Flood v. Kuhn
Encyclopedia
Flood v. Kuhn was a 1972 United States Supreme Court decision upholding, by a 5–3 margin, the antitrust
exemption first granted to Major League Baseball
(MLB) in Federal Baseball Club v. National League
. It arose from a challenge by St. Louis Cardinals
' outfield
er Curt Flood
when he refused to be trade
d to the Philadelphia Phillies
after the 1969 season
. He sought injunctive relief from the reserve clause
, which prevented him from negotiating with another team for a year after his contract expired. Named as initial respondents were baseball commissioner
Bowie Kuhn
, MLB and all of its then-24 member clubs.
Although the Court ruled in baseball's favor 5-3, it admitted the original grounds for the antitrust exemption were tenuous at best, that baseball was indeed interstate commerce for purposes of the act and the exemption was an "anomaly" it had explicitly refused to extend to other professional sports or entertainment. That admission set in motion events which ultimately led to an arbitrator's ruling
nullifying the reserve clause and opening the door for free agency
in baseball and other sports.
The opinion has been criticized in several ways. It is seen by some as an overly strict and reflexive reliance on the legal doctrine
of stare decisis
that made an earlier mistake "uncorrectable". Even the text of the decision itself, mainly a seven-page introductory encomium to the game and its history by Justice Harry Blackmun
that included a lengthy listing of baseball greats, came in for criticism. Some of the other justices, and Court observers, felt it was inappropriate for a judicial opinion. At the time of his later retirement and death, Blackmun would be remembered for it as much as Roe v. Wade
.
had begun using it in the late 19th century; the American League
began using it in 1903 as part of the truce between the two that created MLB. Team owners realized that if players could go from team to team seeking higher pay, salaries of all players, not just stars, would go up. They feared some teams might have to fold under such competitive pressure, and included the reserve clause, so called since a team reserved rights to a player for a year after the contract expired, to limit free agency.
Such collusion
in other industries had been ruled to be restraint of trade
in violation of the Sherman Antitrust Act
. Players had two options to resist it and become free agents. They could ask to be released from their contracts (which they rarely were), or hold out and refuse to report until the year was up, forfeiting their pay in the process. While star players were able to exercise some leverage this way, most who held out were often traded to other teams and wound up making less money.
A suit was brought in the 1920s, Federal Baseball Club v. National League
, by the owner of the defunct Baltimore Terrapins
Federal League
team who accused the major leagues of conspiring to crush MLB's one remaining competitor. Instead, Justice Oliver Wendell Holmes
ruled that baseball, the only professional team sport in the country at the time enjoying wide interest, was exempt since it was not interstate commerce and teams' travel to games in other states was merely "incidental" to MLB's main business, the staging of baseball games. Although the reserve clause was not part of the case, the exemption meant that the Supreme Court or Congress would have had to say otherwise before it could be legally voided.
Two possible challenges in the early 1950s failed. Former New York Giants
outfielder Danny Gardella
sued after baseball teams blacklisted him following his brief stint in the Mexican League. An appeals court
overturned an initial verdict for baseball, and commissioner Happy Chandler
decided to settle rather than risk the overturning of Federal Baseball Club. Shortly afterwards, George Earl Toolson, a pitcher in the New York Yankees
' farm system
, refused to report to a new minor league team when sent down. The ensuing decision, Toolson v. New York Yankees
, let the exemption stand citing lack of congressional interest in repealing it. Justices Harold Hitz Burton
and Stanley Forman Reed
dissented, saying baseball as it was then played met the definition of interstate commerce.
A few years later, when the Court declined to extend the antitrust exemption to professional football in Radovich v. National Football League
, it raised some hopes that another challenge to might succeed when it admitted "were we considering the question of baseball for the first time upon a clean slate we would have no doubts" that it was interstate commerce. 1971's Haywood v. National Basketball Association
, an emergency appeal issued by Justice William O. Douglas
, similarly denied that exemption to professional basketball and noted "the decision in this suit would be similar to the one on baseball's reserve clause which our decisions exempting baseball from the antitrust laws have foreclosed".
, at the age of 18, Flood had, without an agent
or attorney to represent or advise him, signed his first professional baseball contract with the Cincinnati Reds
. Two years later he was traded to the St. Louis Cardinals
and became one of the team's stars. He batted .300
in six of the next 12 seasons, earned seven Gold Glove awards
(including one for an error
-free 1966 season
), and played in three World Series
, two of which the Cardinals won.
In October 1969, after the season had ended, Flood, then one of the Cardinals' captains, learned from a reporter that he had been traded to the Philadelphia Phillies
along with, and for, several other players. He had not been consulted about this beforehand, and did not want to play for the poorly performing Phillies in Philadelphia before fans the African-American Flood believed were racist
.
Like many players, he had long chafed at the reserve clause, and wrote to Kuhn shortly before Christmas asking to be declared a free agent: "I do not feel I am a piece of property to be bought and sold irrespective of my wishes," he said. "I believe I have the right to consider offers from other clubs before making any decision." Kuhn denied the request, reminding Flood he was contractually obligated to play for the Phillies.
In January 1970, Flood brought suit in New York, where MLB was headquartered, seeking $1 million in damages and injunctive relief from the reserve clause, which his legal arguments controversially compared to slavery. He sat out that year's baseball season
, foregoing $100,000 in salary, and signed with the Washington Senators for more money in 1971, only to leave the team early in the season when he was not playing well. He never played again.
's team representatives voted unanimously to support Flood. His motion for a preliminary injunction was denied, with Judge Irving Ben Cooper
of the Southern District of New York
citing the sport's cultural importance in American life: "The game is on higher ground; it behooves every one to keep it there." He allowed Flood an early trial, which took place in May and June of that year.
No active-duty players testified on his behalf, but his witnesses included Jackie Robinson
, Hank Greenberg
and maverick owner Bill Veeck
. Baseball's lawyers argued the clause was essential to maintain the sport.
Cooper ultimately ruled for Major League Baseball, stating that "the preponderance of credible proof does not favor elimination of the reserve clause." Even Flood's witnesses, he noted, had been ambivalent, regarding some version of it as beneficial to the sport.
Flood appealed the case to the Second Circuit
, which affirmed Cooper's decision on the basis of Federal Baseball. Judge Leonard P. Moore
added that he thought it unlikely the Supreme Court would overturn that decision.
later that year. Former justice Arthur Goldberg
returned to argue Flood's case before some of his former colleagues. Kuhn, a onetime star litigator, considered arguing the case himself, but uiltimately deferred to Paul Porter and Louis Hoynes. At oral argument
s on March 20, 1972, Goldberg reiterated Flood's arguments about the harm done to players by the reserve system. Baseball's lawyers responded to them, but primarily invoked the game's place in American culture and the greater good done it by the reserve system.
Justice Lewis Powell recused himself from the case because he owned stock
in Anheuser-Busch
, which owned the Cardinals.
, who had been part of the majority in the latter case, dissented this time and expressed his regret. Even Harry Blackmun
's majority opinion conceded that baseball was as much interstate commerce as the other professional sports to which the Court had refused to extend the antitrust exemption.
recounting the history of baseball
, concluding with a detailed litany
of events and finally the names of 83 legendary players from the late 19th to mid-20th centuries, beginning with Ty Cobb
and Babe Ruth
and ending with Jimmie Foxx
and Lefty Grove
. "The list seems endless", Blackmun wrote. In its entirety Section I takes up seven pages of the United States Reports
. In the footnotes, he quoted poetry by Grantland Rice
on "Casey at the Bat
" and allowed of his list: "These are names only from earlier years. By mentioning some, one risks unintended omission of others equally celebrated."
After two further sections recounting the facts of the case, the lower courts' decisions and the Court's previous jurisprudence, Blackmun considered the legal issues at hand. He noted that the Federal Baseball court had not been persuaded by other case law at the time ruling that traveling vaudeville
companies were engaged in interstate commerce and that other companies use of the mail and rail shipments had so qualified. Federal Baseball had also been cited as precedent
in later cases without complaint.
In later cases, brought in the 1950s involving other organized sports and similar activities, the Court had refused to exempt them and noted, as it did when asked to end baseball's exemption outright in Toolson, Congress's relative inactivity on the issue. Since then, Blackmun said, there had been some bills, but all intended to extend the exemption to other sports and none to repeal it entirely.
"In view of all this," he began section V, "it seems appropriate now to say that: Professional baseball is a business and engaged in interstate commerce". Invoking Radovich, he admitted that "the slate is not clean. Indeed it has not been clean for half a century." The antitrust exemption created in Federal Baseball and upheld in Toolson was "an aberration confined to baseball". Nevertheless there seemed to be little desire to end or weaken it, and given the problems he thought a judicial turnabout would cause for baseball, he cited the legal doctrine of stare decisis
in upholding the previous rulings, saying "Under these circumstances, there is merit in consistency even though some might claim that beneath that consistency is a layer of inconsistency." Justice Byron White
signed the opinion, but noted he did not concur in Part I.
"I concur in all but Part I", noted Chief Justice
Warren Burger, as well. He did, however, say in his short concurring opinion that he felt Toolson had been wrongly decided and agreed with some other points William O. Douglas
made in his dissent.
If a case challenging the antitrust exemption were coming before the Court for the first time, he said, he had no doubt he and his brother justices would have ruled differently. "The unbroken silence of Congress should not prevent us from correcting our own mistakes," he concluded. William Brennan
joined his opinion.
's dissent, a longer review of the case in which he came to the same conclusions as Douglas, expressed in more measured language:
, criticized it. In legal circles, Blackmun's homage to baseball was criticized and ridiculed.
in baseball. However, it did so, according to Bill James
, only by showing them they could not rely on the Courts to strike down the antitrust exemption and the reserve clause along with it. But the effort by a player of Flood's stature did galvanize the players, and according to Marvin Miller
it made the general public aware of the reserve clause. Labor law proved a more fruitful opportunity for the invalidating of the reserve clause. The next year the National Labor Relations Board
voted that baseball came under its jurisdiction, and that led to the Seitz decision
three years later that Andy Messersmith
and Dave McNally
were free agents after they had played out a year without signing new contracts. That event is considered the true beginning of baseball free agency.
Neither Congress nor any court has completely overturned baseball's antitrust exemption. Some bill
s that would do so were named the Curt Flood Act in his honor and later, memory. In 1998, President Bill Clinton
signed one into law making baseball's employment practices subject to antitrust law, a largely moot point since by then free agency was well established (minor league players, however, remain bound to their parent clubs). Flood himself was remembered as much for this case as for his playing career when he died in 1997. He has not been inducted into the Hall of Fame despite his accomplished career and effect on the game.
, Flood v. Kuhn is a "principle of antitrust law that is (1) indefensible as a matter of fact or policy, and (2) an embarrassment to the Court." Holmes' original decision has been misread by both later cases to imply a divination of congressional intent to exclude baseball and a prescription for congressional action to remedy that, he argues: "Just as Toolson blamed Holmes for a problem (an express statutory exemption) that he did not create, Flood blamed him for insisting on a solution (Congressional action) that he did not mention."
Yale law professor
William Eskridge, a harsh critic of the decision, has called it "the most frequently criticized example of excessively strict stare decisis." It is often counterpointed to the Court's decision in the 1940 trust case Helvering v. Hallock, where Justice Felix Frankfurter
explicitly rejected the idea, embraced by Blackmun in Flood, that the Court should consider congressional inaction as a tacit statement of acquiescence with one of its existing holdings, however questionable they may have seemed. Eskridge notes that there are many reasons besides express lack of intent that would forestall Congressional action to remedy a flawed Court decision.
, who found that Blackmun had likely used Lawrence Ritter's 1966 book The Glory of Their Times as his primary source, showed how the careers of many of the players he listed had been impacted, often adversely, by the reserve system.
Blackmun himself acknowledged in 1987, that his colleagues on the Court had, as Burger and Douglas's opinions suggest, seen it as "beneath the dignity of the Court". But he expressed no regrets, save the discovery by his clerks
that, after the decision had issued, he had forgotten Mel Ott
. In his personal copy of the decision he penciled Ott's name in.
Condemnation has not been universal. One commentator has defended it as a "trace of resistance to the hyperrationality of contemporary legal discourse". "If Flood is seen, however, as a decision grounded in a desire to adopt sound legal rules for sports leagues, Part I makes eminent sense," says Illinois law professor Stephen F. Ross. He goes on to read the decision as doing exactly that, countering critics who charge it with being an overly strict application of stare decisis by showing how Blackmun and the other majority justices could reasonably, at that time, have been convinced that "contemporary antitrust doctrines would condemn many arrangements among owners that are arguably essential to baseball".
Antitrust
The United States antitrust law is a body of laws that prohibits anti-competitive behavior and unfair business practices. Antitrust laws are intended to encourage competition in the marketplace. These competition laws make illegal certain practices deemed to hurt businesses or consumers or both,...
exemption first granted to Major League Baseball
Major League Baseball
Major League Baseball is the highest level of professional baseball in the United States and Canada, consisting of teams that play in the National League and the American League...
(MLB) in Federal Baseball Club v. National League
Federal Baseball Club v. National League
Federal Baseball Club v. National League, , is a case in which the U.S. Supreme Court ruled that the Sherman Antitrust Act did not apply to Major League Baseball.-Background:...
. It arose from a challenge by St. Louis Cardinals
St. Louis Cardinals
The St. Louis Cardinals are a professional baseball team based in St. Louis, Missouri. They are members of the Central Division in the National League of Major League Baseball. The Cardinals have won eleven World Series championships, the most of any National League team, and second overall only to...
' outfield
Outfield
The outfield is a sporting term used in cricket and baseball to refer to the area of the field of play further from the batsman or batter than the infield...
er Curt Flood
Curt Flood
Curtis Charles Flood was a Major League Baseball player who spent most of his career as a center fielder for the St. Louis Cardinals. A defensive standout, he led the National League in putouts four times and in fielding percentage twice, winning Gold Glove Awards in his last seven full seasons...
when he refused to be trade
Trade
Trade is the transfer of ownership of goods and services from one person or entity to another. Trade is sometimes loosely called commerce or financial transaction or barter. A network that allows trade is called a market. The original form of trade was barter, the direct exchange of goods and...
d to the Philadelphia Phillies
Philadelphia Phillies
The Philadelphia Phillies are a Major League Baseball team. They are the oldest continuous, one-name, one-city franchise in all of professional American sports, dating to 1883. The Phillies are a member of the Eastern Division of Major League Baseball's National League...
after the 1969 season
1969 Major League Baseball season
The 1969 Major League Baseball season was celebrated as the 100th anniversary of professional baseball, honoring the first professional touring baseball team, the Cincinnati Red Stockings. A special silhouetted batter logo was created by Jerry Dior to commemorate the anniversary, and is still used...
. He sought injunctive relief from the reserve clause
Reserve clause
The reserve clause is a term formerly employed in North American professional sports contracts. The reserve clause, contained in all standard player contracts, stated that, upon the contract's expiration the rights to the player were to be retained by the team to which he had been signed...
, which prevented him from negotiating with another team for a year after his contract expired. Named as initial respondents were baseball commissioner
Commissioner of Baseball
The Commissioner of Baseball is the chief executive of Major League Baseball and its associated minor leagues. Under the direction of the Commissioner, the Office of the Commissioner of Baseball hires and maintains the sport's umpiring crews, and negotiates marketing, labor, and television contracts...
Bowie Kuhn
Bowie Kuhn
Bowie Kent Kuhn was an American lawyer and sports administrator who served as the fifth Commissioner of Major League Baseball from February 4, , to September 30,...
, MLB and all of its then-24 member clubs.
Although the Court ruled in baseball's favor 5-3, it admitted the original grounds for the antitrust exemption were tenuous at best, that baseball was indeed interstate commerce for purposes of the act and the exemption was an "anomaly" it had explicitly refused to extend to other professional sports or entertainment. That admission set in motion events which ultimately led to an arbitrator's ruling
Seitz decision
The Seitz decision was a ruling by arbitrator Peter Seitz on December 23, 1975 which declared that Major League Baseball players became free agents upon playing one year for their team without a contract, effectively nullifying baseball's reserve clause...
nullifying the reserve clause and opening the door for free agency
Free agent
In professional sports, a free agent is a player whose contract with a team has expired and who is thus eligible to sign with another club or franchise....
in baseball and other sports.
The opinion has been criticized in several ways. It is seen by some as an overly strict and reflexive reliance on the legal doctrine
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
that made an earlier mistake "uncorrectable". Even the text of the decision itself, mainly a seven-page introductory encomium to the game and its history by Justice Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
that included a lengthy listing of baseball greats, came in for criticism. Some of the other justices, and Court observers, felt it was inappropriate for a judicial opinion. At the time of his later retirement and death, Blackmun would be remembered for it as much as Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
.
Reserve clause
The reserve clause had been part of baseball contracts since the game's early days. The National LeagueNational League
The National League of Professional Baseball Clubs, known simply as the National League , is the older of two leagues constituting Major League Baseball, and the world's oldest extant professional team sports league. Founded on February 2, 1876, to replace the National Association of Professional...
had begun using it in the late 19th century; the American League
American League
The American League of Professional Baseball Clubs, or simply the American League , is one of two leagues that make up Major League Baseball in the United States and Canada. It developed from the Western League, a minor league based in the Great Lakes states, which eventually aspired to major...
began using it in 1903 as part of the truce between the two that created MLB. Team owners realized that if players could go from team to team seeking higher pay, salaries of all players, not just stars, would go up. They feared some teams might have to fold under such competitive pressure, and included the reserve clause, so called since a team reserved rights to a player for a year after the contract expired, to limit free agency.
Such collusion
Collusion
Collusion is an agreement between two or more persons, sometimes illegal and therefore secretive, to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage...
in other industries had been ruled to be restraint of trade
Restraint of trade
Restraint of trade is a common law doctrine relating to the enforceability of contractual restrictions on freedom to conduct business. In an old leading case of Mitchell v Reynolds Lord Smith LC said,...
in violation of the Sherman Antitrust Act
Sherman Antitrust Act
The Sherman Antitrust Act requires the United States federal government to investigate and pursue trusts, companies, and organizations suspected of violating the Act. It was the first Federal statute to limit cartels and monopolies, and today still forms the basis for most antitrust litigation by...
. Players had two options to resist it and become free agents. They could ask to be released from their contracts (which they rarely were), or hold out and refuse to report until the year was up, forfeiting their pay in the process. While star players were able to exercise some leverage this way, most who held out were often traded to other teams and wound up making less money.
A suit was brought in the 1920s, Federal Baseball Club v. National League
Federal Baseball Club v. National League
Federal Baseball Club v. National League, , is a case in which the U.S. Supreme Court ruled that the Sherman Antitrust Act did not apply to Major League Baseball.-Background:...
, by the owner of the defunct Baltimore Terrapins
Baltimore Terrapins
The Baltimore Terrapins were one of the most successful teams in the short-lived Federal League of professional baseball from to , but their brief existence led to litigation that led to an important legal precedent in baseball...
Federal League
Federal League
The Federal League of Base Ball Clubs, known simply as the Federal League, was an American professional baseball league that operated as a "third major league", in competition with the established National and American Leagues, from to...
team who accused the major leagues of conspiring to crush MLB's one remaining competitor. Instead, Justice Oliver Wendell Holmes
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
ruled that baseball, the only professional team sport in the country at the time enjoying wide interest, was exempt since it was not interstate commerce and teams' travel to games in other states was merely "incidental" to MLB's main business, the staging of baseball games. Although the reserve clause was not part of the case, the exemption meant that the Supreme Court or Congress would have had to say otherwise before it could be legally voided.
Two possible challenges in the early 1950s failed. Former New York Giants
San Francisco Giants
The San Francisco Giants are a Major League Baseball team based in San Francisco, California, playing in the National League West Division....
outfielder Danny Gardella
Danny Gardella
Daniel Lewis Gardella was an American left fielder in Major League Baseball who played with the New York Giants and St. Louis Cardinals...
sued after baseball teams blacklisted him following his brief stint in the Mexican League. An appeals court
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
overturned an initial verdict for baseball, and commissioner Happy Chandler
Happy Chandler
Albert Benjamin "Happy" Chandler, Sr. was a politician from the US state of Kentucky. He represented the state in the U.S. Senate and served as its 44th and 49th governor. Aside from his political positions, he also served as the second Commissioner of Major League Baseball from 1945 to 1951 and...
decided to settle rather than risk the overturning of Federal Baseball Club. Shortly afterwards, George Earl Toolson, a pitcher in the New York Yankees
New York Yankees
The New York Yankees are a professional baseball team based in the The Bronx, New York. They compete in Major League Baseball in the American League's East Division...
' farm system
Farm team
In sports, a farm team, farm system, feeder team or nursery club, is generally a team or club whose role is to provide experience and training for young players, with an agreement that any successful players can move on to a higher level at a given point...
, refused to report to a new minor league team when sent down. The ensuing decision, Toolson v. New York Yankees
Toolson v. New York Yankees
Toolson v. New York Yankees is a 1953 U.S. Supreme Court decision that upheld, 7–2, the antitrust exemption first granted to Major League Baseball three decades earlier in Federal Baseball Club v. National League...
, let the exemption stand citing lack of congressional interest in repealing it. Justices Harold Hitz Burton
Harold Hitz Burton
Harold Hitz Burton was an American politician and lawyer.He served as the 45th mayor of Cleveland, Ohio, as a U.S. Senator from Ohio, and as an Associate Justice of the Supreme Court of the United States. He was known as a dispassionate jurist who prized equal justice under the law.-Biography:He...
and Stanley Forman Reed
Stanley Forman Reed
Stanley Forman Reed was a noted American attorney who served as United States Solicitor General from 1935 to 1938 and as an Associate Justice of the U.S. Supreme Court from 1938 to 1957. He was the last Supreme Court Justice who did not graduate from law school Stanley Forman Reed (December 31,...
dissented, saying baseball as it was then played met the definition of interstate commerce.
A few years later, when the Court declined to extend the antitrust exemption to professional football in Radovich v. National Football League
Radovich v. National Football League
Radovich v. National Football League , , is a 1957 U.S. Supreme Court decision ruling that professional football, unlike professional baseball, was subject to antitrust laws...
, it raised some hopes that another challenge to might succeed when it admitted "were we considering the question of baseball for the first time upon a clean slate we would have no doubts" that it was interstate commerce. 1971's Haywood v. National Basketball Association
Haywood v. National Basketball Association
Haywood v. National Basketball Association, 401 U.S. 1204 , was a U.S. Supreme Court decision that ruled, 7–2, against the National Basketball Association’s old requirement that a player may not be drafted by a NBA team unless he waited four years following his graduation from high...
, an emergency appeal issued by Justice William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
, similarly denied that exemption to professional basketball and noted "the decision in this suit would be similar to the one on baseball's reserve clause which our decisions exempting baseball from the antitrust laws have foreclosed".
Curt Flood
In 19561956 in baseball
-Major League Baseball:*World Series: New York Yankees over Brooklyn Dodgers ; Don Larsen, MVP*All-Star Game, July 10 at Griffith Stadium: National League, 7-3-Other champions:*Caribbean World Series: Cienfuegos *College World Series: Minnesota...
, at the age of 18, Flood had, without an agent
Sports agent
A sports agent procures and negotiates employment and endorsement contracts for an athlete.In return, the sports agent generally receives between 4 and 10% of the athlete's playing contract, and 10 to 20% of the athlete's endorsement contract, though these figures vary...
or attorney to represent or advise him, signed his first professional baseball contract with the Cincinnati Reds
Cincinnati Reds
The Cincinnati Reds are a Major League Baseball team based in Cincinnati, Ohio. They are members of the National League Central Division. The club was established in 1882 as a charter member of the American Association and joined the National League in 1890....
. Two years later he was traded to the St. Louis Cardinals
St. Louis Cardinals
The St. Louis Cardinals are a professional baseball team based in St. Louis, Missouri. They are members of the Central Division in the National League of Major League Baseball. The Cardinals have won eleven World Series championships, the most of any National League team, and second overall only to...
and became one of the team's stars. He batted .300
Batting average
Batting average is a statistic in both cricket and baseball that measures the performance of cricket batsmen and baseball hitters. The two statistics are related in that baseball averages are directly descended from the concept of cricket averages.- Cricket :...
in six of the next 12 seasons, earned seven Gold Glove awards
Rawlings Gold Glove Award
The Rawlings Gold Glove Award, usually referred to as the Gold Glove, is the award given annually to the Major League Baseball players judged to have exhibited superior individual fielding performances at each fielding position in both the National League and the American League , as voted by the...
(including one for an error
Error (baseball)
In baseball statistics, an error is the act, in the judgment of the official scorer, of a fielder misplaying a ball in a manner that allows a batter or baserunner to reach one or more additional bases, when such an advance would have been prevented given ordinary effort by the fielder.The term ...
-free 1966 season
1966 Major League Baseball season
The 1966 Major League Baseball season was held between the American and National Leagues. The Braves play their first season in Atlanta, following their relocation from Milwaukee. Three new stadiums opened that season. On April 12, the Braves ushered in Atlanta Stadium with the Pittsburgh...
), and played in three World Series
World Series
The World Series is the annual championship series of Major League Baseball, played between the American League and National League champions since 1903. The winner of the World Series championship is determined through a best-of-seven playoff and awarded the Commissioner's Trophy...
, two of which the Cardinals won.
In October 1969, after the season had ended, Flood, then one of the Cardinals' captains, learned from a reporter that he had been traded to the Philadelphia Phillies
Philadelphia Phillies
The Philadelphia Phillies are a Major League Baseball team. They are the oldest continuous, one-name, one-city franchise in all of professional American sports, dating to 1883. The Phillies are a member of the Eastern Division of Major League Baseball's National League...
along with, and for, several other players. He had not been consulted about this beforehand, and did not want to play for the poorly performing Phillies in Philadelphia before fans the African-American Flood believed were racist
Prejudice
Prejudice is making a judgment or assumption about someone or something before having enough knowledge to be able to do so with guaranteed accuracy, or "judging a book by its cover"...
.
Like many players, he had long chafed at the reserve clause, and wrote to Kuhn shortly before Christmas asking to be declared a free agent: "I do not feel I am a piece of property to be bought and sold irrespective of my wishes," he said. "I believe I have the right to consider offers from other clubs before making any decision." Kuhn denied the request, reminding Flood he was contractually obligated to play for the Phillies.
In January 1970, Flood brought suit in New York, where MLB was headquartered, seeking $1 million in damages and injunctive relief from the reserve clause, which his legal arguments controversially compared to slavery. He sat out that year's baseball season
1970 Major League Baseball season
The Seattle Pilots relocated to Milwaukee and became the Brewers, thus returning Major League Baseball to Wisconsin for the first time since the relocation of the Milwaukee Braves to Atlanta following the 1965 season.-Champions:...
, foregoing $100,000 in salary, and signed with the Washington Senators for more money in 1971, only to leave the team early in the season when he was not playing well. He never played again.
Trial and appeal
The Major League Baseball Players AssociationMajor League Baseball Players Association
The Major League Baseball Players Association is the union of professional major-league baseball players.-History of MLBPA:The MLBPA was not the first attempt to unionize baseball players...
's team representatives voted unanimously to support Flood. His motion for a preliminary injunction was denied, with Judge Irving Ben Cooper
Irving Ben Cooper
Irving Ben Cooper was a U. S. District Court Judge of the Federal District Court of the Southern District of New York from 1962 to 1996, having received a recess appointment from John F. Kennedy on October 5, 1961...
of the Southern District of New York
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
citing the sport's cultural importance in American life: "The game is on higher ground; it behooves every one to keep it there." He allowed Flood an early trial, which took place in May and June of that year.
No active-duty players testified on his behalf, but his witnesses included Jackie Robinson
Jackie Robinson
Jack Roosevelt "Jackie" Robinson was the first black Major League Baseball player of the modern era. Robinson broke the baseball color line when he debuted with the Brooklyn Dodgers in 1947...
, Hank Greenberg
Hank Greenberg
Henry Benjamin "Hank" Greenberg , nicknamed "Hammerin' Hank" or "The Hebrew Hammer," was an American professional baseball player in the 1930s and 1940s. A first baseman primarily for the Detroit Tigers, Greenberg was one of the premier power hitters of his generation...
and maverick owner Bill Veeck
Bill Veeck
William Louis Veeck, Jr. , also known as "Sport Shirt Bill", was a native of Chicago, Illinois, and a franchise owner and promoter in Major League Baseball. He was best known for his publicity stunts to raise attendance. Veeck was at various times the owner of the Cleveland Indians, St. Louis...
. Baseball's lawyers argued the clause was essential to maintain the sport.
Cooper ultimately ruled for Major League Baseball, stating that "the preponderance of credible proof does not favor elimination of the reserve clause." Even Flood's witnesses, he noted, had been ambivalent, regarding some version of it as beneficial to the sport.
Flood appealed the case to the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
, which affirmed Cooper's decision on the basis of Federal Baseball. Judge Leonard P. Moore
Leonard P. Moore
Leonard Page Moore was a federal appellate judge in the United States....
added that he thought it unlikely the Supreme Court would overturn that decision.
Before the Supreme Court
The court granted certiorariCertiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
later that year. Former justice Arthur Goldberg
Arthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...
returned to argue Flood's case before some of his former colleagues. Kuhn, a onetime star litigator, considered arguing the case himself, but uiltimately deferred to Paul Porter and Louis Hoynes. At oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
s on March 20, 1972, Goldberg reiterated Flood's arguments about the harm done to players by the reserve system. Baseball's lawyers responded to them, but primarily invoked the game's place in American culture and the greater good done it by the reserve system.
Justice Lewis Powell recused himself from the case because he owned stock
Stock
The capital stock of a business entity represents the original capital paid into or invested in the business by its founders. It serves as a security for the creditors of a business since it cannot be withdrawn to the detriment of the creditors...
in Anheuser-Busch
Anheuser-Busch
Anheuser-Busch Companies, Inc. , is an American brewing company. The company operates 12 breweries in the United States and 18 in other countries. It was, until December 2009, also one of America's largest theme park operators; operating ten theme parks across the United States through the...
, which owned the Cardinals.
Decision
By a 5-3 margin, the Court upheld the Federal Baseball and Toolson precedents. One justice, William O. DouglasWilliam O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
, who had been part of the majority in the latter case, dissented this time and expressed his regret. Even Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
's majority opinion conceded that baseball was as much interstate commerce as the other professional sports to which the Court had refused to extend the antitrust exemption.
Majority
Blackmun began the opinion with Section I, "The Game", a prologuePrologue
A prologue is an opening to a story that establishes the setting and gives background details, often some earlier story that ties into the main one, and other miscellaneous information. The Greek prologos included the modern meaning of prologue, but was of wider significance...
recounting the history of baseball
History of baseball in the United States
The history of baseball in the United States can be traced to the 18th century, when amateurs played a baseball-like game by their own informal rules using improvised equipment...
, concluding with a detailed litany
Litany
A litany, in Christian worship and some forms of Jewish worship, is a form of prayer used in services and processions, and consisting of a number of petitions...
of events and finally the names of 83 legendary players from the late 19th to mid-20th centuries, beginning with Ty Cobb
Ty Cobb
Tyrus Raymond "Ty" Cobb , nicknamed "The Georgia Peach," was an American Major League Baseball outfielder. He was born in Narrows, Georgia...
and Babe Ruth
Babe Ruth
George Herman Ruth, Jr. , best known as "Babe" Ruth and nicknamed "the Bambino" and "the Sultan of Swat", was an American Major League baseball player from 1914–1935...
and ending with Jimmie Foxx
Jimmie Foxx
James Emory "Jimmie" Foxx , nicknamed "Double X" and "The Beast", was a right-handed American Major League Baseball first baseman and noted power hitter....
and Lefty Grove
Lefty Grove
Robert Moses "Lefty" Grove was a professional baseball pitcher. After having success in the minor leagues during the early 1920s, Grove became a star in Major League Baseball with the American League's Philadelphia Athletics and Boston Red Sox, winning 300 games in his 17-year MLB career...
. "The list seems endless", Blackmun wrote. In its entirety Section I takes up seven pages of the United States Reports
United States Reports
The United States Reports are the official record of the rulings, orders, case tables, and other proceedings of the Supreme Court of the United States. Opinions of the court in each case, prepended with a headnote prepared by the Reporter of Decisions, and any concurring or dissenting opinions are...
. In the footnotes, he quoted poetry by Grantland Rice
Grantland Rice
Grantland Rice was an early 20th century American sportswriter known for his elegant prose. His writing was published in newspapers around the country and broadcast on the radio.-Biography:...
on "Casey at the Bat
Casey at the Bat
"Casey at the Bat: A Ballad of the Republic Sung in the Year 1888" is a baseball poem written in 1888 by Ernest Thayer. First published in The San Francisco Examiner on June 3, 1888, it was later popularized by DeWolf Hopper in many vaudeville performances.The poem was originally published...
" and allowed of his list: "These are names only from earlier years. By mentioning some, one risks unintended omission of others equally celebrated."
After two further sections recounting the facts of the case, the lower courts' decisions and the Court's previous jurisprudence, Blackmun considered the legal issues at hand. He noted that the Federal Baseball court had not been persuaded by other case law at the time ruling that traveling vaudeville
Vaudeville
Vaudeville was a theatrical genre of variety entertainment in the United States and Canada from the early 1880s until the early 1930s. Each performance was made up of a series of separate, unrelated acts grouped together on a common bill...
companies were engaged in interstate commerce and that other companies use of the mail and rail shipments had so qualified. Federal Baseball had also been cited as precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
in later cases without complaint.
In later cases, brought in the 1950s involving other organized sports and similar activities, the Court had refused to exempt them and noted, as it did when asked to end baseball's exemption outright in Toolson, Congress's relative inactivity on the issue. Since then, Blackmun said, there had been some bills, but all intended to extend the exemption to other sports and none to repeal it entirely.
"In view of all this," he began section V, "it seems appropriate now to say that: Professional baseball is a business and engaged in interstate commerce". Invoking Radovich, he admitted that "the slate is not clean. Indeed it has not been clean for half a century." The antitrust exemption created in Federal Baseball and upheld in Toolson was "an aberration confined to baseball". Nevertheless there seemed to be little desire to end or weaken it, and given the problems he thought a judicial turnabout would cause for baseball, he cited the legal doctrine of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
in upholding the previous rulings, saying "Under these circumstances, there is merit in consistency even though some might claim that beneath that consistency is a layer of inconsistency." Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
signed the opinion, but noted he did not concur in Part I.
"I concur in all but Part I", noted Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren Burger, as well. He did, however, say in his short concurring opinion that he felt Toolson had been wrongly decided and agreed with some other points William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
made in his dissent.
Justice Douglas
Douglas called Federal Baseball a "derelict in the stream of law that we, its creator, should remove. Only a romantic view of a rather dismal business account over the last 50 years would keep that derelict in midstream." He had come to regret having joined the majority in Toolson. He invoked three of the names on Blackmun's list as he agreed with Flood that the reserve clause unlawfully benefited the owners at players' expense:If a case challenging the antitrust exemption were coming before the Court for the first time, he said, he had no doubt he and his brother justices would have ruled differently. "The unbroken silence of Congress should not prevent us from correcting our own mistakes," he concluded. William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
joined his opinion.
Justice Marshall
Brennan also joined Thurgood MarshallThurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
's dissent, a longer review of the case in which he came to the same conclusions as Douglas, expressed in more measured language:
Reaction
Major League Baseball and its owners praised the decision, as did many of their supporters in the media. The players and some of their supporters, such as sportswriter Red SmithRed Smith (sportswriter)
For other uses, see: Red Smith Walter Wellesley "Red" Smith was an American sportswriter who rose to become one of America's most widely read sports columnists.-Career:After graduating from Green Bay East High School, site of Packers home games until 1957, Smith moved on to...
, criticized it. In legal circles, Blackmun's homage to baseball was criticized and ridiculed.
Legacy
The decision is often remembered today as paving the way for free agencyFree agent
In professional sports, a free agent is a player whose contract with a team has expired and who is thus eligible to sign with another club or franchise....
in baseball. However, it did so, according to Bill James
Bill James
George William “Bill” James is a baseball writer, historian, and statistician whose work has been widely influential. Since 1977, James has written more than two dozen books devoted to baseball history and statistics...
, only by showing them they could not rely on the Courts to strike down the antitrust exemption and the reserve clause along with it. But the effort by a player of Flood's stature did galvanize the players, and according to Marvin Miller
Marvin Miller
Marvin Julian Miller is a former executive director of the Major League Baseball Players Association , from 1966 to 1982. Under Miller's direction, the players' union was transformed into one of the strongest unions in the United States...
it made the general public aware of the reserve clause. Labor law proved a more fruitful opportunity for the invalidating of the reserve clause. The next year the National Labor Relations Board
National Labor Relations Board
The National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of...
voted that baseball came under its jurisdiction, and that led to the Seitz decision
Seitz decision
The Seitz decision was a ruling by arbitrator Peter Seitz on December 23, 1975 which declared that Major League Baseball players became free agents upon playing one year for their team without a contract, effectively nullifying baseball's reserve clause...
three years later that Andy Messersmith
Andy Messersmith
John Alexander "Andy" Messersmith is a former Major League Baseball right-handed pitcher. He was the 12th overall pick of the 1966 amateur draft by the California Angels...
and Dave McNally
Dave McNally
David Arthur "Dave" McNally was a Major League Baseball left-handed starting pitcher from until . He was signed by the Baltimore Orioles and played with them every season except for his final season with the Montreal Expos.McNally has the unique distinction as the only pitcher in Major League...
were free agents after they had played out a year without signing new contracts. That event is considered the true beginning of baseball free agency.
Neither Congress nor any court has completely overturned baseball's antitrust exemption. Some bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
s that would do so were named the Curt Flood Act in his honor and later, memory. In 1998, President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
signed one into law making baseball's employment practices subject to antitrust law, a largely moot point since by then free agency was well established (minor league players, however, remain bound to their parent clubs). Flood himself was remembered as much for this case as for his playing career when he died in 1997. He has not been inducted into the Hall of Fame despite his accomplished career and effect on the game.
Legal analysis and criticism
Legal commentators have criticized the decision as not just a mistake but a compounding of the earlier mistake made in Federal Baseball and continued in Toolson. According to antitrust expert Kevin McDonald of Jones DayJones Day
Jones Day is an international law firm founded in Cleveland, Ohio on March 1, 1893, by Judge Edwin J. Blandin and William Lowe Rice. Jones Day is the eighth largest law firm in the world by revenue, and the fourth highest grossing firm in the US with annual revenues of US$1.4 billion...
, Flood v. Kuhn is a "principle of antitrust law that is (1) indefensible as a matter of fact or policy, and (2) an embarrassment to the Court." Holmes' original decision has been misread by both later cases to imply a divination of congressional intent to exclude baseball and a prescription for congressional action to remedy that, he argues: "Just as Toolson blamed Holmes for a problem (an express statutory exemption) that he did not create, Flood blamed him for insisting on a solution (Congressional action) that he did not mention."
Yale law professor
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
William Eskridge, a harsh critic of the decision, has called it "the most frequently criticized example of excessively strict stare decisis." It is often counterpointed to the Court's decision in the 1940 trust case Helvering v. Hallock, where Justice Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
explicitly rejected the idea, embraced by Blackmun in Flood, that the Court should consider congressional inaction as a tacit statement of acquiescence with one of its existing holdings, however questionable they may have seemed. Eskridge notes that there are many reasons besides express lack of intent that would forestall Congressional action to remedy a flawed Court decision.
Blackmun's list
Even years after his death, Blackmun's paean to the game was still criticized as "rambling and syrupy" and "juvenile". Roger Ian Abrams at Northeastern University School of LawNortheastern University School of Law
Northeastern University School of Law is a law school in Boston, Massachusetts. From the time of its founding in 1898, the law school's mission has focused on addressing the needs of students and of society....
, who found that Blackmun had likely used Lawrence Ritter's 1966 book The Glory of Their Times as his primary source, showed how the careers of many of the players he listed had been impacted, often adversely, by the reserve system.
Blackmun himself acknowledged in 1987, that his colleagues on the Court had, as Burger and Douglas's opinions suggest, seen it as "beneath the dignity of the Court". But he expressed no regrets, save the discovery by his clerks
Law clerk
A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court. Most law clerks are recent law school graduates who...
that, after the decision had issued, he had forgotten Mel Ott
Mel Ott
Melvin Thomas Ott , nicknamed "Master Melvin", was a Major League Baseball right fielder. He played his entire career for the New York Giants . Ott was born in Gretna, Louisiana. He batted left-handed and threw right-handed...
. In his personal copy of the decision he penciled Ott's name in.
Condemnation has not been universal. One commentator has defended it as a "trace of resistance to the hyperrationality of contemporary legal discourse". "If Flood is seen, however, as a decision grounded in a desire to adopt sound legal rules for sports leagues, Part I makes eminent sense," says Illinois law professor Stephen F. Ross. He goes on to read the decision as doing exactly that, countering critics who charge it with being an overly strict application of stare decisis by showing how Blackmun and the other majority justices could reasonably, at that time, have been convinced that "contemporary antitrust doctrines would condemn many arrangements among owners that are arguably essential to baseball".
See also
Flynn, Neil F. - "Baseball's Reserve System: The Case and Trial of Curt Flood vs. Major League Baseball" (www.walnutparkgroup.com)- List of United States Supreme Court cases, volume 407
- Bosman rulingBosman rulingUnion Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman is a 1995 European Court of Justice decision concerning freedom of movement for workers, freedom of association, and direct effect of article 39 of the EC Treaty...
– 1995 European Court of Justice decision reaching an opposite verdict with regard to soccer players