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Friday, July 22, 2011

Winning and losing legal battles and the legacy of Curt Flood

HBO Sports has produced an excellent documentary (narrated, of course, by Liev Schreiber), The Curious Case of Curt Flood, examining Flood's career, unsuccessful federal-court fight to establish free agency, and life after baseball. Among the commentators is Wisconsin Prawf Brad Snyder, who wrote a fantastic book on Flood's case, A Well-Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports.

One of the subjects the movie tackles is Flood's precise legacy. The popular myth (and I use myth in both its meanings) is that Flood successfully challenged baseball's reserve system (which essentially allowed MLB Clubs to continually renew a player's one-year contract) and created free agency. But Flood did not win, losing in a 1972 decision that has become infamous for two things: 1) Justice Blackmun's otherise-pointless paen to the glory and history of baseball (which Chief Justice Burger and Justice White refused to join and which excluded Joe DiMaggio from the list of greatest players) and 2) a logical progression of, essentially, "We were wrong in our two prior precedents holding that MLB is not engaged in interstate commerce and thus not subject to the Sherman Act, but at this point it is for Congress, not us, to change it." Free agency came about three years after Flood, as a result of a labor arbitrator's decision (that may well have been legally incorrect, according to some) in a griveance filed by two other players, Andy Messersmith and Dave McNally.

So why is Flood widely spoken of, especially by the media and other professional athletes, as the person who made free agency possible? And what does that tell us about what it means to win and lose legal-reform battles?

1) Several commentators in the film argued that Flood put free agency in moral terms, something Messersmith and McNally did not and could not do. Rhetorically this is true. Flood, who had been active in the Civil Rights Movement, spoke of the reserve system as slavery and argued that "a well-paid slave is still a slave" (the quotation which gave Snyder his book title). Whether Flood was right to speak in terms of slavery, no white player could have done the same. In any event, the point was that the existing system was morally wrong and had to change.

But putting his own lawsuit in moral terms did not help Flood himself, who aroused the ire and opposition of the old guard of very conservative, largely white sports writers who were closely tied to teams and owners and were shockingly (compared with today) hostile to players who stepped out of line. And it did not help him in his lawsuit. But did the moral rhetoric ultimately affect the outcome of the legal battle? Did it influence the later resolutions in arbitration?

2) Snyder argues that Flood's case, even if ultimately unsuccessful, swung public opinion in the players' favor. Perhaps that gave the players greater leverage in labor negotiations or even influence the subsequent arbitration decisions. This becomes another instance of public opinion affecting legal decisionmaking. Of course, the change in public opinion still ahd to overcome the hostility of most sports writers, particularly columnists.

3) Snyder argues that the real effect of Flood's lawsuit was to accelerate free agency by accelerating the collective bargaining process between MLB and the Players' Association. MLB's argument during the Flood trial was that this was not an antitrust matter, but a matter for collective bargaining. The players and owners were negotiating what became the 1970 Basic Agreement during the trial in 1979; that agreement ultimately included a 10-and-5 rule (a player with ten years MLB experience and five with the same club could veto any trade--this would have allowed Flood to veto his trade from the Cardinals to the Phillies) and independent grievance arbitration, which ultimately produced decisions rejecting the reserve system. Snyder argues it was not a coincidence that MLB gave the players through collective bargaining the things that it insisted warranted rejecting Flood's antitrust argument. He quotes then Union head Marvin Miller as saying that the owners rejected an independent grievance process in December 1969, prior to Flood filing suit, then agreed to it six months later.

If Snyder is right, it tells us something about the need for legal movements to proceed on multiple fronts. Just as the civil rights agenda had to be pursued through both the courts and Congress, the players had to pursue free agency and higher salaries in the courts, at the collective-bargaining table, and even in Congress (where the threat of removing MLB's antitrust exemption lurked for years). Ultimately, the movement may achieve some success in each arena. Or at least the arguments made in one forum necessary influence conduct and results in another.

4) The fourth possibility is that Flood was a martyr to the cause. And successful social movements arguably always need martyrs, those people who sacrificed something but failed in their efforts to establish some change and never enjoyed the benefits or fruits of that sacrifice. Flood is like, say, John Brown or Harvey Milk. The players who successfully challenged the reserve system in arbitration got their pay days (or in McNally's case, retired following the arbitrator's decision). Flood attempted to come back in 1971, but retired after just 13 games, his skills having eroded from his year off; so, in effect, he sacrificed his career to change the system. The next two decades of his life, the movie shows, were spent in a spiral of business, financial, legal, and alcohol problems, as well as a failed stint as an announcer. He never got his payday. Morover, he was something of a late-discovered martyr. His sacrifice was not widely acknowledged until the 1994 players' strike. At that point he became the public face of challenges to MLB's power, only to contract cancer and die at age 59 in 1997. Legislation to eliminate baseball's antitrust exemption was introduced shortly after his death and named in his memory.

Posted by Howard Wasserman on July 22, 2011 at 11:13 AM in Howard Wasserman, Sports | Permalink


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