A Well-Paid Slave

The February 3 preliminary injunction hearing was Flood’s last chance of playing baseball in 1970. Only an injunction could block his trade to Philadelphia, thus keeping him in a Cardinals uniform or making him a free agent. Otherwise he remained the property of the Phillies and planned on sitting out the season.

For Flood’s legal team, the hearing was a formality. None of his lawyers expected to win. Requesting an injunction was simply a way to get Flood’s case before a federal trial judge as quickly as possible. The question was which judge. Judge Bonsal was only the motions judge. Another judge would be randomly assigned to the injunction hearing and probably preside over the trial. Jay Topkis hoped for anyone but the judge who was assigned to the injunction hearing—Irving Ben Cooper.

In 1962, former U.S. attorney general Herbert Brownell, several past and future presidents of the American Bar Association (ABA), and numerous lawyers testified against Cooper’s nomination to the federal bench. The ABA found Cooper “not qualified.” The president of the Association of the Bar of the City of New York testified that Cooper had been “emotionally unstable for a number of years.” As a state criminal court judge, Cooper was famous for his temper tantrums on and off the bench. He berated and humiliated lawyers so frequently that they called it being “Cooperized.” In April 1955, he accused a New York City bus driver of trying to run him over as he rode his bicycle on Riverside Drive, twice called the bus driver “a son of a bitch,” and engaged him in a shoving match on the sidewalk. A few days later, Cooper ordered the driver to appear in his courtroom and then refused to accept “an apology from any scum like that.” In January 1960, when Cooper resigned as the chief justice of the court of special sessions, he cited “personal wear and tear” and “constant anxiety, irritation and strain.”

The son of a British tailor, Cooper came to the United States at age nine. He grew up in New York City and Missouri and worked his way through the University of Missouri and law school at Washington University in St. Louis. He made his name in New York City as a government lawyer investigating ambulance-chasing lawyers, dirty doctors, and Jimmy Walker’s corrupt mayoral administration. Mayor Fiorello H. La Guardia appointed Cooper a city magistrate in 1938 and a year later made him an associate justice on the court of special sessions, the city’s criminal court. Cooper later became chief justice of the special sessions court and, according to one Legal Aid lawyer, behaved “like a baby in a high chair.” He called her “a crummy little lawyer from the crummy little Legal Aid Society.” Cooper sometimes held special evening sessions so that he could show off for dignitaries while sentencing juvenile defendants, once telling a group of defendants, “You are all punks.” The lawyers at the criminal court referred to him as “Bellevue Ben.” One of his former judicial colleagues testified that he had “a persecution complex.”

President Kennedy, looking for a Democrat with bipartisan support, nominated the 60-year-old Cooper to be a federal trial judge at the behest of Representative Emanuel Celler (D-NY). Cooper was the most controversial of Kennedy’s first 102 judicial nominees and the first to be challenged by the Senate. Kennedy sought to ensure Cooper’s eventual confirmation by putting him on the bench as a recess appointment. Cooper managed to behave himself during his trial run on the federal bench, and both Republican senators from New York eventually supported his nomination. Six months, numerous appearances before the Senate Judiciary Committee, and 399 hearing transcript pages later, Cooper was confirmed. The only way to get rid of Cooper, a life-tenured federal judge, was impeachment.

Cooper spent the remainder of his judicial career trying to prove that he deserved his position. He struggled to keep his Dr. Jekyll/Mr. Hyde personality in check. He terrorized his law clerks and litigants. In 1969, Alan Dershowitz appeared in Cooper’s courtroom and incurred his wrath. Cooper called Dershowitz into his chambers and for no apparent reason “screamed at me the way no judge has ever done.” Cooper usually kept his temper in check during high-profile cases. The Flood case was the biggest to date of Cooper’s career and thus the ultimate opportunity for Cooper to prove himself.

Cooper was the worst combination for Flood—a baseball fan and a publicity hound. Although he would not be able to damage Flood’s lawsuit at the preliminary injunction stage, Cooper could prevent Flood’s lawyers from developing a good factual record as the case made its way to the Supreme Court. Topkis and his Paul, Weiss colleagues did have one thing going for them: The firm’s lead partner, former federal judge Simon Rifkind, had chosen to testify before the Senate Judiciary Committee in favor of Cooper’s nomination. Rifkind’s partners had disagreed with his decision at the time but benefited from it when Cooper drew Flood’s case. Cooper reportedly kept a list in his desk of the lawyers who had testified against him at his confirmation hearings.

The owners’ lawyers expressed their own disappointment in landing Cooper. “We got the madman,” one of them said. But they, too, had a trump card. Compared with Flood’s trial team of seven lawyers (five at Paul, Weiss, plus Moss and Zerman), Kuhn and the owners had hired a litigation army. Two law firms, Arnold & Porter in Washington and Donovan, Leisure in New York, represented Kuhn. Paul Porter led a team of six lawyers for the commissioner. Baker & Hostetler, led by Sandy Hadden, represented the American League teams and added three lawyers to the owners’ brief. Willkie Farr, including Lou Carroll and Lou Hoynes, represented the National League teams and added six lawyers. Each team also had its own general counsel keeping tabs on the litigation.

The owners’ ace in the hole was their lead lawyer, Willkie Farr’s Mark F. Hughes. Hughes knew baseball and antitrust law, having represented the New York Giants in the Gardella case. More important, he also knew Judge Cooper. Hughes was former president of the New York County Lawyers Association (NYCLA). NYCLA was divided over Cooper’s nomination and, unlike the ABA and the New York City bar association, refused to send anyone to the Senate Judiciary Committee to testify against him. During his own testimony, Cooper pointed out NYCLA’s absence to the committee. The vice chairman and then chairman of NYCLA’s judiciary committee during Cooper’s nomination fight was Mark Hughes.

On the morning of February 3, lawyers from both sides as well as the press gathered in Cooper’s courtroom, room 1505 in the federal courthouse at Foley Square, for Flood’s preliminary injunction hearing. Neither Flood nor Kuhn was there. Flood’s lawyers sought a preliminary injunction that would make Flood a free agent during his lawsuit, thus allowing any major league team to sign him. They had a high bar to clear—they had to show that Flood would be “irreparably harmed” by not being a free agent and that he had a high degree of likelihood of winning his case at trial. That was a tough argument with two Supreme Court precedents in his way.

In requesting an injunction, Arthur Goldberg made three key points: (1) Judge Cooper was not bound by Federal Baseball and Toolson because subsequent factors, such as radio and television revenues, plainly made baseball interstate commerce; (2) the reserve clause was illegal; and (3) the trade prevented Flood from playing for the team of his choice and was a form of slavery. “The fact that he is a high priced player is completely irrelevant,” Goldberg said. “In the times of the Romans there were very high priced slaves who were counselors to emperors and to generals who had access to kings’ treasury. Price has nothing to do with it. The basic concept is the morality of the situation and the legality of the situation.”

Goldberg concluded by making a “counteroffer” to declaring Flood a free agent: Cooper could allow Flood to continue to play for the Cardinals under his old contract or with no contract at all until the case was resolved. Players were due to report to spring training in 22 days.

When the hearing resumed, Hughes countered that Flood had shown no chance of winning at trial and no irreparable injury. An injunction, Hughes said, would disturb rather than preserve the status quo. He also said that Goldberg was basically asking the court to ignore a binding Supreme Court decision in Toolson.

Hughes attacked Goldberg’s slavery argument by drawing attention to Flood’s salary: “It is very difficult to come to any conclusion that he is a slave. He is certainly making more money than most professional people. He is making more money than most well-paid executives. He is making more money than any judge I know or any writer or any poet or any other occupation you choose to name. It is his choice, your Honor, either to stay within the framework, the reasonable framework of the reserve system, or not to play.”

Hughes also exposed weaknesses in Flood’s contention that his “business may fail if I am forced to leave St. Louis.” Flood had opened two photographic studios and a portrait studio in St. Louis. Hughes said that Flood’s request to negotiate with other teams conflicted with his argument that he needed to stay in St. Louis to support his “fledgling business.” Hughes also read a January 18 St. Louis Post-Dispatch advertisement for Curt Flood Studios, Inc., listing its headquarters as Lincoln-wood, Illinois, a Chicago suburb. Hughes and the owners never pursued Flood’s photography or portrait business any further. If they had, they might have uncovered the secret behind Flood’s portraits.

Hughes concluded his argument by taking the sky-is-falling approach. He claimed that “if this system as it now exists and has worked through the years is destroyed, your ball players coming up won’t have any leagues to play in.”

Judge Cooper declined to decide on the spot whether to grant the injunction. Instead, he gave both sides 20 days to file any additional briefs. Cooper, however, could not resist showing the press that he was a great baseball fan. “You have thrown the ball to me,” he said. “I hope I don’t muff it.”

He concluded the hearing by comparing his job to that of an umpire: “You do not ask that he shall never make a mistake or always agree with you or always support the home team. You want an umpire who calls them as he sees them. That, I promise you, I shall do.”

Flood was not amused by Judge Cooper’s comments. Nothing amused Flood these days. There had been an unreality to the first few months of his decision to quit the game and sue baseball. Aside from the added media and fan attention, November, December, and January had seemed like any other offseason. But by February’s preliminary injunctionhearing, the reality had begun to sink in that for the first time in 13 years he was not going to spring training with the St. Louis Cardinals. As part of his ongoing effort to undermine public support for Flood, Dick Young reported that the Phillies had increased their offer to $105,000 and that Flood was “having second thoughts about his slave-status.” Flood’s only thoughts were of not playing baseball in 1970 and of despair.

Flood’s world came crashing down. He had put his portrait sales on hold. His photography business was on the rocks. So was his relationship with Claire, the woman he had met in Denmark. His chances of opening a bar in Copenhagen crumbled along with it. Flood went from not being able to sleep at night to not being able to keep food down. The tension also took its toll on his good friend Marian Jorgensen, whose nose began to bleed so badly that she had to be hospitalized. Flood cried over how his lawsuit had affected both of their lives.

Needing money and a new challenge, Flood embarked on a career as an author. He collaborated on an article for Sport magazine’s March 1970 issue titled “Why I Am Challenging Baseball.” He also began working on a book, thanks to a phone call from an old Sally League adversary, Dave Oliphant. Oliphant had pitched against Flood as a member of the Macon Dodgers. Originally signed by the Yankees for $3,000, Oliphant, a Jew, experienced so much anti-Semitism from his minor league manager that his father purchased his contract for $2,000. The Yankees gave Oliphant’s family $1,000 back after he hooked on with the pitching-rich Dodgers. Oliphant never made the major leagues, but the unfairness of the reserve clause stuck with him as a Connecticut businessman. The president of a small publishing company and a consultant for Simon & Schuster, Oliphant set Flood up with Herbert Alexander, an editor at Simon & Schuster’s Trident Press.

Alexander found Flood a collaborator in Richard Carter. The author of several nonfiction books about science and medicine, Carter also wrote books about handicapping horses under the pseudonym Tom Ainslie. To disassociate them from gambling, Carter wrote under his given name with Flood. In late February, Carter arrived in St. Louis and stayed at the Holiday Inn on the publisher’s dime. After a few weeks, Alexander became alarmed because he could not reach Carter. Flood’s collaborator had neglected the book and immersed himself in the ballplayer’s lifestyle of drinking and partying, spending his nights at Flood’s favorite hangout, the Playboy Club in St. Louis. In mid-March, Alexander ordered Oliphant to pay Carter and Flood a surprise visit. “I read them the riot act,” Oliphant recalled.

That same afternoon, Flood pulled two baseball gloves out of the trunk of his car. He and Oliphant played catch in the parking lot of Flood’s apartment building, the Executive House. Flood’s mood lightened. Later that afternoon, he and Oliphant put on an impromptu Ping-Pong exhibition at a nearby recreation center. For three hours, Flood was like a different person—upbeat and sober. Without baseball, drinking had come to dominate Flood’s life. He no longer had an incentive to remain sober each day. “Curt was addicted to alcohol,” Oliphant said. “There’s nothing new that I can tell you about that. It was his demon.”

Flood and Carter promised to change their ways and get to work on the book. After Oliphant returned home to Connecticut, they finished most of the book in about 30 days. “I really thought Curt was getting it turned around,” Oliphant said. The drinking, however, resumed. And the bad news kept coming.

Judge Cooper’s inevitable decision came down March 4, denying Flood’s request for a preliminary injunction. Cooper issued a scholarly 55-page decision replete with 71 footnotes. He wrote about every facet of the case and, despite only denying the request for an injunction, indicated how he was likely to decide a possible trial. Cooper’s order made no secret of his love of the game:

Baseball’s status in the life of the nation is so pervasive that it would not strain credulity to say the Court can take judicial notice that baseball is everybody’s business. To put it mildly and with restraint, it would be unfortunate indeed if a fine sport and profession, which brings surcease from daily travail and an escape from the ordinary to most inhabitants of this land, were to suffer in the least because of undue concentration by any one or any group on commercial or profit considerations. The game is on higher ground; it behooves every one to keep it there.

Cooper was not likely to find that baseball no longer deserved its antitrust exemption. Nor did anyone expect him to make such a ruling. Only the Supreme Court could reverse its own precedents. Cooper’s overriding concern seemed to be the legality of the reserve clause. In concluding his opinion, he acknowledged that “[f]or years professional ballplayers have chafed under the restrictions of baseball’s reserve system. . . . Many of their grievances appear justified.” Cooper said that the only way to resolve them was through a “full trial.” Nine days after the March 4 order, the chief judge of the district court permanently assigned the case to Cooper.

The day of Cooper’s decision, Flood released a statement announcing what he had known all along—he would not be playing baseball in 1970. Flood called Zerman, who lay in bed with the flu and a 102-degree temperature, and Zerman drafted and released a two-paragraph statement. “The failure to obtain a restraining order means I’ve lost my one chance to play ball this year,” Flood’s statement said. “I can only hope that after a full hearing on the merits that my position will have been vindicated and that my career will not have been ended by the time lost pursuing what I believe to be right.”

Flood told Jorgensen to put off numerous interview requests. The last thing he wanted to do was talk to the press. He told Carter that he did not want to lie to reporters that his photography business was booming (it wasn’t), that he was painting portraits (he certainly wasn’t), or that he could live without baseball (he couldn’t). Four days earlier, the St. Louis Cardinals’ position players had reported to spring training. Flood’s body— except for that brief afternoon playing catch with Oliphant—was going through baseball withdrawal. “I’m a baseball player and I’m supposed to play out my string,” Flood told Carter that day. “I’m supposed to be in Florida now, romping around and hitting the ball and cussing with Gibson and banging the chicks.”

Flood confronted the reality that his baseball career was over. He decided to make his conclusions public by instructing Jorgensen to arrange a press conference on the afternoon of March 5 at Zerman’s Clayton, Missouri, law office. That morning Flood took Claire to the airport for her noon flight back to Denmark. It was a permanent farewell. Flood drowned his sorrows at the airport bar and hid his pain behind a pair of big, dark sunglasses. At the press conference, he wore a double-breasted black sport jacket, light purple shirt, and plaid trousers. Before the assembled reporters, he removed his sunglasses and then exposed his soul. “It’s my life, and I’m on pins and needles,” he said.

Flood shared his belief that Cooper’s order meant the end of his baseball career. “Let’s face it, I’m 32 now and if the case does drag on for two years, I’d be 34. It would be difficult to come back. And besides, I don’t think I’ll get the opportunity to play again. As big as it is, base-ball is a closely knit unit. I doubt that even one of the 24 men controlling the game would touch me with a 10-foot pole. You can’t buck the Establishment.”

Flood said the Phillies had offered him a salary “very close” to $100,000 but he had turned it down. “I’m not a millionaire but I’m not that bad off, either,” he said. “Sure, it’s tough to turn your back on $90,000 or $100,000 a year, but the reserve clause is not democratic and I intend to continue my fight.” He denied rumors that he was being compensated by the Players Association. He mentioned his new book contract with Simon & Schuster as proof that he would not starve. He tried to place Judge Cooper’s decision the previous day in perspective. “It’s just the first step in a long battle,” he said. “I do not intend to give up. People literally died for a cause such as mine, and I feel as strong as ever about my rights.”

The day after Judge Cooper’s decision, Mr. Justice Goldberg delivered an unexpected blow to Flood’s lawsuit. Goldberg gave a speech at Columbia University designed to revive his candidacy for governor. He had been meeting with New York politicians since February about a possible gubernatorial run while continuing to deny publicly any interest in electoral politics. Several former aides were trying to talk him into the race. Before Goldberg’s speech at Columbia, the New York Times ran a front-page story saying he was using it to test the political waters.

New York politics at that time was dominated by four parties: Conservative,Republican, Democratic, and Liberal. Liberals blasted Goldberg for his role in promulgating Johnson’s Vietnam War policy as UN ambassador. Despite Goldberg’s behind-the-scenes efforts to end the conflict, New York Post columnist Pete Hamill wrote that Goldberg should be tried as a war criminal. But the polls still showed that Goldberg held a sizable lead over incumbent Nelson Rockefeller. Goldberg went to Columbia, the heart of the antiwar student movement, to test out his message before 400 students and 17 radio and television stations. “I don’t want to contribute to the polarization of liberal forces in this country,” he told a student who asked about his possible candidacy. Goldberg talked about the Black Panthers and criticized the contempt convictions of the “Chicago Seven” by Judge Julius Hoffman. He attacked Governor Rockefeller but again denied any interest in being a candidate. “How can you revive a non-candidacy?” he asked.

In an interview at his office the day after his Columbia speech, Goldberg pointed to another reason why he was not running. “Meanwhile, goddamnit, I have to take care of Curt Flood!” he told the Village Voice. “We’ll be asking for an immediate trial—he ought to proceed at once. So that’s where I’ll be next week in New York!” At least one newspaper columnist suggested that the Flood case would propel Goldberg toward the 1972 Democratic presidential nomination. But Goldberg took on the Flood case—just as he had appealed William Sloane Coffin’s draft conspiracy conviction, fought for the Alaskan Indians, and co-chaired the Black Panther commission—because of his profound belief in social justice, not for political gain.

On March 19, Goldberg made it official: He was running for governor. He had allowed the New York politicians to seduce him into believing that he would be handed the Democratic gubernatorial nomination and easily defeat Rockefeller in November. His ego and ambition once again clouded sound personal judgment. He had also broken his promise to his friend Marvin Miller about not running for office.

Miller called Goldberg on March 19 and 20 from Sarasota, Florida. Miller was on his annual tour of spring training camps updating players about the labor negotiations, Flood’s lawsuit, and other union matters. He did not have the heart to criticize Goldberg for sacrificing his commitment to Flood’s case. Nor would it have done any good. He wanted to discuss the legal team’s next move.

Goldberg still planned on taking an active role in Flood’s lawsuit but turned over the day-to-day management of the case to his partner, Jay Topkis. Topkis had played a major role in Goldberg’s other important cases. When Coffin hired Goldberg to appeal his draft conspiracy conviction, Goldberg told him: “Topkis will do all the work. He’s as good as I am.”

At this stage in their legal careers, Topkis was better. He was an anti-trust expert, one of the firm’s best brief writers, and quick on his feet. Feared by associates and respected by opposing counsel, he was one of the few partners who called Goldberg “Arthur.” Goldberg’s decision to run for governor delighted Topkis. It meant that he would get to try the bulk of Flood’s case without Goldberg looking over his shoulder.

For Topkis, Flood’s case was personal. As a Yale law student in 1949, he wrote an essay for Professor Fred Rodell’s expository legal writing class about the Gardella case. Rodell sent Topkis’s essay to Red Smith, who liked it so much that he ran part of it as one of his columns in the New York Herald Tribune. For Topkis, who had grown up in New York City reading Smith in the Herald Tribune, it was a dream come true. Rodell also recommended Topkis for a postgraduate clerkship with the most outspoken voice in Gardella, Judge Jerome Frank. While clerking for Frank, Topkis arranged a lunch with Smith and the judge. Topkis also turned his essay into an article for the Yale Law Journal, titled “Monopoly in Professional Sports,” which called for an end to baseball’s anti-trust exemption. Flood’s case gave Topkis the chance to vindicate his judge’s Gardella opinion, his literary idol’s columns, and his own belief that Justice Holmes had gotten it wrong in Federal Baseball.

Before handing over the reins to Topkis, Goldberg won a critical victory. At a March 24 closed hearing in his chambers, Cooper announced to lawyers from both sides that he was inclined to grant an early trial. Goldberg said all the right things to make it happen, reminding Cooper what was at stake. “It is of great importance to the industry and of great importance to this man,” Goldberg said. “The season is starting April 6th. He is not playing ball.” Goldberg agreed not to file written responses to any of the owners’ motions and not to slow the process by disputing any of the case’s essential facts. “We are ready to go to trial,” Goldberg said. “We will take one day. I might as well tell you that. Or perhaps part of a day. We do not intend to encumber this record with non-essential matters.”

Goldberg corrected Porter’s insulting characterization of the 32-year-old Flood: “Flood is a mature man. He knows his mind. He made it up before he came to see me. I interrogated him at length as to the consequences and difficulties about litigation, possible duration, all of these I went through. He is not uninformed. I saw to it that he was informed in this issue. He knows precisely what he is doing and the evidence of that will be apparent when this proposal is renewed. He submitted another offer, which was to play in St. Louis without prejudice.”

Carroll reminded Cooper that preparing for a trial was not as simple for the owners as it was for Flood. After a brief off-the-record discussion, the lawyers agreed to reconvene at Cooper’s chambers on March 31 to discuss potential trial dates.

Cooper’s decision to have an early trial was astounding. He agreed that there was no dispute about the facts of Flood’s case and therefore skipped almost all of the pretrial fact-finding process known as discovery. In a modern civil action, discovery could take weeks, months, or even years. Cooper, however, saw no need for the production of a massive collection of documents. Nor did he allow the pretrial interrogation of potential witnesses known as depositions. One reason may have been that document productions and depositions take place largely outside the purview of the judge. Cooper was determined to remain at center stage.

A week later in Cooper’s chambers, the owners argued that Cooper had no choice but to dismiss the case because of baseball’s antitrust immunity per Toolson. Mark Hughes pressed Cooper to rule on the motion to dismiss Flood’s lawsuit. Cooper refused to decide the motion, because that way he could ensure that the case would go to trial. If he granted the motion, the case would be dismissed. If he denied the motion, he probably would have been reversed on appeal because of Federal Baseball and Toolson.

The question returned not to if there would be a trial, but when. The owners wanted to push it back to September. But, realizing that Cooper would not go along with that, they argued for no sooner than early June. They predicted that the defendants’ case could take two weeks. Paul Porter wondered, if Flood was not willing to play this season, “what the rush is on this.” Lou Carroll put it even more harshly: “Mr. Flood has waited fourteen years to assert a principle, which, if accepted, would destroy a structure that has existed for over a hundred years.”

Goldberg wanted to begin the trial immediately. “The rush is a simple rush,” he said. “The rights of an individual are at stake. With due respect, the rights of that individual are as important to me as the rights of twenty-four club owners. . . . Our posture is simple: It is an illegal transfer. He will not submit to illegality. He has a right to take that posture. He may have to pay a heavy price for it. I think he is being made to pay a heavy price by protracted litigation.”

As he so often did in these pretrial conferences, Goldberg injected his personal experiences on the Supreme Court and as a candidate for governor into the discussion. In doing so, he reiterated his commitment to litigating Flood’s case: “I was told by my political managers that I ought to be in Grossinger’s, shaking hands with adversaries. I am not there. I represent a client, and that takes priority over everything, and I have an engagement with a Judge. They will have to get along without me, whatever the consequences are. Now, we want an early trial, and by an early trial we mean an early trial.”

The next day at Grossinger’s, a Catskills resort, Goldberg won the State Democratic Committee’s designation for governor—but not without incident. Representative Shirley Chisholm (D-NY) organized a walkout of some delegates and attacked Goldberg as a candidate of the party bosses. After he won, Goldberg renounced the party’s endorsement to fend off Chisholm’s charges of backroom party politics and instead chose to get on the ballot by obtaining the requisite number of signatures. The crowd booed and hissed at him as he made the announcement.

Cooper’s decision ignored a fundamental rule—only the Supreme Court could reverse its own decisions. He was bound by Federal Baseball and Toolson, which compelled him to dismiss Flood’s lawsuit because of baseball’s antitrust exemption. If this were a case about widgets, any federal judge in America would have granted the owners’ motion to dismiss. But it was not about widgets; it was about baseball. And this was not just any federal judge; it was Irving Ben Cooper.

At best, Cooper ignored two controlling Supreme Court precedents because he wanted to give the court of appeals and the Supreme Court a complete factual record about the reserve clause’s legality. At worst, he wanted to preside over a case about baseball and to show the world that he was a competent federal judge. During pretrial hearings, Cooper sought to dispell such notions. “I think it would be dead wrong if this judge or any judge sought in this trial the publicity angle,” he said on March 31.

Bowie Kuhn was working behind the scenes to avoid a trial. As the commissioner and protector of the integrity of the game, he saw Flood’s lawsuit casting a pall over the 1970 season. Kuhn had already struck out once that spring in an attempt to protect the game’s integrity. Detroit Tigers pitcher Denny McLain, winner of the American League’s last two Cy Young Awards, had lost $5,700 investing in a Flint, Michigan, bookmaking operation. After two meetings with McLain, Kuhn suspended the ace pitcher until July 1. He contended that McLain had been duped into the investment and had not shared in the profits. The light sentence showed how beholden Kuhn was to the owners (in this case the owner of the Detroit Tigers). Kuhn seemed to take challenges to the reserve clause more seriously than he did gambling. Pete Axthelm of Newsweek called McLain’s suspension a “farce.” “The ‘Alice in Wonderland’ quality of the ruling,” Axthelm wrote, “only becomes stranger when contrasted with the case of Flood, who must sacrifice his $90,000 salary entirely in order to test the legality of a clause in his contract.”

The commissioner sent his special assistant, Monte Irvin, as an emissary. An infielder with the Newark Eagles in the Negro National League and an outfielder with the New York Giants, Irvin was a northern-bred, college-educated World War II veteran. His background and ability had placed him high on Branch Rickey’s list of candidates to integrate the game. Unlike Jackie Robinson, however, Irvin was a company man, not a boat rocker. After their playing careers, Irvin and Robinson clashed at a banquet honoring Montclair, New Jersey, high school baseball star Earl Williams. “I don’t owe baseball anything,” Robinson told the audience, “and baseball doesn’t owe me anything.” Irvin took the microphone and tried to smooth things over. “Jackie was great for baseball,” Irvin said, “and baseball was great for Jackie.” The incident cooled relations between the two men. Irvin’s service in the commissioner’s office aided his 1973 induction into the Baseball Hall of Fame.

It was Irvin’s job to get Flood to meet with Kuhn. Irvin called Flood’s St. Louis apartment several times in mid- to late March. The first time he told Marian that Kuhn wanted to arrange a private meeting with Flood. Two days later, Irvin called again and spoke directly with Flood. The commissioner offered to fly Flood out to Los Angeles, where the Dodgers were holding a March 28 benefit game for the King Center, a memorial to Martin Luther King in Atlanta, for a private meeting. The commissioner wanted to talk with Flood and to listen to his concerns. Irvin promised that there would be no publicity.

Irvin was “disgusted.” He thought he had established a rapport with Flood after meeting him through Bill White. Irvin acknowledged that arranging a meeting between Flood and Kuhn would have been “a feather in my cap.” But most important, Irvin could not understand why Flood did not have enough respect for the commissioner to at least meet with him. “I thought he made a terrible mistake in not meeting with him. I lost my respect for him,” Irvin recalled. “I didn’t understand how he could be so stupid.”

Still, Irvin would not give up. He called Flood’s apartment again and spoke with Marian. Irvin, like most people, assumed that Flood “was in love with that secretary.” He told her this was Flood’s last chance to meet the commissioner in Los Angeles. She questioned Kuhn’s motives.

League lawyers had indeed agreed to arrange a trade for Flood to the team of his choice. Flood rejected the offer because it would have meant the end of his lawsuit. As Goldberg had explained to him, even a pretrial agreement between opposing parties not to prejudice ongoing litigation could not prevent a federal judge from declaring the lawsuit moot. The dispute must be real, not hypothetical; one side must have been harmed. To challenge his trade to the Phillies in court, Flood had to show harm by sitting out the season.

AM DISAPPOINTED YOU DECLINED MY INVITATION FOR A PERSONAL CONFERENCE IN LOS ANGELES ON FRIDAY. I DESIRED AN OPPORTUNITY TO DISCUSS WITH YOU PERSONALLY YOUR BASEBALL CAREER WITHOUT PREJUDICE TO THE BASIC ISSUES INVOLVED IN THE PENDING LITIGATION. MY COUNSEL HAS ASCERTAINED FROM YOUR COUNSEL THAT THE LATTER HAD NO OBJECTIONS TO SUCH A CONFERENCE WITH THE EXPLICIT CONDITION THAT HE WAS NOT RECOMMENDING THAT YOU ASSENT OR DECLINE. THIS IS TO ADVISE YOU THAT IF YOU RECONSIDER I WILL CONTINUE TO BE AVAILABLE.

BOWIE KUHN

Kuhn’s insistence on meeting with Flood helped the commissioner perpetuate the myth that he was an impartial judge rather than the owners’ man. It also reinforced the idea that Flood was Miller’s puppet. If Kuhn could just get Flood away from Miller and Goldberg, then Kuhn could talk some sense into Flood. As the commissioner and a fan, Kuhn also wanted one of the game’s better players on the field. That’s why he had talked Clendenon and Harrelson out of retirement. Kuhn did not realize that Flood was nothing like Clendenon or Harrelson. “I can’t be bought,” Flood told players and reporters many times. The owners soon discovered that Flood meant it.

Kuhn had more success resolving the dispute between the Cardinals and the Phillies. For months, the two teams had been unable to agree on additional compensation as part of the Flood-McCarver-Allen trade. Kuhn spoke with Cardinals executives Bing Devine and Dick Meyer and Phillies general manager John Quinn. Even owners Gussie Busch and Bob Carpenter got involved. The Phillies expressed interest in Cardinals third baseman Mike Shannon. Shannon, however, had contracted a career-ending kidney disease. Instead, the Cardinals sent the Phillies a list of players to choose from—not a single major leaguer was on the list. The Phillies spent all spring training scouting the Cardinals’ minor leaguers. On April 8, the Phillies selected outfielder Guillermo “Willie” Montanez. They had until August 31 to select another Cardinals minor leaguer who was not on St. Louis’s 40-man roster in April or who did not join the Cardinals’ active roster later that season. The Flood trade was almost complete.

The Phillies selected Montanez only after going through another month of formalities of trying to get Flood into a Philadelphia uniform. Flood had never gone through with his retirement plans by filing the proper paperwork with the commissioner’s office, so the Phillies were required either to renew his contract or make him a free agent. On March 4, the Phillies sent Flood a notice automatically renewing his contract at $90,000 under paragraph 10(a) of the Uniform Player Contract. After Flood failed to report to spring training with the Phillies by March 15, Quinn requested Kuhn’s permission to place Flood on the restricted list. This prevented Flood from counting against the Phillies’ roster and reassured the Cardinals that Flood would not be playing for another team. Part of the reason Kuhn had contacted Flood through Irvin and by telegram was to avoid putting him on the restricted list. On April 7, the day before they selected Montanez, Kuhn granted the Phillies’ request and placed Flood on the restricted list.

The restricted list placed Flood in close company with some of the game’s most notorious characters. Under the Major League Rules, “[a] player on the Restricted List shall not be eligible to play for any Major League or National Association Club until he is reinstated.” Although Flood or the Phillies could request his immediate reinstatement if he decided to report to Philadelphia, he was technically banned from the major and minor leagues. The restricted list is a close cousin to the ineligible list—home to Shoeless Joe Jackson and the 1919 Black Sox as well as other players banned from the game for gambling and other misconduct. Danny Gardella (for jumping to the Mexican League) and George Toolson (for refusing to report to Binghamton) also found themselves on the ineligible list. Flood was now associated with players who had sullied the game’s image or bucked the system.

For refusing to report to Philadelphia, Flood had been blacklisted from professional baseball. As the major league season started without him on April 6, he sat at home drinking vodka martinis, working with Carter on his book, and waiting for his trial.

On April 23, Cooper issued a 19-page opinion formally refusing to rule on the owners’ motion to dismiss Flood’s federal, state, and common law antitrust claims, as well as his claims of slavery and involuntary servitude. Cooper dismissed the claims against Anheuser-Busch and CBS. He had no other choice because Goldberg had decided not to contest the companies’ opposition motions. Flood’s legal team sacrificed those claims, which were weak and tangential to Flood’s case against the reserve clause, so the rest of the lawsuit could proceed to trial.

In hindsight, if Cooper had relied on Toolson and dismissed the entire case, Flood could have immediately appealed Cooper’s decision to the court of appeals and then to the Supreme Court. A dismissal would have sped up the appeals process and increased Flood’s chances of returning to the major leagues. Flood’s lawyers, however, wanted to develop the facts at trial about the evils of the reserve clause. Cooper gave them their opportunity.