A Well-Paid Slave (25 page)

As Flood approached the witness chair on the morning of May 19, he was a nervous wreck. His eyes looked tired; his face looked fuller. It was as if the last six months had aged him six years. Dressed in a navy blue pin-striped double-breasted suit, a white shirt, and a dark tie with a white stripe at the top, he wore a pinky ring on one hand and a World Series ring on the other. He swore to tell the whole truth and nothing but the truth.

Before Flood gave even a word of testimony, Judge Cooper warned him to keep his voice up because of the high ceilings and bad acoustics in the room. By legal standards, it was not a large courtroom, but to Flood it seemed huge. The benches behind the counsel tables seated about 80 people.

Goldberg made it through only two questions about Flood's name and hometown before Hughes jumped up and objected. Hughes stated for the record that the court lacked jurisdiction over the case because of baseball's antitrust exemption.

The objection only added to Flood's discomfort. He was so nervous and uptight that he could not remember when he graduated from high school. First, he said 1968. He quickly corrected himself with 1958. Finally, Goldberg was forced to correct the record again by informing Flood that it was 1956.

Goldberg tried to take Flood through the start of his professional career—signing with the Reds out of high school for $4,000 without even reading the contract, playing in the segregated South in High Point and Savannah, and learning in Venezuela that he had been traded from the Reds to the Cardinals. It was difficult, however, for Goldberg to evoke sympathy about the way the reserve system had treated Flood because of Goldberg's lack of knowledge about Flood's career and Flood's nervousness and inexperience as a witness.

Flood's voice could barely be heard by the audience. He sat hunched over, nervously rubbed his hands together, and looked down as he spoke. Goldberg gently reminded Flood to speak louder and to talk with his head up instead of down. The young man who had spoken so eloquently at the Mississippi NAACP rally in 1962, to the media assembled outside his rented home in Alamo, California, in 1964, and after his misplay in Game 7 of the 1968 World Series was nowhere to be found. In Judge Cooper's courtroom, he was so afraid of saying the wrong thing that he could not find the words to say much at all.

Flood remembered that he had batted .261 in 1958 but could not remember his batting averages from the next three seasons. Goldberg believed that Topkis had Flood's averages on a piece of paper. Topkis looked for help from his two young associates in charge of the exhibits.

Bill Iverson happened to have Flood's Topps baseball card in his wallet. The 2
¹
⁄2 -by-3
¹
⁄2 - inch card pictured Flood in his Cardinals uniform on the front and listed his season-by-season statistics on the back. Iverson kept Flood's card in his wallet “because he was one of my current heroes.”

Iverson handed the card to Topkis. Topkis handed it to Goldberg at the lectern. Goldberg passed it up to Flood.

“What are you looking at?” Goldberg asked Flood so that he could identify it for the court.

“A baseball card,” Flood replied.

Flood used his baseball card to refresh his recollection about his batting averages. The press loved it. It was great theater and completely improvised.

Cooper was not amused. He soon put Flood in his place. Goldberg asked Flood about his salary negotiations with Bing Devine before the 1959 season. Goldberg was trying to show the unequal bargaining relationship between player and general manager under the reserve clause.

Flood understood Goldberg's point, but he could not remember the facts to be able to answer the question. Flood instead answered with an argument about the inequities of the salary negotiations. Hughes objected. Sustained. Cooper launched into a lecture about the rules of evidence. He told Flood to stop arguing and to answer the question with his best recollection of the facts.

Flood could not regain his train of thought. He tried to answer the question with conditional statements and hypothetical dialogue. Cooper again interrupted him. He told Flood that “I state” was okay, but “I would state” was not. Flood was so unnerved that he could not understand Cooper's distinction.

Cooper could not keep the bully who had tormented Legal Aid lawyers and juvenile defendants completely under wraps. He showed Flood no respect and took advantage of an obviously nervous witness.

“Now, Mr. Flood, I presume you are not finding this as easy as getting up at bat, is that right?” Cooper asked.

“No sir, it is not,” Flood replied.

“I want you to remember other people have problems and now you are seeing it is not an easy thing to testify,” Cooper said. Cooper forced Flood to concede that he could not remember what took place during his 1959 salary negotiations with Bing Devine.

For a cooperative witness, direct examination is not supposed to be this difficult. The witness's lawyer asks the questions. The lawyer either has written out all the questions and even the answers in advance or has asked the witness all the questions in advance and knows how the witness is supposed to answer. A direct exam usually consists of who, what, when, why, and how questions. The lawyer is not allowed to lead the witness by planting the facts of the answer in the question. Instead, the lawyer is trying to get the witness to tell the story by asking the witness simple questions like “What happened next?” The lack of preparation by Goldberg and Flood added to Flood's difficulties. The fault rested with Goldberg. Cooper's snide comments exacerbated the situation. “I guess that they were looking for a Sidney Poitier playing me,” Flood said, alluding to Hollywood's leading black actor at the time. “I was me playing me.”

The rest of Flood's direct examination testimony was uneventful but certainly not smooth. Flood used the baseball card to review the rest of his batting averages: .296 in 1962, .302 in 1963, .311 in 1964, .310 in 1965, .267 in 1966, .335 in 1967, .301 in 1968, and .285 in 1969. He could not remember the salaries he had made after his first season. Goldberg asked his opposing counsel for the salary information. All player salaries had been kept secret. Goldberg read Flood's into the record:

His salary—which excluded World Series bonuses in 1964, 1967, and 1968—averaged $28,500 per season. That was nearly six times what the average American made during the 1960s. But Flood had spent most of that money, and his income stream, given his decision to sit out the season, had dried up. For all the talk about Flood being a rich, ungrateful ballplayer, he was not a wealthy man.

Goldberg walked Flood through some things that had happened to him during his career—receiving $500 for being named co-captain in 1965 and getting fined $250 for missing a team banquet in 1969. Flood discussed his trade from the Cardinals to the Phillies, his meetings with John Quinn and Miller and Moss, and his decision to sue.

“Why did you bring this lawsuit?” Goldberg asked.

“I didn't think that after twelve years I should be traded and treated like a piece of property,” Flood said in one of his testimony's few bright spots. Flood also said that he would agree to play for another team “[i]f I had the choice of playing for whom I chose, whoever offered me the best deal.” He also testified that he “could play another five years easily.”

Flood concluded his direct testimony shortly before 1 p.m. after two and a half hours on the witness stand. The trial broke for lunch. After lunch but before the trial resumed, Flood and Goldberg chatted on a park bench outside the courthouse. Their little chat—more time than Goldberg probably had spent with Flood in the last month—seemed to help Flood relax.

Cross-examination was no picnic. The goal of cross-examination is not to engage the witness in a debate, nor is it always to achieve a revelatory or gotcha-type moment. The purpose is to read statements to the witness and get him to agree with them. The best answer from a witness on cross-examination is “Yes.” Through a series of “yes” answers, the cross-examiner tries to point out inconsistencies in the witness's testimony, damage the witness's credibility, and destroy the witness's position.

Mark Hughes began by pointing out a few minor inconsistencies in Flood's testimony based on his prior statements in the press. He also received some help from Cooper. Flood, who sat hunched over and talked at the floor, incurred another of Cooper's lectures.

“The trial is a public trial,” Cooper said. “People have a right to come into this courtroom. That is the American way. I presume a good numberof them have come here purposely to see you. They want to hear you. They have a right to know what is going on, and I am going to ask you, and I hope it will be for the last time, to really almost shout, if you have to, because we want to hear what you have to say.”

Hughes's main strategy on cross-examination was to persuade Judge Cooper that the real plaintiff in this case was the Players Association, not Flood. Hughes sought to divorce Flood from the litigation.

First, Hughes asked Flood who was paying his legal fees. Goldberg immediately jumped up and answered for his client. “[W]e, in conversation with Mr. Miller, not Mr. Flood, have made arrangements that we will look to the Players Association for compensation in this litigation,” Goldberg said. “Thus far we have received none.”

“I'm sorry to hear that,” Victor Kramer piped up for the commissioner.

“That is mutually shared,” Goldberg replied.

Despite this moment of levity, Hughes was determined to make Flood's participation in this trial irrelevant. He succeeded through a series of cross-examination questions about what would satisfy Flood regarding changes to the reserve clause. At first, Flood stuck to the union's party line: “I think some modification would do that for me.”

In supporting Flood's lawsuit and during labor negotiations with the owners, the union had indicated that it only wanted to see the reserve clause modified, not destroyed. It recognized that the owners had a right to recoup their investments in player development but that the players deserved at some point in their major league careers to be free agents. The owners, however, had rejected any modifications. The union knew that the only way to bring the owners to the negotiating table was to get the reserve clause struck down in court.

Hughes kept after Flood. The owners' lawyers suspected that Flood, a vulnerable and ill-prepared witness, might not be able to differentiate between seemingly inconsistent aims: getting the reserve clause struck down in court and seeking modification at the negotiating table. Hughes took advantage of Flood's nervousness and lack of legal expertise.

“Well, which is it that you want?” Hughes asked. “Do you want a modification or do you want the whole system to be struck down and declared illegal?”

The correct answer was both—in order to modify the reserve clause at the negotiating table, the players had to get it struck down in court. Flood, however, picked one.

“I would like the whole system to be struck down and declared illegal,” Flood replied.

Hughes had laid a trap. He claimed that Flood was advocating two inconsistent positions—modification and complete elimination—in the span of a few seconds. Hughes attempted to clarify Flood's views by reading a comment Flood had made during his Howard Cosell interview: “Any revision of the reserve clause, something both parties can live with, would be just fine with me.”

Renouncing those earlier views, Flood took an absolutist position: “Well, I feel that we ought to start all over again, just wipe the thing out and do something different.”

The owners' lawyers silently rejoiced. They knew that they had boxed Flood into an indefensible position. No one—not Marvin Miller or any former or current players—believed that as a practical matter the reserve clause should be eliminated. Hughes had succeeded in making Flood irrelevant. On appeal, the owners could successfully portray Flood as a figurehead whose views did not matter; what mattered were the views of Miller and the Players Association. This was an extension of the owners' theory that Flood was not smart enough to come up with the idea of suing baseball. Through Hughes's lawyer tricks, they had factual support for their theory.

Flood's cross-examination, however, was not a total detriment to his case. A few moments after scoring big points, Hughes asked: “Mr. Flood, what do you think would happen if every player were a free agent at the end of each playing season?”

Goldberg objected. He argued that Cooper had sustained Hughes's objection to a similar question of Goldberg's. Overruled. Cooper instructed Flood to answer the question.

“I think then every ballplayer would have a chance to really negotiate a contract just like in any other business,” Flood said.