Curt Flood and a Triumph of "The Show Me" Spirit

Devine, James R., Missouri Law Review

I. Introduction

Curt Flood was not a Show Me State native. (1) Born in Houston, Texas, in January 1938, the last of six children, Flood moved as a child with his family to Oakland, California. (2) From early on, Flood "was precociously coordinated." (3) He was able to run, catch, and throw a ball better than much older children. (4) He began playing organized baseball at the age of nine in a police league and knew by the time he was a teen that he might make a living at baseball. (5) Although he was shorter and lighter than most professional ball players, at the age of eighteen, fresh out of high school, in 1956, Flood signed a $4000 yearly contract with the Cincinnati Reds. (6)

In 1956 and 1957, Reds management assigned Flood to play minor league baseball first at Class B High Point-Thomasville in the Carolina League and then at Savannah, Georgia, in the Class A South Atlantic League. (7) Flood endured extreme racial hatred. (8) His teammates and fans called him names, and his team prohibited him from eating in regular dining rooms and from lodging with the rest of the players. (9) Although this treatment made play almost impossible, Flood led the Carolina League in all offensive categories except home runs in 1956 and was named an all star in the South Atlantic League in 1957. (10) He also received brief call-ups to the Reds at the end of each season. (11)

On December 5, 1957, the Reds traded Flood and Joe Taylor to the St. Louis Cardinals for Marty Kutyna, Ted Wieand, and Willard Schmidt. (12) As the United States Supreme Court would later write in his case: "Flood rose to fame as a center fielder with the Cardinals during the years 1958-1969.... He played errorless ball in the field in 1966, and once enjoyed 223 consecutive errorless games." (13) Most commentators consider him one of the best center fielders of his time. (14) Offensively, he led the league in at-bats in 1963 and 1964, in hits in 1964, and in singles in 1963, 1964, and 1968. (15) He played on winning World Series teams in 1964 against the Yankees and in 1967 against the Red Sox. (16) He also played on the 1968 Cardinals team that lost the World Series to the Tigers. (17)

In light of the racism Flood faced as he progressed through the Reds minor league system, he thought the 1967-68 Cardinals team was "the most remarkable team in the history of baseball," and not merely because of its performance on the field. (18) The team was, in Flood's view, a culturally enlightened group. (19) "The men of that team were as close to being free of racist poison as a diverse group of twentieth-century Americans could possibly be." (20) Flood, along with Tim McCarver, who was white, captained the team. (21) This biracial leadership united the team without forcing race on any culture. (22) The desire to win, so that each team member could make more money, bound together the group. (23) The team believed that it was "the envy of the league," not just because of the play of its members on the field, "but because [they] were the warmest and closest." (24)

High team morale, however, deteriorated in 1969 following negotiations between the Baseball Players' Association and baseball owners over pensions and other issues. (25) In 1966, the Baseball Players' Association appointed former steelworker's union official Marvin Miller as its executive director. (26) Led by Miller, the Players' Association entered into professional sport's first collective bargaining agreement in 1968. (27) One of the labor issues between players and owners was the players' pension fund due to expire just prior to the start of the 1969 season. (28) When Miller learned that owners were not planning on continuing to fund the pension plan, he suggested players not report for spring training in 1969, and only one player reported on February 13th, the reporting date for pitchers and catchers. (29) Player/owner negotiations extended the plan through 1971, and most players showed up for training by February 25th. (30)

Holding out for two days in response to Miller's called-for labor action, Curt Flood garnered a pay raise from $72,500 to $90,000.31 Other players on the team, including hall of famers Bob Gibson and Lou Brock, along with Tim McCarver, also received substantial raises. (32) Those raises, however, carried a price. Player hold-outs made a number of owners angry, including beer-brewing magnate August A. Busch, Jr., who had purchased the St. Louis Cardinals franchise in 1953 for $3.75 million. (33) Following settlement of the labor dispute, Busch, the owner whose team had appeared in back-to-back World Series, dressed down his players at a meeting held at the Cardinals' St. Petersburg spring training camp. (34) On March 22, 1969, he brought other Cardinal executives and the St. Louis baseball press with him to the meeting and charged that the talk of union activities, not baseball, had dominated the off season. (35) He complained that players had arrived late for spring training and that some players were not in condition. (36) Busch suggested that baseball was in danger of losing out on entertainment dollars to other sports. (37) He emphasized the sacrifices that he and other city leaders had made in putting up the new Busch Stadium. (38) Finally, Busch told his team that players had the best pension plan anywhere and warned them that if they intended to benefit from that pension plan when they were older, they had better make the fans happy. (39) Apparently making reference to some of Marvin Miller's unionist tactics, Busch told the team that he did not "react well to ultimatums." (40) At the end, Busch asked if there were questions.41 None of the players spoke. (42)

From Curt Flood's perspective, Busch's speech "questioned the integrity of our attitudes." (43) The speech demoralized the team. (44) Regardless of the Cardinals' two World Series appearances, Flood wrote, "[W]e were still livestock." (45) While the players on the team remained close to each other, they no longer believed that the Cardinals were the best baseball organization. (46) In fact, according to Flood, "The 1969 Cardinals were a sorrowful and embittered group, and showed it on the field." (47) Their enemy was no longer the next team on the schedule, but rather was their own bosses. (48) The players were left "in a constant state of terrified insecurity." (49) According to some reports, a few days after Busch's speech, the Cardinals traded their most popular player, Orlando "Cha Cha" Cepeda, "underlining] the message" to the players. (50) The team's management was breaking apart the team, and the players knew it. (51) Flood told St. Louis newspapers that team management had given up on the 1969 season, particularly after management put two younger hitters into the batting order behind Flood and hall of fame player Lou Brock. (52) Flood protested what he considered were injustices, including the questioning of some of his and other team members' outside financial interests. (53) He called 1969 "that horrible season. Each complaint became another nail in my coffin. I was not speaking well of the boss." (54) Flood knew his days in a Cardinal uniform "were numbered." (55)

On October 7, 1969, the Cardinals traded Flood, Tim McCarver, Joe Hoerner, and Byron Browne to the Philadelphia Phillies. (56) In return, the Cardinals received Dick Allen, Cookie Rojas, and Jerry Johnson. (57) Flood learned of the trade the next day when Jim Toomey, assistant to the Cardinals' general manager Bing Devine, called him. (58) "'Good luck, Curt,'" was the reported substance of the conversation. (59)

II. The Reserve Rule's Judicial Challenge A. Curt Flood's "Free" Agency

Prior to his trade from the Cardinals, Curt Flood believed in the American dream. (60) Following the trade, however, he "felt unjustly cast out" and considered retirement. (61) Flood was limited in his baseball options because of baseball's long-standing reserve rule. (62) under that rule, Flood could either play for the team that owned his contract, the Phillies, or he could leave the game. (63) He did not have the right to shop his baseball talents to other teams. (64) As a result, Flood believed that the Cardinals had taken away his rights. (65) A friend suggested he sue. (66) Flood liked St. Louis. (67) It was his home and the locale of his business interests. (68) Flood did, however, meet with Phillies personnel. (69) Following that meeting, Flood was not disturbed so much about moving to Philadelphia as he was about the reserve rule's mandate that he do so if he wanted to continue to play baseball. (70) In a meeting with a lawyer for one of his businesses, the idea of a lawsuit again arose. (71) At that point Flood called Marvin Miller at the Players' Association. (72)

Flood visited with Miller in New York. (73) Flood knew that baseball's reserve rule was a combination of agreements whereby major league teams refused to play any team that signed a player reserved by any other team and which forbade a player from signing with any team other than the team that owned the player's reserve. (74) As a result, the collection of private employers who played each other in baseball games was engaged in a series of agreements that restrained their employees from moving within the industry, in Flood's view, a violation of the federal antitrust laws. (75) Flood wanted to sue to overturn the reserve rule. (76) Miller attempted to make Flood aware of the hardship he would face if he sued. (77) Flood likely would be out of baseball, he would never get to be a coach, and his personal life would be an open book and the subject of inquiry. (78) If he wanted to live in St. Louis, his business interests would be subject to disruption by August A. Busch, Jr., whom Flood also would be attacking. (79) Most important, Miller told Flood what he already knew: Flood was making $90,000 playing baseball at age thirty-one. (80) If he did not challenge major league baseball, he had a number of years in front of him in which that salary would increase. (81) Indeed, after his meeting with Miller, the Phillies offered Flood a salary in excess of $100,000 per year. (82) Miller told him to think about it. (83) Flood returned to St. Louis but called Miller about two weeks later: "'Marvin, I'm going ahead with it. Can you help?'" (84) Flood appeared in front of the executive committee of the Players' Association and, after questioning Flood and his motives, the union agreed unanimously to fund his legal fees. (85) Through Marvin Miller, the Players' Association hired Arthur Goldberg to represent Flood. (86) Goldberg was a former general counsel for Miller's Steelworkers union, a former Secretary of Labor in the Kennedy Administration, a former United States Supreme Court Justice, and a former ambassador to the united Nations. (87)

B. Flood v. Kuhn: The Supreme Court Revisits the Reserve Rule

Legal maneuvering in the case began with a letter from Curt Flood to baseball commissioner Bowie Kuhn in which Flood asked that the league declare him a free agent. (88) When the commissioner denied Flood's request, the subsequent lawsuit moved through the courts rapidly. (89) Filed in January 1970, the case took place in the home of major league baseball, New York City, (90) in the federal district court for the Southern District of New York in May 1970. (91) At trial, Curt Flood testified that he wanted the reserve system struck down. (92) Flood's other witnesses, including former stars Jackie Robinson and Hank Greenberg, however, agreed that some type of modified reserve system was necessary to maintain competitive balance on the field. (93) The press agreed, and at least one reporter indicated that a victory for Flood would destroy baseball. (94) The trial court ruled against Flood in August 1970, finding that a 1922 precedent of the United States Supreme Court had determined that federal antitrust laws did not cover baseball. (95) The Second Circuit Court of Appeals upheld the trial court in April 1971. (96) The United States Supreme Court heard the case on March 20, 1972. (97)

In affirming the opinions of the lower courts, the Supreme Court upheld its own precedent but did so with reasoning acknowledging the modern flaws of the prior cases. (98) Associate Justice Harry Blackmun, an avowed baseball fan, wrote the opinion for the Court. (99) Indeed, his office enshrined the game and contained, among other baseball memorabilia, Wheaties cereal boxes to commemorate the two World Series championships of Blackmun's beloved Minnesota Twins. (100) Justice Blackmun's opinion deferred to the 1922 Supreme Court decision in Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs. (101) In Federal Baseball, Justice Oliver Wendell Holmes, Jr. set out his understanding of baseball's relationship to interstate commerce, a necessary element for antitrust law coverage. (102) In analyzing baseball under federal antitrust laws, Justice Holmes recognized that: (1) the various major league baseball teams were located in different cities; (2) the teams played against each other in games that generated revenue; (3) often, one team crossed a state line to play another; (4) when two teams won the respective championships of their league, these two teams met in a World Series; (5) the game itself required constant traveling among league cities; and (6) this traveling was controlled and regulated by the game itself. (103) Despite these attributes of interstate commerce, however, Justice Holmes found that the exhibition of baseball itself was not "trade or commerce" under the then-existing standards of antitrust analysis. (104) Additionally, the teams …

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Publication information: Article title: Curt Flood and a Triumph of "The Show Me" Spirit. Contributors: Devine, James R. - Author. Journal title: Missouri Law Review. Volume: 77. Issue: 1 Publication date: Winter 2012. Page number: 9+. © 2007 University of Missouri-Columbia School of Law. COPYRIGHT 2012 Gale Group.

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