A Well-Paid Slave (51 page)

T
he day the Court's decision came down, Marvin Miller called Curt Flood in Majorca with the news. Miller had played the role of pessimist in chief about Flood's lawsuit from day one. But Miller still hated to lose, and privately, he was disconsolate. On the phone, Flood tried to cheer Miller up. Flood's few public comments were similarly upbeat. “Baby, I gave them one hell of a fight,” he told
Newsweek
.

Curt Flood was not baseball's first free agent. Nor did his lawsuit create free agency. But his legal battle set the stage for free agency in baseball.

Flood's lawsuit helped change public opinion. “What
Flood v. Kuhn
really accomplished,” according to Miller, “was . . . raising the consciousness of everyone involved in baseball: the writers, the fans, the players— and perhaps even some of the owners.” It certainly helped unite the players. Before the 1969 season, some players had ignored the union's edict to refuse to sign new contracts until the resolution of a pension dispute. Three years later, the players displayed so much unity during pension negotiations that they initiated a 13-day strike that delayed the start of the 1972 season. The change in the media's tone—from its vilification of Flood for his “well-paid slave” remark in 1970 to its outrage over the Supreme Court's decision two years later—was incredibly telling. The Court's weak justifications for baseball's antitrust exemption left the reserve system on shaky ground. Even the owners' chief negotiator, John Gaherin, knew after reading the decision that free agency was inevitable. “After the
Flood
case,” Gaherin said, “it wasn't a question of if the reserve structure would be restructured or annihilated, but when.” Gaherin tried to explain to the owners that they had won on a technical jurisdictional point, that baseball was immune from antitrust lawsuits, not on the merits of the reserve clause. That point was still up for grabs and, with Marvin Miller on the other side, seemed to be headed in the players' favor.

Flood's lawsuit also made Miller's job easier because the owners kept insisting at trial and on appeal that the reserve clause was a collective bargaining issue. Before the
Flood
case, the owners had refused to entertain any modifications to the reserve clause. Now the pressure was on the owners to negotiate in good faith. They could no longer reject all the players' proposed modifications to the reserve clause without making counteroffers. If the owners failed to negotiate in good faith, they could incur the wrath of the National Labor Relations Board or the federal courts.

This became apparent during negotiations over the 1973 Basic Agreement. Miller and the players agreed to keep the reserve clause in place for three more years but won other critical concessions. Players with two years of continuous major league service and three years of noncontinuous service would be eligible for salary arbitration, meaning they could resolve salary disputes before an independent arbitrator. Salary arbitration would bear enormous fruit in the form of increased players' salaries. Veteran players won their first taste of freedom from unwanted trades because of a rule inspired by Flood's objection to being traded after 12 seasons with the Cardinals. Under the 10-and-5 rule, any player with 10 years of major league service and 5 years with the same team could not be traded without his consent. The 10-and-5 rule would have prevented Flood's trade and is often referred to as the Curt Flood rule.

The Curt Flood rule could no longer help the person who inspired it. In Majorca, Flood worked at the Rustic Inn, a bar he owned with Ann, a woman he referred to as his wife but was only a girlfriend. Decorated with bats, gloves, autographed balls, and photographs, the Rustic Inn developed into a popular hangout for American servicemen from the Sixth Fleet. A picture of Flood from his playing days hung on the wall behind the bar. He spent most of his days drinking with the servicemen and occasionally played softball with them. The servicemen found him charming; he even entertained questions from a few enterprising newsmen.

Flood's Supreme Court defeat was never far from his mind. He told Bob Sheridan, an up-and-coming Miami sportscaster, that he was writing a second book about the Court's decision. Curt expounded on some of his theories about the decision during a January 1973 conversation with Vernon Sherwin, a retired
Baltimore Evening Sun
news editor living in Majorca. Flood pointed out that three of the four Nixon appointees had voted against him and the fourth, Powell, had abstained. “He abstained,” Flood said, “but I sometimes wonder when he acquired the stock and whether he just abstained from voting or whether he abstained from discussing the case with the other judges.” Powell's comments at conference and his note of encouragement to Blackmun would have sent Flood through the roof.

Flood criticized the new labor agreement during an April 1, 1973, interview with his old friend Howard Cosell. Cosell had befriended Flood when Flood needed friends most, standing by him even after the furor over his lawsuit had subsided. He helped Flood's business by sending him videotapes of major league games and Muhammad Ali fights to show to the American servicemen at the Rustic Inn.

Flood was disappointed because the new labor agreement called for no negotiation over the reserve clause for three more years. “It's been three years since I started to fight it and now three more years will go by and it'll be at least another three years before they do anything about it,” Flood told Cosell. “I've given a lot of time and money to do this.” The 10-and-5 rule was not enough to mollify Flood; he wanted the end of the reserve clause. “The problem with the reserve clause is that it ties a man to one owner for the rest of his life,” he said. “There is no other profession in the history of mankind except slavery in which one man was tied to another for life.”

Off camera, Flood and Cosell sat on the roof of the bar with the Mediterranean Sea behind them. Flood looked awful. His receding hair looked wild and unkempt. His face looked fatter. His eyes looked weary and tired. Tears came to his eyes. He touched his head and his heart. “These are mine,” he told Cosell. “They belong to me. You can't buy them, you can't sell them, and you sure can't
trade
them.” Flood was homesick and, according to Cosell, “[i]n spite of himself, he missed baseball.”

Flood had already missed the funeral of the man who had taught him the most about freedom, Jackie Robinson. Before his death, Robinson was honored during an on-field ceremony before Game 2 of the 1972 World Series between the Oakland A's and the Cincinnati Reds. The ceremony marked the 25th anniversary of Robinson's first major league season. “I am extremely proud and pleased to be here this afternoon,” a nearly blind Robinson told the crowd, “but must admit I'm going to be tremendously more pleased and more proud when I look at that third base coaching line one day and see a black face managing in base-ball.” Robinson had been estranged from the game for so long that he may not have realized that most managers no longer doubled as third base coaches. Nine days later, Robinson died of a diabetes-related heart attack at age 53. “Jackie, as a figure in history, was a rock in the water, creating concentric circles and ripples of new possibility,” a young, Afro-wearing minister named Jesse Jackson told 2,500 mourners at Manhattan's Riverside Church. Robinson was buried in Brooklyn beneath a gravestone bearing his own words: “A life is not important except in the impact it has on other lives.”

In the tradition of his hero, Flood continued to stand up for his convictions, but he may not have been privy to Marvin Miller's incremental approach to attacking the reserve clause. Even though the 1973 Basic Agreement had been signed, Miller was not going to put the fight for free agency on hold for three years. He had at his disposal a new generation of ballplayers and new weapons, foremost among them independent grievance arbitration.

Miller believed that Flood's lawsuit had facilitated the owners' acceptance of an independent arbitrator. Before the union's December 1969 meeting in Puerto Rico, the owners had rejected the idea. Six months later, on the eve of Flood's trial, the owners agreed to the new grievance procedure as part of the 1970 Basic Agreement, which ran for three years. Flood's lawsuit had removed the critical obstacle to the agreement—the reserve clause—from the bargaining table. The lawsuit also struck the fear of God in the owners that they were going to lose their antitrust exemption. In the past, Miller said, the owners had argued that they could self-regulate their business and therefore avoid government intervention. With Flood's lawsuit challenging their autonomy, the owners granted the players a right enjoyed in every other industry by allowingthem to have their grievances decided by a neutral party. It turned out to be a costly concession.

The power of an independent arbitrator was illustrated in the case of 1974 American League Cy Young Award winner Catfish Hunter. After the 1974 season, Hunter filed a grievance claiming that A's owner Charlie Finley had reneged on a portion of his contract by refusing to set up a $50,000 annuity in the pitcher's name. The independent arbitrator, Peter Seitz, ruled that Finley had breached Hunter's contract and declared the A's ace pitcher a free agent. After the ruling, teams flocked to Hunter's native North Carolina and began a bidding war for his services. Hunter eventually agreed to a five-year, $3.5 million contract to pitch for the New York Yankees. Hunter's contract opened other players' eyes to what free agency could do for them.

Miller's ultimate goal was to use independent grievance arbitration to test the meaning of the language in the reserve clause, paragraph 10(a) of the Uniform Player Contract. Paragraph 10(a) said that if a player refused to sign his contract, “the Club shall have the right . . . to renew the contract for the period of one year.” Read literally, the reserve clause was a one-year option on, not lifetime ownership of, a player's services. In 1967, a California judge interpreted similar language in the NBA contract of forward Rick Barry as a one-year option. Miller believed that an independent arbitrator would say the same thing about paragraph 10(a). He just needed the right test case.

Major league players began testing the meaning of paragraph 10(a) by refusing to sign new contracts and forcing the owners to exercise the renewal provision. The players were essentially working under their previous season's salaries but without signed contracts as they attempted to break the cycle of perpetual options on their services. Nervous about retaining their unsigned players, major league teams tried desperately to sign them to new contracts during the season. The St. Louis Cardinals' young catcher, Ted Simmons, played without a signed contract until July 1972, when he signed a two-year deal worth $75,000. Six players began the 1974 season without signed contracts, but only two made it to the end. Yankees reliever Sparky Lyle pitched without a new contract until the last day of the season and pitched well, earning a retroactive salary of $87,500 for 1974 and $92,500 for 1975. San Diego Padres outfielder Bobby Tolan, another former Cardinals teammate of Flood's, played the entire 1974 season without a contract, receiving a retroactive raise to nearly $100,000 for 1974 and a similar amount for 1975.

In 1975, Los Angeles Dodgers ace Andy Messersmith became the first player to play an entire season without a signed contract and to challenge the meaning of paragraph 10(a) before an independent arbitrator. When the Dodgers refused to give Messersmith a no-trade clause in his 1975 contract, the two-time 20-game winner refused to sign a new deal. He won 19 games that season with a 2.29 ERA. After the season, Messersmith rejected the Dodgers' last-minute offer of $135,000 retroactively for 1975 and a combined salary of $320,000 for 1976 and 1977. Instead, Messersmith gambled that an arbitrator's decision about paragraph 10(a) would make him a free agent.

Montreal Expos pitcher Dave McNally joined Messersmith's grievance. A four-time 20-game winner with the Baltimore Orioles, McNally had been traded to the Expos before the 1975 season. He could not come to terms with the Expos before the season and played for them without a signed contract until June 8, when the 32-year-old left-hander left the team. The next day, McNally announced his retirement; he planned to open a car dealership. Miller wanted another plaintiff in the case and asked McNally to join Messersmith's challenge to paragraph 10(a). McNally agreed. In November, Expos president John McHale suddenly showed up in McNally's hometown of Billings, Montana, to offer him a $25,000 bonus to go to spring training in 1976 and a $125,000 contract if McNally made the team. McNally turned down an easy $25,000, and, even though he had every intention of retiring, insisted on joining Messersmith's grievance.

The owners attacked Messersmith's and McNally's grievance on multiple fronts. They unsuccessfully tried to get a federal judge to declare that the reserve clause was outside the scope of the grievance procedure because both sides had agreed to set aside the reserve clause as part of the 1970 Basic Agreement. The owners' biggest mistake was not exercising the right that either side had to fire arbitrator Peter Seitz, who had already ruled against them in the Hunter case. Once the arbitration had begun, the owners argued before Seitz that the reserve system consisted of not only paragraph 10(a) but also the Major League Rules—including Rule 3(a) requiring all players to sign the Uniform Player Contract containingthe reserve clause, Rule 3(g) against tampering with players under contract, and Rule 4-A about the reserve lists—all of which the players had agreed to obey as part of the Uniform Player Contract. The players simply argued that the reserve system came down to the meaning of paragraph 10(a). Seitz sided with the players, interpreting paragraph 10(a) to be a one-year option and declaring Messersmith and McNally free agents. Messersmith and McNally won the players what Flood had not: freedom. Emboldened by nearly 50 years of courtroom victories, the owners attempted the difficult task of persuading a federal judge to overturn an arbitrator's binding decision. A Kansas City-based federal trial judge and a federal appeals court upheld Seitz's ruling. As baseball's second recent high-profile free agent, Messersmith signed a three-year no-trade contract with the Atlanta Braves worth $1 million. McNally, as he had originally intended, retired.