Jeff Berger —

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In 2016, Colin Kapernick began a protest against social injustices experienced by African Americans when he “took a knee” during the playing of the national anthem before a National Football League (NFL) game. Public reaction was highly polarized. After the season ended, Kapernick was blacklisted by the NFL. (The NFL denied this.) Roll forward to 2020: This year athletes in all major sports have been publicly supportive of the Black Lives Matter protests, and this time the team owners are for the most part united with the players. Likewise, public opinion generally supports these actions.

Historically, it is not been unusual for athletes to be at the forefront of controversial social justice movements. Arguably the most notable was Jackie Robinson, a baseball Hall of Famer, who broke the color barrier in baseball in 1947. I think there was no greater factor than the integration of Major League Baseball (MLB) to break down the barriers to integration in housing and many other facets of life. The influence that baseball had on social justice is a testament to the popularity of baseball. Historically, it is not been unusual for athletes to be at the forefront of controversial social justice movements. Arguably the most notable was Jackie Robinson, a baseball Hall of Famer, who broke the color barrier in baseball in 1947. I think there was no greater factor than the integration of Major League Baseball (MLB) to break down the barriers to integration in housing and many other facets of life. The influence that baseball had on social justice is a testament to the popularity of baseball. 

Following in Robinson’s footsteps was a baseball player named Curt Flood. I was recently reminded of Flood when, on September 6, Lou Brock died. Coincidentally, 26 days later Bob Gibson died. Brock and Gibson were teammates of Flood’s when the St. Louis Cardinals won the National League pennant in 1964, ’67, and ’68, winning the World Series in ’64 and ’67. Brock and Gibson are both in the MLB Hall of Fame. Curt Flood is not, but some argue that he should be. Flood played for the Cardinals for 12 seasons. He had 1861 hits with a lifetime batting average of .293. He won 7 Gold Gloves as a great center fielder and was a three-time All Star—not bad considering he was competing against Hall of Famers Willie Mays and Henry Aaron. He was fast, but he was not a big base stealer like Brock. Nor did he have the power of Mays and Aaron. At 5’9”, 165 pounds, he was small for a ball player.

In 1966, Flood’s teammates picked him to be their co-captain along with catcher Tim McCarver, a position that illustrates the great respect they had for him. At Flood’s funeral in 1997, non-athletes Jesse Jackson and George Will also sang Flood’s praises while dozens of the game’s greatest baseball players from the 1960s were in attendance. Will compared Flood to Rosa Parks and compared the US Supreme Court decision against Flood in 1973 (to be discussed shortly) to the infamous Dred Scott decision denying the freedom of a St. Louis slave. Jesse Jackson said that because of Curt Flood, “People are better. America is better.” Sadly, however, not a single player in the game at the time was in attendance. Most of them were too young to know (or took for granted) how Flood’s sacrifices made it possible for them to achieve the seven and eight figure salaries they enjoy today.

Players in Flood’s era were not entirely without recourse, however. They could choose not to play if they were unhappy with the contract being offered to them. That is what Los Angeles Dodgers Sandy Koufax and Don Drysdale (both eventual Hall of Famers) did before the 1966 season. Their issue was all about salaries. They went on strike. But such a strike was not an organized strike, as might happen when a labor union goes on strike, that is, until the players decided to form the MLB Players Association (MLBPA). The players on each team selected representatives to the MLBPA. They chose Marvin Miller to be its executive director. Today’s players owe as much to Miller as they owe to Flood.

Flood lost a couple of years during his early career because of racism, and he cut his playing career short so that he could sue MLB in 1970 over its “reserve clause,” which Flood likened to slavery. The reserve clause bound the players to a team; in effect, the players were owned by the team. The players could choose to either sign the contract or to not play at all. Flood knew that by suing he was sacrificing the remainder of his career. He did it for principle, to ensure that future baseball players would be “free,” that is, “free” as in “free agency,” the freedom for a player to negotiate a contract with any team of his choosing. 

Prior to Flood suing MLB, players could strike to obtain a higher salary, but no other team was allowed to hire them. Furthermore, if a player ever played for a different league, the player would be permanently blacklisted by MLB, which had a protected monopoly on the game of baseball—the US Supreme Court had given MLB a special exemption from federal antitrust laws in its Federal Baseball v. National League decision of 1922. In this case, some of the justices dubiously argued that Congress did not intend for antitrust laws to apply to baseball, because Congress had never said anything about baseball. If Congress wanted to apply antitrust laws to baseball, it should pass a law. But perhaps Congress would have acted if not for the powerful lobbying by MLB owners. Or perhaps Congress would have acted if public opinion supported the players. But, in point of fact, fans liked things the way they were because they didn’t want their favorite players to abandon them. Fans didn’t care or didn’t think about the fairness to the players whom they admired and adored. Nevertheless, because of Flood’s lawsuit against MLB, public opinion did eventually change. More than anything, it was likely this shift in public opinion that forced the owners to make concessions. Neither Congress nor the courts forced the changes.

The MLB in Court

Flood’s lawsuit against MLB made its way to the US Supreme Court in the case of Flood v. Kuhn in 1972. (Bowie Kuhn was Commissioner of MLB at the time.) In Bob Woodward and Scott Armstrong’s The Brethren: Inside the Supreme Court (1979), they wrote a few pages about Flood v. Kuhn, one of many cases (including Roe v. Wade) that the Court was hearing at the time. Justice Harry Blackmun was responsible for writing the majority opinion in both Flood v. Kuhn and Roe v. Wade. The justices were accused of vote trading in these cases, and perhaps even more disconcerting was the way the game of baseball caused Blackmun and the other justices to revert to childish behavior. Blackmun wrote a lengthy ode to baseball, listing the greatest baseball players of all time. Then the other justices demanded that Blackmun include their own favorite players. Allegedly this list became the subject of vote trading. The whole episode reads like a sketch from Saturday Night Live.

Flood lost his case by a 5 to 3 majority. Justice Lewis Powell recused himself because he owned stock in Anheuser Busch, which owned the St. Louis Cardinals. This decision that made little sense given that he said he would have voted for Flood, which couldn’t possibly have had a positive effect on his stock. 

Since the dawn of MLB, every baseball contract contained a reserve clause. The owners claimed that MLB could not survive without it, because if players could be purchased by the highest bidder, the poorest teams could not compete. If the poorer teams could not compete, they would cease to exist, in which case MLB would cease to exist. Many fans believed this, but it is a weak argument. MLB had always survived in spite of teams like the New York Yankees, Brooklyn/Los Angeles Dodgers, and St. Louis Cardinals dominating the MLB. Those teams dominated because they had the most money to develop their farm systems, not because of the reserve clause. 

Further compounding the problem for players was the creation of the MLB draft in 1965. Before there was a draft, young players could choose to sign with any team; it was only after signing that a player became bound to a specific team. But when a player was drafted by a team, even that initial decision was taken away from the player.   

In any case, the MLBPA never asked MLB to eliminate the reserve clause altogether. But Curt Flood did. The difference between eliminating and modifying the reserve clause would become an important distinction during Flood’s trial. Previously, the players had been trying to get the owners to modify it, and the owner’s refused to negotiate. However, by the time that Flood v. Kuhn case arrived at the Supreme Court, the central issue became Flood’s unhappiness about being traded to another team without his consent. That objection was about a player’s right to stay where he was, rather than the freedom to go someplace else. Flood wanted the right to veto a trade.

Still, Flood’s lawsuit was really about more than the right to veto a trade. It was about the freedom to choose where to work. Flood helped destroy the myth about employer or employee loyalty. The boss will reassign you or fire you in a heartbeat if it will help the bottom line. The idea of working for one company your entire life is gone; the idea of earning a pension with one company is gone. In 2005, Houston Chronicle business columnist Loren Steffy wrote, “We may not want to admit it, but there’s a little Curt Flood in all of us. If baseball is an analogy of life, then we have become a society of free agents.”

In spite of losing at the Supreme Court, the publicity had caused public opinion to change. More than anything, it was likely the shift in opinion that forced the owners to make concessions. Neither the Congress nor the courts forced the changes. Long after the players had achieved free agency, Congress finally did act.  The new law became known as the Curt Flood Act of 1998, which provided that antitrust laws apply to MLB. However, by then the law was essentially pointless, because players had already won the right to free agency, the only restriction being that a player must first play for five years. 

A Well-Paid Slave

After Lou Brock died, I wanted to learn more about Flood. So I began to read A Well- Paid Slave: Curt Flood’s Fight For Free Agency in Professional Sports” (2007), written by Brad Snyder. This book is not a traditional biography. It only briefly touches on Flood’s baseball career. There are several chapters in which Flood isn’t even present. When Flood’s trial began in 1970, Flood stopped attending the courtroom midway through the trial. Flood v. Kuhn was no more about Curt Flood than Roe v. Wade was about Roe and Wade. By the time the case reached the circuit court and then the Supreme Court, Flood wasn’t even living in the United States. Snyder wrote extensively about the trials and about everyone involved in the trials, including the lawyers, judges, justices, and witnesses. He wrote about what the sportswriters said, both for and against Flood. 

Many people scoffed at the notion that a player earning $100,000 could liken himself to a slave. But others who knew what it is like to feel like a slave to their employer could sympathize, especially when a company’s assets (including the employees) are sold to a different company or when the employees are told that they must move to a different city if they want to keep their job. 

Snyder’s story does begin and end with Curt Flood. Flood grew up in a ghetto of Oakland, California.  In high school he shared the same outfield with MLB Hall of Famer Frank Robinson and Vida Pinson, who is in the Cincinnati Reds Hall of Fame. He began his MLB career in 1956 in Cincinnati, also with Robinson and Pinson. After spending two years in the minor leagues in the Jim Crow south, Cincinnati traded him to the St. Louis Cardinals—a trade that left a mark on his psyche, because he was never consulted. 

Playing under Jim Crow was brutal for Flood. For all the suffering that Jackie Robinson had to endure because of racism, he never had to play baseball south of Washington, DC. Years later, after he was a famous baseball player, Flood wanted to purchase a home in the suburbs east of Oakland and the owner refused to sell to him because he was Black. (Willie Mays experienced the same thing in San Francisco.) The owner threatened to shoot Flood. But Flood stood his ground, and with the support of the city, he succeeded in buying the house. 

Racism had nothing to do with Flood’s decision to sue MLB, but it did have a lot to do with building Flood’s character and determination to fight against oppression. In 1969, the Cardinals paid Flood $95,000, which was a handsome salary for the time. That season his batting average tailed off to .285 (from earlier highs of .301 to .335), an average that was still quite respectable. But once the season was over, the Cardinals traded him to the Philadelphia Phillies. Flood first learned of the trade in the press. He was deeply hurt and offended.

When the trade to Philadelphia was announced, the Phillies owner tried to convince Flood to sign. The Phillies offered him a generous $100,000 salary. Flood refused, even though he was giving up the money and was 32 years old; if he sat out the 1970 season, he could lose more of his athleticism, which is exactly what happened. (Flood’s co-captain Tim McCarver was also traded to Philadelphia. McCarver did go on to play for the Phillies, and after he retired became a national TV sportscaster.) Furthermore, Flood was already in a financially precarious situation. He hadn’t managed his money well. His soon-to-be ex-wife was demanding alimony and he owed the IRS a lot of money. Many of his financial problems were of his own making, but those problems would pale in comparison to the alcoholism that would nearly destroy him. Curt Flood was a deeply flawed individual. Alcoholism became his biggest nemesis. 

That fall the MLBPA association was trying to negotiate many issues with the owners. The owners made some concessions, but they were refusing to negotiate the reserve clause. In December, Flood called Marvin Miller and told him that he wanted to sue MLB. Soon after meeting with Miller, Flood was invited to speak to the MLBPA at their meeting in Puerto Rico—a site chosen to be away from journalists. Flood’s close friend and actress (and future wife and civil rights activist) Judy Pace accompanied him.

Flood’s timing was perfect, because the owners had recently rejected all of the players’ attempts to negotiate the reserve clause. The 25 player reps included some of its greatest stars, including future Hall of Famers Jim Bunning (a future Congressman and Senator), Roberto Clemente, Reggie Jackson, and Brooks Robinson. Also present were two future MLB managers (Phil Regan and Joe Torre), and three future general managers (Tom Haller, Dal Maxvill, and Woody Woodward). However, since player representatives tend to be labor activists, they don’t necessarily represent the feelings of all or even the majority of the MLB players.

Miller explained that Flood planned to challenge the legality of the reserve clause in court. Flood said he was determined to sue with or without the support of the MLBPA. Miller and the players wanted to know if Flood understood what he would lose if the lawsuit went forward, and they wanted to know if Flood would stay with it to the bitter end. Other traded players had also threatened to sue, but the owners had always managed to buy them off. Flood said he was not one of them. Miller explained the importance of the MLBPA being involved in providing the best legal counsel, because whatever happened, it would affect all of the players.

The player reps asked lots of intelligent questions. Haller wanted to make sure that the lawsuit was about baseball, not about Black militancy. Flood acknowledged that racism made him more sensitive to injustice than White players, but that he was not suing baseball because he was Black. He may have been technically right, but his true feelings were something else. The MLBPA unanimously agreed to pay for Flood’s legal fees and travel expenses. Flood was ecstatic about their support. However, when the MLB players as a whole were informed of what was happening, there were many dissenters. Flood began to understand who were supportive and who were not. The same thing was true with the sports writers. 

The person named in Flood’s lawsuit was baseball commissioner Bowie Kuhn, who represented the owners. After Flood’s meeting with the MLBPA, he wrote to Kuhn saying that he was not a piece of property to be bought and sold. Kuhn responded that he agreed, but noted that Flood had signed the contract willingly. That said, at least one baseball owner was ambivalent about the reserve clause. Los Angeles Dodgers owner Walter O’Malley had the sense that he could outspend his opponents and make more money that way. 

Among Flood’s biggest supporters was “celebrity” sports commentator Howard Cosell. In an interview with Flood for ABC’s Wide World of Sports, Cosell asked: “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?” Flood responded, “A well-paid slave is nonetheless a slave.” When Cosell later asked Miller if it was possible to generate public support for such a player, Miller said, “If people think slavery is all right as long as the money’s OK, then maybe we won’t.” 

Cosell had supported Mohammed Ali and other Black athletes who were protesting against racism and other social injustices. (In 1970, Ali was still barred from boxing and his case to avoid going to prison for draft evasion was still pending in the Supreme Court. He won his case in 1971.) Cosell gave those athletes a voice and his friendship. In Flood’s case, Cosell helped resurrect Flood’s life after Flood had reached the depths of despair.  

The truth is that Flood and Miller were not the first to compare the reserve clause and the plight of Black people or baseball players to slavery. The only thing new was that they were doing it in the context of suing America’s national pastime. The public reaction reflected a backlash against the idealism of the 1960s. Most people in the media vilified Flood. But not everyone did. Sportswriters Red Smith, Jim Murray, and many others were among his supporters. The Black press supported him. Sociologist Dr. Harry Edwards wrote, “Flood is fighting this master-slave relationship that exists between baseball owners and baseball players.” Flood’s lawyers even went so far as to invoke the 13th Amendment to the Constitution that had abolished slavery. However, they later dropped that tactic in favor of focusing on antitrust law, allowing the rhetoric of slavery to recede.

At the initial lower-court trial in 1970, no active players testified in support of Flood, much to his bitter disappointment. However, three former players did. The first ex-player was Flood’s hero, Jackie Robinson. Robinson had refused to play for the New York Giants when the Dodgers traded him after the 1957 season. The next was Hank Greenburg. Greenburg was an interesting witness for several reasons. First, he was the greatest Jewish baseball player prior to Sandy Koufax. As a Jewish player he knew what it was like to be a victim of racism. Second, after having sacrificed his baseball career to serve three years in the military during World War 2, and after leading the Detroit Tigers to a World Series championship in 1945, the Tigers traded him to the Pittsburgh Pirates. Greenburg felt insulted and betrayed. The third reason is that following his playing career he became a baseball owner and understood the reserve clause from both sides of the fence. Greenburg’s co-owner, Bill Veeck, also testified at the trial in support of Flood. The third player to testify was an obscure former pitcher Jim Brosnan, who had become a muckraking journalist during the course of his nine-year career and was blacklisted for exposing baseball’s dirty laundry.

One of the key public figures who testified in support of the reserve clause was ex-player and current sportscaster Joe Garagiola. Garagiola thought that baseball couldn’t survive without the reserve system. Flood became bitter towards Garagiola. Another critic, who wasn’t at the trial, was former Cardinal Hall of Famer Stan Musial. Musial thought that Flood was ungrateful to the team owners.

The lawyer whom the MLBPA selected to lead the suit was Arthur Goldberg. Goldberg had been appointed as a US Supreme Court Justice by President John Kennedy. Three years later, President Lyndon Johnson convinced him to resign to become his Ambassador to the United Nations, dangling the false hope that Goldberg could help him achieve peace in Vietnam. At first it seemed like Goldberg was a good choice to represent the MLBPA. However, during the second trial at the Circuit Court, Goldberg allowed himself to be distracted by running for Governor of New York. He lost to Nelson Rockefeller, and after losing, he returned to present Flood’s case to the Supreme Court. He had only 30 minutes to speak, and he botched it, acting as though he was struck by senility. Everyone in the courtroom was embarrassed for him. There is nothing in Woodward and Armstrong’s book that would lead one to believe that the justices gave any thought to Goldberg during their deliberations. Things could have turned out very different if Flood had had a competent lawyer arguing his case. 

In any case, as noted earlier, the Supreme Court decision became irrelevant. During the two years that the trials occurred, from 1970 to 1972, public opinion shifted in favor of Flood. The trial publicity itself forced the owners to negotiate with the players. The reserve system continued to exist, but the owners agreed to send contract disputes to an independent arbitrator. As the arbitrators always sided with the players, salaries began to soar. Today, player salaries are in the stratosphere and baseball owners are making more money than ever. 

Now comes the sad part. Prior to the 1971 season, Flood agreed to play for the Washington Senators. He could have made $100,000 or more if he had played the whole season. But he couldn’t hit the ball out of the infield because he was so out-of-shape and addicted to alcohol. During his 18 months away from the game, he did a lot of drinking and womanizing and never exercised. Flood was so ashamed of his play that before the end of April he disappeared without telling anybody. He hated being exposed as a failure and hid himself away on the island of Majorca, midway between Barcelona and Algiers. He ran a bar and as time went by, he became destitute. By 1975 he was no longer welcome in Majorca. He moved to Andorra, a tiny country in the Pyrenees, where he was arrested for theft while drunk and had his arm broken by the police. He was practically a vagrant. In Barcelona he spent some time in a psychiatric hospital where he couldn’t pay his bills. Left broke and homesick, he wanted to return to the United States but he couldn’t afford the cost of the flight. His father paid for the flight and Flood returned to his mother’s house in Oakland, back in the ghetto.   

Redemption

Back in the states, Flood continued to drink. In 1976, he nearly cracked his skull in an accident caused by his drinking. He missed baseball and expressed the desire to get back into the game. His defeat at the Supreme Court gnawed at him. He could not bear to watch Garagiola on television. But he was happy for all of the baseball players who were making lots of money.

Flood feared that people hated him, but that wasn’t true. It was never true. Reporters were interested in him. Flood raised his public profile and began to earn some money with several media opportunities starting with a first-person article that he wrote about his life and lawsuit in 1977. One reporter said that Flood was the saddest man he had ever met. Cosell conducted another television interview with him for ABC in 1979. Cosell flew Flood and his girlfriend to New York City. Nobody treated Flood more like a celebrity than Cosell. 

During the 1960s, Flood had started an art portrait business, which had been a scam. Flood worked with artist Lawrence Williams and signed the artwork under his own name. Both men benefited from using Flood’s stature to raise the value of Williams’s work. In 1978, Flood resurrected this business, but he didn’t sign his name as he had done before. 

Also in 1978, Flood began doing radio broadcasts for the Oakland A’s as a color commentator, and he traveled with the team that season. A’s owner Charlie Finley was happy about it because he thought it would irk Bowie Kuhn. Finley did not like Kuhn, because he would not let Finley sell Joe Rudi and Rollie Fingers before they left the A’s for free agency. Flood never criticized Finley; an enemy of Kuhn was a friend of Flood’s. Flood was a good color commentator, but alcohol continued to be a problem and Finley did not renew his contract. 

Also in 1978, Flood received a warm reception from his old team, the St. Louis Cardinals. The Cardinals general manager Bing Devine—the same man who had traded Flood—invited Flood to be one of 10 guests of honor at a celebratory event. Flood accepted. That day he wore a Cardinal uniform and received a standing ovation from the fans. Flood was reunited with his old teammates as well as Stan Musial, one of Flood’s previous critics. Cardinal owner Gussie Busch greeted Flood warmly and said that Flood had always been his favorite center fielder. (He later blamed Flood for “turning baseball into a business for him.”) Flood had dinner with his old friend Bob Gibson. Flood was drunk but happy. 

That year Flood encountered Kuhn at a party at New York Yankees owner George Steinbrenner’s office. Flood approached him and shook his hand. Neither expressed any hard feelings, but Snyder writes that Kuhn was condescending. In 1982, Kuhn was voted out of office by the owners. Like Flood, Kuhn found life difficult outside of baseball. He seemed to be very unpopular and ran into his own financial difficulties. He became reclusive, devoutly religious, and an advocate for the teaching of “intelligent design” in schools.

In 1979, Flood stopped smoking and in 1980 he spent 30 days in alcohol rehabilitation. Perhaps the ultimate irony is that Flood landed a new job as the commissioner for youth baseball in the city of Oakland. Flood called himself the “Bowie Flood,” and he used his connections with MLB players to teach the youth about baseball. Children looked up to him. He became a local hero. The NAACP honored him. 

When the MLB players went on strike in 1981, Flood supported them. He also supported Frank Robinson, who had become the first Black manager in 1974 but was fired in 1977. In 1981, Robinson became the first Black manager to be rehired, this time by the San Francisco Giants. In 1982, Flood attended the Hall of Fame ceremony for Robinson. Flood was standing in the back of the room incognito, but Robinson asked him to stand up to applause. 

In 1983 Flood left his girlfriend, and in 1985 he reconnected with Judy Pace, whom he married the next year. He stopped drinking and moved to Los Angeles, helped raise Pace’s two children, and repaired his relationship with his own five children. He was finally at peace, but he told Ken Burns in an interview conducted for Burns’s Emmy Award-winning Baseball documentary that he still held some bitterness towards his fellow players who didn’t speak up for him.

Flood still wanted a job working in Major League Baseball, but when his old teammate Dal Maxvill offered him a job in St. Louis, it would have required to move there and travel. So Flood declined. However, he did start the Curt Flood Youth Foundation to help underprivileged kids, and in 1989 he was named commissioner of the Senior Professional Baseball Leagues. Cosell came to the opening press conference. Ironically, the person who recommended him for the job was Joe Garagiola, who had confessed his sins to Marvin Miller and said it took a lot of guts for Flood to do what he did. In 1991, Miller published his own book, A Whole Different Ball Game, offering his version of history and expressing his deep admiration for Flood.

In 1994, the ball players again went out on strike and the baseball’s antitrust exemption again came under attack. The MLB owners’ worst nightmare almost came true. A group of investors wanted to create a rival league called the United Baseball League. They named Flood a stockholder and vice president. In December Flood met with 80 striking players. They gave him a standing ovation. 

This was also the year when Burns’s documentary was released. When it premiered in Washington, DC, Flood and Pace toured the White House and met Bill and Hilary Clinton. Tim McCarver was present as well. It was a fairy tale finish to Flood’s life. But in the summer of 1995 Flood learned that he had throat cancer, and he died in January 1997. During his illness, Flood did not have health insurance to pay for his cancer treatment, but an organization spearheaded by Garagiola to help ex-ballplayers chipped in. 

To this day, there are many players and fans who do not know who Curt Flood was or the contributions he made to the game, both on and off the field. Nonetheless, before he died, many thanked him personally, among them Hall of Famer Rod Carew, and  Flood’s fellow Oakland native Joe Morgan, another Hall of Famer, who said that Marvin Miller took every opportunity to educate the players about Flood’s sacrifices, and that those sacrifices were made for them. 

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Jeff Berger (Author) – Tech writer, public speaker, and engineer. He earned Masters degrees in statistics and operations research from the University of California, Berkeley, and was employed by IBM for more than 30 years. He developed an interest in history and economics during the 1990’s and now wonders if he might have chosen the wrong career.