented Flood from playing for the team of his choice and was a form of slavery. “The fact that he is a high priced player is completely irrelevant,” Goldberg said. “In the times of the Romans there were very high priced slaves who were counselors to emperors and to generals who had access to kings' treasury. Price has nothing to do with it. The basic concept is the morality of the situation and the legality of the situation.”

Goldberg concluded by making a “counteroffer” to declaring Flood a free agent: Cooper could allow Flood to continue to play for the Cardinals under his old contract or with no contract at all until the case was resolved. Players were due to report to spring training in 22 days.