Speaking Out, Flood's Fight for Free Agency

Speaking Out, Flood's Fight for Free Agency
By PJ Rain

Recently, Minnesota Twins infielder, Orlando Hudson, sparked a sports media controversy when he implied that part of the reason two of his fellow African-American baseball players had been unable to secure jobs playing Major League Baseball this season was related to their race.   The two players in question are outfielders Jermaine Dye, 36, and Gary Sheffield, 41, who both showed last season that despite their ages, they can still make a significant contribution to a Major League team.   Hudson’s comments to Jeff Passan of Yahoo Sports read as follows:  

“Guy with [27 home runs and 81 RBIs] and can’t get a job. Pretty much sums it up right there… You’ve got some guys who miss a year who can come back and get $5, $6 million, and a guy like Jermaine Dye can’t get a job. A guy like Gary Sheffield,… a first-ballot Hall of Famer, can’t get a job. …We both know what it is… You’ll figure it out. I’m not gonna say it because then I’ll be … Call it what you want to … I ain’t fit to say it. After I retire I’ll say it. I’ve got a whole bunch of stuff to say after I retire.”

Hudson made his initial comments a couple of days before Major League Baseball celebrated Jackie Robinson Day on April 15, and he later stated that Robinson would “turn over in his grave if he saw the lack of African-Americans playing ball.” *   

One thing that Robinson always did appreciate was a willingness to speak out and stand up for fairness and justice, and he understood that some circumstances required significantly more courage than others.   That is exactly why he was one of the few athletes to stand up for a 5’9”, 160 pound, centerfielder by the name of Curtis Charles Flood, who not only spoke up, but actually sued Major League Baseball because he resented being treated like “a piece of property.”  

It all started on an early October morning shortly after the conclusion of the 1969 baseball season.   Curt Flood had just received a call from a St. Louis writer telling him that he had been traded from the St. Louis Cardinals to the Philadelphia Phillies.   After having the information confirmed by a Cardinals front office assistant, Flood immediately called St. Louis general manager Bing Devine and told him that he would not play for the Philadelphia team.   Instead, he intended to retire from baseball altogether.

At that time, and for many years prior, it was not uncommon for players to threaten to retire if they felt their contract terms or assignments were not fair.  Because of a longstanding interpretation of a paragraph in the Uniformed Player’s Contract known as the “reserve clause,” players had no other leverage.   Part of the clause read as follows:

“…If Player and Club have not agreed on such contract…the Club shall have the right to renew this contract for the period of one year on the same terms, except that the amount payable to the player shall be such as the Club shall fix…provided, however, that said amount, if fixed by a Major League Club, shall be an amount payable at a rate not less than 80% of the rate stipulated for the next preceding year.”  

The practiced and accepted interpretation of baseball’s reserve clause was that if a player did not like his salary, the Club could continue to annually set it at no more than a 20% pay cut for as long as he continued to play.   The player was not free to choose a different playing situation or salary offer from another team unless his contract was assigned to another team, or he was released from his contract.  

Bing Devine assumed that the retirement proclamation that Flood soon made public with a press release was just an emotional reaction and a possible negotiation tactic, so he reassured Philadelphia general manager John Quinn that Flood would eventually report to the Philadelphia team.   Flood had other thoughts, referring to Philadelphia as America’s “northernmost southern city.”   He had heard stories about how, in 1947, the Phillies management had urged Jackie Robinson’s Brooklyn Dodgers not to “bring the N--- here with the rest of the team,” and how they had been the last National League team to integrate 10 years later.   He also heard stories about racist treatment, by Philadelphia fans, of Richie Allen, a player for whom Flood had just been traded.   More than anything, Flood felt that it was inherently unfair that he could be forced, in an instant, to disrupt the foundation of relationships and community that he had spent 12 years of his life developing just because two other men struck a business deal.

As a player for the St. Louis Cardinals in the 1960’s, Flood had experienced tremendous success.   In 1964, he helped lead the team to a World Series title by leading the league in hits and earning a Gold Glove Award for his play in center field.   The Cardinals also made two more World Series appearances with Flood as their centerfielder, winning another championship in 1967, and losing in seven games in 1968.  During the decade of the 1960’s, Curt Flood established himself as a legitimate baseball superstar batting over .300 six times and winning seven Gold Glove Awards.  

Meanwhile, his salary gradually increased as time progressed, but the passage of time and the emotional and mental challenges of being a Black ballplayer in the minor leagues during the earlier parts of his career had taken their toll on his psyche and his body.   After the 1968 season, in which Sports Illustrated magazine declared him “baseball’s best centerfielder,” Flood had threatened to retire if he did not receive a raise from his salary of $72,500 to $100,000 per season.   During that time $100,000 was the threshold that separated the superstars from the good players, and knowing that the Uniform Player’s Contract permitted a salary reduction of no more than 20% from the prior season, Flood figured that he could play for a few more years and have enough money to live comfortably through his portrait studio businesses.   Cardinals’ general manager, Bing Devine, ultimately convinced Flood to come back and play the 1969 season for $90,000, and Flood batted .285 and earned another Gold Glove Award that year.

However, Flood’s stance over his assignment to Philadelphia after the 1969 season was much more resolute.   Instead of committing to report to his newly assigned team for the coming 1970 season, Flood consulted with a couple of close friends and St. Louis attorney, Allan Zerman, about alternatives.   After considerable thought, Flood made the decision to sue baseball over the reserve clause and contacted the newly selected executive director of the Major League Baseball Players Association, Marvin Miller, for guidance on how to proceed.

In November 1969, Curt Flood and his attorney Allan Zerman met with Miller and his general counsel Dick Moss to discuss the issue.   During the meeting Miller reviewed the history of how the Sherman Antitrust Act, which declared any contract combination or conspiracy that restricted trade among several states illegal, did not apply to professional baseball.   This was because in 1922, the Supreme Court had ruled that the transportation of players from state to state was incidental to the business of baseball and the game itself was played wholly intrastate.   In essence, it was going to be a steep uphill battle for Flood to sue baseball over a clause in his contract that prevented him from negotiating terms with a team of his choosing because the law that ostensibly protected that right did not apply to baseball.   The exception given to professional baseball was and still is commonly known as “baseball’s anti-trust exemption.”

There had been a handful of challenges to the federal monopolistic exemption granted to Major League Baseball in other years by minor league teams, lower-profile players, and even municipalities, but in most instances, the complaints either failed to progress through the lower courts or a settlement was reached.  Even after 1922, when the business of baseball with its interstate television and radio broadcasts was clearly interstate commerce, the original Supreme Court ruling on baseball’s exemption from the Sherman Act remained insulated by a principle called “stare decisis,” which translates to “let the decision stand.”   “Stare decisis” is frequently practiced at the federal level of the judicial system in order to maintain the integrity and force of the court’s rulings.   The Supreme Court is extremely reluctant to reverse a previous decision, or even hear a case that is submitted to overturn one.   Nevertheless, in 1953, a new challenge by a minor league player named George Toolson, who wanted to be released from the Yankees minor league system, was heard at the Supreme Court level.   The end result was that the court determined baseball had relied on the exemption for many years to conduct business, and it was up to the United States Congress and not the courts to revoke the anti-trust exemption.

Aware of the unlikelihood that he would prevail in the lawsuit, and of the effect that filing suit against baseball might have on his career, Flood took a little more time to consider his options.   After respectfully declining a $98,000 contract package from Philadelphia general manager John Quinn, Flood headed to Puerto Rico to meet with Miller and to explain to 25 player representatives why he was suing baseball and why he was requesting the assistance of the Players Association to pay his legal fees.   Initially, the players in the group were skeptical because they had all seen or done the “I’m retiring” routine before to get more money or a better situation.   They were also concerned that Flood would back down and accept a hefty settlement to drop the lawsuit while the association picked up the legal fees.  

Some of the players in attendance at that critical meeting in Puerto Rico included Tim McCarver (Flood’s former teammate), Jim Bunning (now a U.S. Senator), Roberto Clemente, Brooks Robinson, Reggie Jackson, Woody Woodward, Joe Torre, and others, and they all asked very thoughtful and honest questions before agreeing on behalf of the rest of their Players Association constituency to use union funds to cover Flood’s legal bills.   One representative from the Dodgers, Tom Haller, caused the room to go silent when he asked if Flood was challenging the system because he was Black.   He wanted to know if Flood’s decision to sue was part of some Black militancy movement against authority.   Flood acknowledged the question as a fair one and answered by saying that the reserve clause was an injustice that affected players of all races and it was time that someone did something about it.

The process continued with Miller selecting a renowned attorney and former Supreme Court Justice by the name of Arthur Goldberg to lead Flood’s legal team.   Miller and Goldberg then assisted Flood in drafting a letter to baseball commissioner Bowie Kuhn (with a copy to Philadelphia GM, John Quinn) declaring that he was “not a piece of property to be bought and sold irrespective of his wishes” and requesting that the commissioner make known to other Major League Clubs his desire and right to consider offers from them before making a decision on a contract offer from Philadelphia.   Kuhn, who desired to be known as an impartial arbiter and beacon for the game, responded as anticipated, stating that Flood was bound to negotiate and play for Philadelphia in accordance with the provisions of his contract, and unless he had a specific complaint about improprieties, he would be obligated to play for them.   A few days later, on December 30, 1969, stories were released in the New York Times and New York Post indicating Flood’s intention to challenge the reserve clause and sue Major League Baseball.  

Once it hit the national media outlets, Flood’s suit became a story of interest, and on January 3, 1970, Flood taped an interview with Howard Cosell for ABC’s Wide World of Sports.   During the interview Flood explained that there was nothing more damaging to a person’s ego as a human being than “being traded or bought and sold like a piece of property.” Cosell then asked him the question, “It’s been written…that you’re a man who makes $90,000 a year, which isn’t exactly slave wages.   What’s your retort to that?”   “A well-paid slave is nonetheless a slave,” was Flood’s reply.   At a time when the median household income in the country was under $35,000, and many [w]hites were still resentfully adjusting to their perceived concessions to the Civil Rights Movement, Flood’s comments became quite controversial.   The response also did not escape the earshot of hard-working Blacks who continued to struggle for the bare minimum in socio-economic equality.   Of course, the national media sensationalized the remarks leading to considerable public vilification for Flood, while the numerous racially dehumanizing experiences that marked his ball-playing past were never sufficiently conveyed to allow the public to better understand the true sentiments behind his words.

Regardless of the lack of public support or understanding, the process moved forward to the first stage.  Flood’s Goldberg-led legal team attempted to secure a preliminary federal injunction to prevent the trade to Philadelphia from occurring so that he could continue to play for St. Louis until a trial could be heard and decided.   The injunction was denied by New York federal judge Irving Cooper on March 4, 1970, ensuring that the 32-year-old Flood would miss the season that year as a result of his refusal to play for Philadelphia.   Shortly afterward, the case was permanently assigned to Cooper who ultimately decided that it warranted a full trial.  

Flood’s civil trial before Judge Cooper, naming commissioner Bowie Kuhn, the two league presidents, Charles Feeney and Joe Cronin, and the 24 major league owners as defendants began on May 19, 1970.**   Unfortunately, because of its high profile nature it left too much room for ulterior motives, personal agendas, and other distractions.   The first sign of trouble was when Flood’s lead attorney, Arthur Goldberg, broke his promise to Marvin Miller not to re-enter the political arena and declared his candidacy for the New York state gubernatorial race.   Although Goldberg assured Miller that he would still be involved and that his highly competent partner, Jay Topkis, would do good work, the Flood legal team made a critical mistake by neglecting to prepare Flood properly as a witness for his own case.   When Flood took the stand, Judge Cooper continuously and sternly reminded him to speak up, and the abrupt objections from the opposing lawyers caused him to become fidgety and anxious; he could not even remember basic facts like his salary figures and batting averages that he had easily recalled in less hostile settings.   It also didn’t help that one of Judge Cooper’s underlying reasons for even allowing the case to be heard in a trial was to re-establish himself as a renowned juror and to interact with celebrity figures in the sports world.

One of those celebrities was an aging Jackie Robinson who appeared at the trial to testify on Flood’s behalf.   Robinson, who approached the witness stand with white hair and on legs stricken by the painful effects of diabetes, was Flood’s childhood hero.   Flood had worn number 21 on his Cardinals jersey because it was one half of Robinson’s old uniform number, 42, and now Robinson’s presence at his trial, served to rejuvenate and remind Flood of the importance of sacrificing for those that would follow.

It had become increasingly difficult for Flood to cope with the hostile public scrutiny and hate mail that he had been receiving, and he was also starting to second-guess himself for turning down a $90,000 salary.   However, watching and listening to Robinson on the witness stand inspired him to continue his battle.   Neither Judge Cooper nor the opposing counsel could rattle Jackie Robinson with their questioning.   Before the trial, Robinson had commented in the media that Flood was doing a service for all players in all leagues and commended his courage for asking for the right to negotiate.   During his testimony he claimed that “anything that is one-sided in this country is wrong” and that the reserve clause was one-sided in favor of the owners.   He went on to say that he believed the reserve clause to be so one-sided that players had no control over their own destinies.   Robinson himself had re-taken control of his own destiny in 1956 by retiring and accepting a position at Chock Full o’ Nuts after the Dodgers tried to trade him to their rivals, the Giants.

Two other former players testified on behalf of Flood’s complaint, Hall-of-Famer Hank Greenberg, and former pitcher-turned-author Jim Brosnan, but not one active player from Flood’s day testified on his behalf or even attended the trial to show support.    Yet, some of his friends in the game did speak words of private and public encouragement.   Friend and former teammate, Bob Gibson, told Flood that he supported him but planned to stand “a few hundred paces behind him.”   Outfielder Vada Pinson, who knew Flood from their high school days in Oakland, proclaimed, “Curt’s doing it for all of us, but it’s too bad all of the players don’t dig what he’s doing.”   Not surprisingly, many of the players who chose to side publicly with ownership were the [w]hite superstars making over $100,000 per season.   Gibson defended his friend to that end by publicly stating the following:

“Guys who come out against it, see themselves as having futures in baseball management.   How many Black guys you know [who] are going to make it in baseball management?”

On August 12, 1970, Judge Cooper finally issued a decision on Flood’s case against the commissioner and the team owners using 47 pages to state that he could not overturn the Supreme Court’s earlier decision upholding the anti-trust exemption and that he rejected Flood’s other claims (intrastate antitrust violations and involuntary servitude).   Cooper had also achieved his ulterior motive of achieving renewed visibility as a competent juror while Flood became more withdrawn as he struggled to deal with his life without the game that he had played at the highest level for more than a decade.   He continued to stay the course, but he became more and more disinterested in participating or even attending the subsequent proceedings.   He began to morph into a one man island, understanding why his fellow players had not taken a more active role in visibly supporting him during the trial, but feeling deeply hurt nonetheless.

Flood’s legal team continued to press forward and on January 27, 1971, they presented their argument in Manhattan before the United States Court of Appeals for the Second Circuit.   It was their last step before submission to be considered for a Supreme Court hearing.   On October 19, 1971, Curt Flood’s case was granted “cert” to be heard before the Supreme Court, but the case was not scheduled until March 20, 1972, because two justices had retired from the court at the end of ’71, and they needed to be replaced.   Two years had passed since Flood’s initial preliminary injunction hearing with Judge Cooper, and the 34-year-old ballplayer was about to have his complaint against Major League Baseball’s reserve clause heard before the United States Supreme Court.  

Financial hardships prevented Flood from attending the proceedings, and Marvin Miller, who had become heavily involved in solidifying the Players Association’s position in their collective bargaining negotiations, was also unable to attend.   However, Arthur Goldberg, who had recently been defeated by Nelson Rockefeller in his bid to become governor of New York, was available again to devote his full attention to the case.   Since Goldberg was a former Supreme Court justice himself, Miller selected him to make the argument before the court.   Unfortunately, due to his lack of familiarity with developments in the case, the length of his layoff from arguing high-stakes trial law, and the possibility that he was overly confident, Goldberg ended up making one of the most unimpressive courtroom arguments of his career.   The Supreme Court ruled in favor of the owners and upheld baseball’s anti-trust exemption on June 19, 1972, by a vote of 5 to 3 (one justice disqualified himself from the case because he owned stock in Anheuser-Busch whose president, Gussie Busch, also owned the St. Louis Cardinals team that had traded Flood in the first place).

Although the Supreme Court ruling landed in the owners’ favor, each of the judges that heard the case on the various levels made it clear to them that baseball’s anti-trust exemption and the legitimacy of the reserve clause remained on increasingly tenuous grounds.   The duration and fervor of Flood’s challenge to a previously impenetrable operating system also allowed union leader Marvin Miller to garner key concessions from the owners’ softened negotiation stance.   One of those concessions was the right for players to have their grievances heard by an independent and neutral labor arbitrator instead of the baseball commissioner.   With the renewed public awareness of baseball’s reserve clause that resulted from Flood’s suit, a running debate developed as to how it should be correctly interpreted.   Could a player be reserved on a team’s roster in perpetuity, or was a team’s right to reserve the player terminated exactly one year after his renewal date if he refused to sign a contract?   Since the courts had refused to interfere with baseball’s autonomous ability to interpret its own rules, Miller found two players who were willing to let an arbitrator decide on the interpretation.   In 1975, pitchers Andy Messersmith and Dave McNally submitted their complaints to an arbitrator claiming the right to free agency after one year passed from the date of their contract renewals.   The arbitrator ruled in favor of their complaints and they were granted free agency.   Shortly afterward, Marvin Miller was able to leverage the Messersmith-McNally victory to modify the reserve clause in the 1976 Basic Agreement (between the players and owners) so that players who played without signed contracts for the 1976 season or who had six years of major league service would be free agents at the end of the year.   Reggie Jackson, one of the player representatives in Curt Flood’s 1969 meeting in Puerto Rico, signed the largest free agent contract that off-season by agreeing to a 5-year deal for $3 million with the New York Yankees.

Curt Flood went through a period of time where he worked to sort through his bitter feelings about his ordeal, but he continued to put on a proud public face.  He sincerely did not begrudge the players who had benefited from his sacrifices claiming that they were making more money because it was deserved, and that the players are the show.   He knew all about the hard work involved in being a successful player in the Major Leagues.   However, he also did not withhold his opinion about the Messersmith-McNally decision stating, “There was no way a Black man was going to win that suit…it eventually took two [w]hite guys, Andy Messersmith and Dave McNally, to destroy the reserve clause.   Their battles were appreciably the same as mine.”

Flood went on to hold various positions with several other baseball organizations outside the realm of Major League Baseball and received awards from the NAACP and AFL-CIO acknowledging his sacrificial crusade for justice.   The city of Oakland even dedicated the Curt Flood Park and Sports Complex in his honor.  

On January 20, 1997 (Martin Luther King Jr. Day), Curt Flood died at the age of 59 from throat cancer…

“Guy with [27 home runs and 81 RBIs] and can’t get a job. Pretty much sums it up right there… You’ve got some guys who miss a year who can come back and get $5, $6 million, and a guy like Jermaine Dye can’t get a job. A guy like Gary Sheffield,… a first-ballot Hall of Famer, can’t get a job. …We both know what it is… You’ll figure it out. I’m not gonna say it because then I’ll be … Call it what you want to … I ain’t fit to say it. After I retire I’ll say it. I’ve got a whole bunch of stuff to say after I retire.”

If he were to hear those recent comments made by Orlando Hudson, Curt Flood would smile in his grave to know that his sacrifices, on the heels of those of Jackie Robinson, had put players who had missed a year of playing time in a position to make millions of dollars per year.   He would also smile in knowing that his efforts helped to put Jermaine Dye and Gary Sheffield in the position to choose their own conditions of employment (whether they actually secure a job or not) and that even basketball players like Lebron James are able to leverage and accept or reject a commitment from their current employer because they have the right to choose a different one.   Finally, he would be proud that players like Hudson are still willing to speak out if they sense an injustice no matter how much money they make.