A Well-Paid Slave (34 page)

A few days before the New York chapter's dinner, Flood attended a much more serious theatrical event in Manhattan—the January 27 oral argument of his case before a three-judge panel at the United States Court of Appeals for the Second Circuit.

The Second Circuit appeal was even more of a formality for Flood than the trial. The last step before taking his case to the Supreme Court, the Second Circuit did not review the trial court's factual findings; it only determined whether Judge Cooper had followed the law.

Another recent Second Circuit decision about baseball foreclosed any possibility of its reversing Judge Cooper. Two former umpires, Al Salerno and Bill Valentine, claimed that AL president Joe Cronin had fired them for trying to unionize their fellow umps. Cronin contended that he had fired them for incompetence. Salerno and Valentine sued baseball in federal court in lower Manhattan.
Salerno v. American League of Professional Baseball Clubs
had been dismissed before trial on December 10, 1969, because of
Toolson
and the antitrust exemption.

Before the appeals court's decision, Salerno and Valentine passed up several opportunities to settle their case. Baseball offered to pay them $20,000 each, provide them annual salaries of $20,000, and, after brief minor league stints, reinstate them to the major leagues. Valentine wanted to accept the deal, but Salerno held out for $100,000. Neither ump was reinstated. They lost in a hearing before the National Labor Relations Board (NLRB) and on appeal to the Second Circuit.

The Second Circuit's decision in
Salerno
came down July 13, 1970— after Flood's trial but before Judge Cooper's decision.
Salerno
gave Cooper additional fodder for ruling against Flood because it represented controlling law in the circuit that baseball was immune from the anti-trust laws. Trial and appellate judges in the Second Circuit were bound by the appeals court's decision in
Salerno
as well as by the Supreme Court's decision in
Toolson
. Flood, therefore, was destined to lose in the Second Circuit at least two ways.

Salerno
, however, was not a total blow to Flood. Judge Henry Friendly, a very well-respected appeals court judge, wrote a short opinion for the three-judge panel that all but invited the Supreme Court to overrule
Federal Baseball
and
Toolson
. Friendly concluded:

On January 11, about two weeks before the Second Circuit oral argument in Flood's case, the Supreme Court declined to hear the case now known as
Salerno v. Kuhn
. The Second Circuit's decision in
Salerno
remained the law of the circuit, but the tone of Judge Friendly's opinion gave Flood's legal team encouragement as it sought the attention of the Supreme Court. After
Salerno
, the Second Circuit served merely as the warm-up act to persuade the Supreme Court to hear Flood's case. As typically happens on appeal, both sides used their briefs to reprioritize and refine their legal arguments.

On November 2, 1970, Flood's legal team filed a 100-page appellate brief emphasizing his claims under state antitrust law. The owners “may not have it both ways,” the brief said; baseball is either interstate commerce subject to federal law or intrastate commerce subject to state law. “If Curt Flood must bear the burden of
Federal Baseball Club
and
Toolson
, he should receive the benefit of those decisions as well,” the brief said. Goldberg and other members of Flood's legal team believed that the state law argument gave the Supreme Court a way to wiggle out of its prior decisions and rule in Flood's favor. It also represented a fresh issue before the Second Circuit.
Salerno
did not address any state law claims. Flood's brief relegated his involuntary servitude and peonage claims to a mere footnote—an indication that his lawyers considered their slavery arguments to be weak and inconsequential.

The owners' lawyers responded in their 46-page brief that
Toolson
and
Salerno
controlled this case, that the decision to remove baseball's antitrust immunity was up to Congress, and that Congress had not acted. They used a large chunk of their brief to push their labor exemption argument—that federal labor law prevented Flood and the Players Association from challenging the reserve clause under the antitrust laws. The players either could aggregate as a union under federal labor law or sue the owners under federal antitrust law, but not both. Since the players had chosen to form a union, the brief argued, the only way to change the reserve clause was through labor negotiation, not an antitrust lawsuit. The owners' lawyers figured that if the Supreme Court decided to hear Flood's case and reconsider the game's antitrust exemption, then the labor exemption was the next best way to defeat Flood's lawsuit. They rebutted Flood's state law claims by relying on the logic of the Milwaukee Braves case that inconsistent state court rulings would imperil the national pastime. They also informed the court that Flood had signed with the Senators, but that both sides had agreed November 13 that his signing did not prejudice his case.

In their eight-page reply brief, Flood's lawyers pointed out that the owners had “run from one forum to another, arguing before each that that particular forum [was] not the proper one to regulate baseball.” In
Federal Baseball
and
Toolson
, they had argued that state law still applied. In the Milwaukee Braves case before the Wisconsin Supreme Court, they had argued that federal law controlled state law. After
Toolson
, they had argued it was up to Congress. Before Congress, they had said the legality of the reserve clause would be subject to the courts. In a dispute related to Salerno's and Valentine's attempt to unionize the American League umpires, they had said the NLRB lacked jurisdiction because the dispute did not affect interstate commerce, and baseball was international in scope. In Flood's case, they said his lawsuit should not go forward because the reserve clause was the mandatory subject of labor negotiations. Somewhere, in some forum, Flood's reply brief argued, the owners should be subjected to the law.

The Second Circuit lacked the authority to end the owners' shell game. It did, however, grant Flood's request for expedited review of his case. Despite Flood's presence at oral argument, the January 27 hearing did not receive much press coverage. The lawyers presented a preview of the possible lineup and arguments if the Supreme Court decided to hear the case. Arthur Goldberg argued for Flood. Lou Hoynes, representing the owners, and Paul Porter, the commissioner's counsel, took turns on the podium for baseball. Each side spoke for 45 minutes before three federal appellate judges: Sterry R. Waterman, Leonard P. Moore, and Wilfred Feinberg. Oral argument mostly served as an opportunity for the judges to ask the lawyers to amplify or explain aspects of their briefs or to expose weak points in their arguments.

The lawyers treated the hearing almost as cavalierly as the press. On the day of the argument, Hoynes juggled the needs of several other clients at Willkie Farr's offices in lower Manhattan and could not get out of the office. About a half hour before the argument, he hopped onto the subway near Wall Street for the two-stop subway ride to the courthouse. The train was delayed. Flood's case was the fifth and final argument of the day. Even so, Hoynes slipped into courtroom 1707 about 10 to 15 minutes after Goldberg had begun. As soon as Goldberg finished, Hoynes stood up and argued for the owners. After 90 minutes, the three judges reserved their decision on the case. A decision was expected in about a month but could take longer.

A week after the Second Circuit argument, Flood found himself back in the headlines because the February 1 issue of
Sports Illustrated
contained an excerpt of his soon-to-be-published book,
The Way It Is
. A cross between Eldridge Cleaver's
Soul on Ice
and Bouton's
Ball Four
,
The Way It Is
revealed the pain Flood had felt after being turned away from the Reds' spring training hotel and the shock of the name-calling and isolation he had experienced during his two minor league seasons in the segregated South. “The book in some parts is as sad as a suicide note,”
Los Angeles Times
columnist Jim Murray wrote.

The Way It Is
included a hilarious chapter about ballplayers' sexual habits. Flood declared that most major league players and coaches were “as randy as minks.” Unlike Bouton in
Ball Four
, Flood told tales only on himself: throwing baseballs with his hotel phone number on them to attractive women at the ballpark, sneaking down to the lobby to check out groupies who had called up to his room, and discovering another player's little black book in a Chicago hotel room only to find that it contained all the same names and numbers as his own book. Flood and some of his Cardinals teammates bonded as they “swapped booze and chicks from one end of the country to the other.” But he issued this tongue-in-cheek disclaimer: “In case any baseball wife boggles at this, let her rest assured that her own husband was never involved. We admired and respected his sobriety and his ministerial rectitude. He was an inspiration to us all. So were his closest friends on the club. None of them ever had any fun.”

The Way It Is
was about much more than sex. It was about the principles that lay behind Flood's fight against the reserve clause, the rise of the Players Association under Miller, Flood's unique bond with Johnny and Marian Jorgensen (he dedicated the book to them), his close friendship with and admiration for Bob Gibson, and the interracial brotherhood of the 1960s-era St. Louis Cardinals.
The Way It Is
endures as an important historical document. “As a star, a black man, and a forthright critic of the baseball establishment, Flood has much more to say than Bouton did,” syndicated columnist Red Smith wrote. “He is candid about his own pleasures off the field and he can discuss physical appetites without the leering prurience that made Bouton's disclosures distasteful.”

The baseball establishment loathed Flood's book. Bowie Kuhn was rumored to be more upset about Flood's discussion of sex in baseball than he was about Bouton's. Kuhn, however, did not make the same mistake he had made with Bouton. Flood's lawsuit prevented Kuhn from calling him into his office. Kuhn got his revenge later that spring by leaving Flood off the All-Star ballot. The move turned out to be more prescient than spiteful.

Other than Jim Murray, Red Smith, and Robert Lipsyte of the
New York Times
, most of the sporting press teed off on
The Way It Is
. Flood took aim at too many sacred cows—especially in St. Louis.
The Way It Is
got Flood excommunicated from Cardinal Nation. He portrayed his second manager, Solly Hemus, as a racist—discussing Hemus's behavior during the Bennie Daniels incident, his disdainful treatment of Flood and Gibson, and his carping comments after Flood had made it big with the Cardinals. Flood also revealed the paternalism and condescension of Cardinals owner Gussie Busch. He blamed Busch's spring training diatribe against the players for ruining the team's morale during the 1969 season, even publishing the speech in its entirety as an appendix.

Harry “the Hat” Walker, the manager of the Houston Astros and a former Cardinals player and coach, called Flood's book “tripe” and claimed that several years earlier Busch had vetoed a proposed trade of Flood to the Pittsburgh Pirates. “Mr. Busch pets his players, takes care of them in so many ways. For example, I know he gave Flood's wife a good job modeling,” Walker told the
Birmingham News
. “I know Mr. Busch has bailed Flood out of several money jams, too.” Walker, despite his Alabama home and Mississippi roots, was extremely close to Flood's friend Bill White. Flood acknowledged Walker's help with his development as a hitter. Walker admired Flood's grit and determination as a ballplayer, just not his opinions about the game. “Philadelphia offered him $100,000 to play,” Walker said. “It's his right not to take it, but I can't stomach his crying that baseball mistreated him.”

Bob Broeg of the
St. Louis Post-Dispatch
stood up for Gussie Busch as well. Flood, Broeg wrote, “emerges as a cynic and as an unforgiving guy whose racial resentment runs deep.” Broeg claimed that after Busch's 1969 speech to the players, Flood was quoted as saying: “He's the man.” What else was Flood supposed to say? Broeg also reminded readers that Flood had demanded a $100,000 salary after the 1968 season and had bristled over the team's decision to try younger players at the end of the 1969 season. He quoted Flood as saying: “I want everything that's coming to me even if it's only a dime.” No one had quoted Flood or any other players as saying that at the time. “Curt is indeed curt,” Broeg concluded of
The Way It Is
. “I never knew he was so damned unhappy.”

Flood further alienated Cardinals fans by ripping into the real patron saint of St. Louis: Stan “the Man” Musial. Flood described an incident in which he and a date had been refused late-night service at Musial's restaurant, Stan & Biggie's. Musial later said it “was a long time ago” and the kitchen closed at 12:30 a.m.—no exceptions. Flood said Musial would have made a decent major league manager because he would not think too much and would just let the players play. But he also portrayed Musial as a simpleminded company man and derided Musial's frequent use of the word “wunnerful.” Musial was deeply hurt by Flood's comments.