Curt Flood, Collective Bargaining,
and the Struggle for Free Agency
Artemus Ward
Department of Political Science
Northern Illinois University
aeward@niu.edu
Introduction
• We will discuss how the owners and the
commissioner were finally checked by the
first successful union of players.
• Their battles, symbolized by the case of
player Curt Flood, led to unprecedented
player gains and ultimately the end of the
reserve system.
• Yet through it all, labor strife remained, as
did baseball’s antitrust exemption when
the U.S. Supreme Court once again
refused to overturn it.
Major League Baseball Players Association
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Major league players had attempted to unionize since the early days of the
organized game. The first union, the Brotherhood of the 1880s,
disappeared in the ashes of the Players League. The League Protective
Players’ Association only lasted from 1900-02 during the AL’s war with the
NL. Attorney David Fultz started the Baseball Player’s Fraternity in 1912
and it lasted through the Federal League era until 1918. Lawyer Robert
Murphy led the 4th union—the American Baseball Guild—for one season in
1946. But in the 1950s the Major League Baseball Players Association
(MLBPA) was finally able to sustain a player’s union.
Created in 1953 to deal primarily with working conditions and player
benefits—namely pensions—it had only a part-time executive director,
Frank Scott, and after 1960 a part-time legal consultant, Judge Robert
Cannon.
Representatives selected by each team met 3 or 4 times a year, and there
was an association president, a position initially held by pitcher Bob Feller.
In its early years, it largely followed the owners’ agenda. Judge Cannon
was seen as too close to the owners, aspired to be commissioner, and he
himself saw his role as an intermediary between the owners and the
players rather than an advocate for the players. In his testimony to
Congress in 1964 he said: “We have it so good we don’t know what to ask
for next.”
By 1965 the MLBPA decided to hire a full-time director and a year later
chose Marvin Miller, a labor economist who had worked for the United
Auto Workers and the United Steel Workers union.
Miller set about transforming the MLBPA into an organization that could
counter the commissioner and the owners. In order to do that, he would
need solidarity among the players. He said that the “players were not only
ignorant about unions, they were positively hostile to the idea: they didn’t
know what a union was, but they knew they didn’t want one.”
Robert Cannon
Marvin Miller
Koufax and Drysdale Holdout
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The top two pitchers for the Los Angeles Dodgers—Sandy
Koufax and Don Drysdale—were dissatisfied with their 1965
salaries.
Before the 1966 season began, Koufax and Drysdale met
separately with Dodger GM Buzzie Bavasi to negotiate their
contracts for the upcoming year. After Koufax's meeting, he
met Drysdale for dinner and complained that Bavasi was
using Drysdale against him in the negotiations, asking, "How
come you want that much when Drysdale only wants this
much?" Drysdale responded that Bavasi did the same thing
with him, using Koufax against him.
In response, the pitchers formed a two-person negotiating
team and hired an entertainment lawyer to represent their
salary interest. They asked for a combined $1 million over
three years.
Dodger president Walter O’Malley was outraged, vowing that
he would never bargain with an agent.
After a short holdout, where the players made money from
acting and other appearances, the players received
substantial raises: Koufax’s salary nearly doubled to
$125,000 and Drysdale got $115,000.
The actions of the star pitchers exemplified the growing
unrest among the players with regard to the reserve clause
and their relatively low salaries.
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Ford Frick
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William Eckert
Early Commissioners
After Landis’ departure in 1944, there were three
commissioners prior to 1968.
Happy Chandler (1945-1951) was viewed by many as a
“player’s commissioner,” establishing a player pension fund
and shepherding the racial integration of the game. But he
served only one term as owners were not happy with his
player-friendly stance.
Ford Frick (1951-1965) was a long-time baseball executive
(he was NL president from 1934-51) and an owner’s
commissioner. He supported team movement at an
unprecedented level during his tenure, presiding over the
expansion of baseball, the establishment of multiple national
television contracts, a league draft and college scholarship
system, and the introduction and growth of baseball on the
international level in countries such as Japan, Central
America, Holland, Italy and Africa.
William D. Eckert (1965-1968) had no baseball experience
but had been a general in the U.S. Air Force and possessed
a master’s in business administration. He helped streamline
baseball’s organization, stabilized franchises with bigger
stadiums and long-term leases, and continued to promote
baseball internationally. But Eckert was in over his head as
the players organized under Marvin Miller and he was
powerless to stop them as his health deteriorated.
Commissioner Bowie Kuhn
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Bowie Kuhn
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Ted Turner
A former Wall Street lawyer, Kuhn served as legal counsel for
Major League Baseball owners for almost 20 years. In 1966 he
successfully defended the league’s transfer of the Milwaukee
Braves franchise to Atlanta in an antitrust lawsuit in the Wisconsin
state courts. He was named commissioner in 1969 and held the
office through 1984. He was elected to the baseball Hall of Fame
in 2008 nine months after his death.
A number of episodes under Kuhn’s watch demonstrate the power
of the commissioner’s office. For example, In 1970, he suspended
star Detroit Tigers pitcher Denny McLain indefinitely (the
suspension was later set at 3 months) due to McLain's
involvement in a bookmaking operation, and later suspended
McLain for the rest of the season for carrying a gun. He barred
both Willie Mays (in 1979) and Mickey Mantle (in 1983) from the
sport due to their involvement in casino promotion; neither was
directly involved in gambling, and both were reinstated by Kuhn's
successor Peter Ueberroth in 1985.
In 1977 Kuhn battled the brash new owner of the Atlanta Braves
Ted Turner. Turner admitted that he had made remarks at a
cocktail party about acquiring Giants star Gary Matthews, at a time
when Kuhn had ordered owners not to speak about potential free
agents. Kuhn concluded that Turner’s statement was not in the
“best interest of baseball” and fined Turner, suspended him from
baseball for one year, and penalized his club with the loss of a
draft choice. Turner sued but both the trial and appellate courts
refused to grant Turner relief, emphasizing the limited-extent of
judicial review over baseball and the commissioner’s office.
Collective Bargaining
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Marvin Miller and the MLBPA began discussions with the commissioner’s office that would
lead to the first of a series of Basic Agreements. These agreements would not only redefine
the relationship between baseball’s owners and players but would seriously undermine one
of the basic operational tenets of professional baseball that had persisted since the days of
A.G. Spaulding: the idea that team owners had an unassailable monopoly on deciding what
was “in the best interests” of baseball.
The starting point for this process was the Basic Agreement of 1968 or the Collective
Bargaining Agreement (CBA), which was revised in subsequent years. It not only
established the credibility of Miller and the MLBPA but it included provisions on issues such
as pension benefits and union dues which were already in place as well as new issues
such as salaries, scheduling, and preseason and postseason stipends.
But perhaps the most important provision of the CBA was the creation of “a Grievance
Procedure, the purpose of which is to set forth an orderly and expeditious system of
handling and resolving all grievances.” The actual procedure for the “arbitration” of players’
grievances was spelled out at length and listed the “rights” of both parties. It meant that, for
the first time, players could get a “fair hearing” for their grievances. Initially, the
commissioner was the final arbiter of all grievances. By 1970 both the players and owners
set up a three-member, arbitration panel consisting of an owner’s representative, a players’
representative, and an “impartial arbitrator” who would be agreed on by both sides. And
while all decisions would technically be 2-1 votes, the neutral arbitrator would always be the
deciding vote. For the first time in baseball history, the commissioner would no longer have
the final word on player disputes.
However, the one issue that the owners refused to include or make subject to collective
bargaining was the reserve clause. But a joint study committee on the reserve system was
established by the agreement and meetings were held on the matter beginning in April
1969. Still, as the years progressed, nothing ever happened on this issue as owner’s
repeatedly rejected any MLBPA proposal to modify the reserve system.
Curt Flood
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Curt Flood was an outstanding CF for the St. Louis
Cardinals. After a strong season in 1969 he asked
Cardinal owner—and Anheuser-Busch Brewing Co.
president—August “Gussie” Busch for a $30,000
raise above his $90,000 salary. Busch was incensed;
he denied the raise and privately vowed retribution.
Flood was informed that he had been traded to the
Philadelphia Phillies.
But Flood wanted to stay in St. Louis and sent a letter
to Commissioner Kuhn asking him to nullify the trade:
“After twelve years of being in the major leagues, I do
not feel I am a piece of property to be bought and
sold irrespective of my wishes I believe that any
system which produces that result violates my basic
rights as a citizen.”
Kuhn denied the request and said that Flood had two
choices: play for the Phillies or not play at all. Flood
sat out the 1970 season—despite the Phillies
$100,000 salary offer—and with the help of the
MLBPA filed an antitrust suit in federal court
requesting free agency. Flood and the MLBPA hired
former Supreme Court Justice Arthur Goldberg but
they lost at both the trial and appeals court before the
U.S. Supreme Court agree to review the case.
Flood v. Kuhn (1972)
Justice Harry Blackmun delivered the opinion of the Court
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The Supreme Court voted 5-3 to uphold the 1922 Federal Baseball
decision and reject Flood’s claim.
After an unnecessary and sentimental opening section recounting
baseball’s past, Justice Harry Blackmun’s majority opinion called
baseball’s antitrust exemption an “aberration” and an “anomaly”
and said flatly that “Professional baseball is a business and is
engaged in interstate commerce.”
Yet he noted that congress had failed to pass antitrust legislation
revoking baseball’s exemption. Hence, the Court said that the 1922
Federal Baseball decision and its progeny such as Toolson, should
be respected based on the principle of stare decisis. He said there
is “merit in consistency even though some might claim that beneath
that consistency is a layer of inconsistency.” In short, these longstanding precedents must be followed and applied to current cases
because baseball’s antitrust exemption has been tacitly agreed to
by congress through their refusal to undo it—something Blackmun
called “positive inaction.”
The Court also seemed to suggest that baseball’s reserve system
was exempt from state antitrust laws under the reasoning that state
regulations that unduly burden interstate commerce were
unconstitutional, even if, as in this case, Congress had not acted. In
other words, as long as Congress and the Supreme Court had
seen fit to exempt baseball from antitrust laws, no individual state
or states could remove that exemption and regulate the game.
Flood v. Kuhn (1972)
Justices William O. Douglas, Thurgood Marshall, and William Brennan dissenting
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In dissent, Justice Douglas (joined by Brennan) said that with
regard to the Court’s commerce clause jurisprudence Federal
Baseball is a “derelict in the stream of law that we, its creator,
should remove.” He said that baseball “is today big business
that is packaged with beer, with broadcasting, and with other
industries.” He chided Blackmun’s flowery opening section:
“This is not a romantic history baseball enjoys as a business. It
is a sordid history.” He concluded: “While I joined the Court’s
opinion in Toolson v. New York… I have lived to regret it; and I
would now correct what I believe to be its fundamental error.”
In his dissent Justice Marshall (also joined by Brennan)
explained that the Court regularly overruled precedents it
determined to be in error and should do so here. He further
explained that it made no sense to leave baseball outside the
reach of federal law when basketball, football, and hockey were
covered. Finally, he said the reserve system “virtually enslaved”
Flood and “some 600 baseball players” since the Court’s
decisions in Federal Baseball and Toolson. Furthermore,
congress never acquiesced to the reserve system.
After Flood was announced, the New York Times commented:
“The only basis for the judge-made monopoly status of baseball
is that the Supreme Court made a mistake the first time it
considered the subject 50 years ago and now feels obliged to
keep on making the same mistake because Congress does not
act to repeal the exemption it never ordered.”
William O. Douglas
Thurgood Marshall
The Finley-Hunter Case
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A former steelworker from Gary, Indiana, who made millions by marketing
group insurance to physicians, Charles O. Finley purchased the Kansas
City A’s in 1960, five years after the team had moved west from
Philadelphia. He again moved the team further west to Oakland in 1968.
He was innovative and controversial first in Kansas City when in 1965 he
signed 59-year-old Satchel Paige to pitch one game. In Oakland he
upped the ante: he dressed his players in garish uniforms, brought his
mule to functions, used an orange baseball, was responsible for the
American League’s adoption of the designated hitter in 1973, and
convinced baseball to play weekday World Series games at night to
maximize television exposure and advertising revenue.
But he is most important because his stinginess produced the first free
agent and because he attempted to sell his best players at the height of
their careers.
Jim “Catfish” Hunter was a star pitcher for Finley’s A’s. Hunter wanted half
of his $100,000 salary to be paid to an investment company which funded
an annuity for his retirement. Finley refused to pay because the team
could not deduct the $50,000 as a business expense. Hunter filed a
grievance against Finley for violating his contract under the collective
bargaining agreement between the owners and the players. Since 1970,
the collective bargaining agreement had provided for the arbitration of
unresolved differences between owners and players. Peter Seitz, the
“neutral” arbitrator, found in favor of Hunter under a provision in his
contract which read “The Player may terminate this contract…if the Club
shall default in the payments to the Player.” Hunter was awarded free
agency and signed a multi-million dollar contract with the New York
Yankees making him the only player in baseball to be playing with a
multiyear contract in 1975.
Labor Arbitration
and the End of the Reserve System
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Notwithstanding the Flood case, the MLBPA had shown increasing solidarity
and strength. For example, in the winter of 1968-1969, all of the players
refused to sign their contracts until Miller and Kuhn had negotiated changes in
MLB contributions to the players’ pension fund. At the start of the 1972 season,
Miller and the MLBPA organized the first successful players’ strike, again over
the pension fund issue, which delayed the opening of the season.
Then on the heels of the Finley-Hunter case, the Player’s Association launched
a full frontal attack on baseball’s reserve system.
Historically, the principal effect of MLB’s antitrust exemption was that the teams
could continue to employ the reserve system, binding players to their existing
teams for life. MLBPA pushed for unrestricted free agency.
Compromises were reached. The new Basic Agreement of 1972 allowed
veteran players—those with 10 years in the same league and 5 years with the
same team—the right to “veto” a trade to a particular team. In addition, players
with two years with the same team could go to salary arbitration where a
neutral arbitrator would rule for either the team’s contract offer or the player’s
contract demands based on what comparable players received. The result has
been that salary arbitration has protected baseball—unlike other sports—from
player “holdouts” because of contract disputes.
But arbitration led to the undoing of the reserve system. In 1975 pitchers Dave
McNally and Andy Messersmith had their contract disputes heard by arbitrator
Peter Seitz and on December 23, 1975 he ruled in favor of the players. The
standard contract said: “the Club shall have the right…to renew this contract for
the period of one year at the same terms.” Owners claimed that each renewal
of a contract also renewed this one-year option clause, which the club could
then renew again and again. Instead, Seitz ruled that an unsigned player could
only be reserved for one year and one year only. After that he was a “free
agent.” Hence McNally and Messersmith were free to negotiate with the team
or teams of their choice for the best terms they could arrange.
The Owners Fight Back
Kansas City Royals Baseball Corporation v.
Major League Baseball Players Association (1976)
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Peter Seitz
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Donald Fehr
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Following the Messersmith and McNally ruling, the owners immediately fired Seitz.
But rather than have a new arbitrator review the decision, they made a strategic
miscalculation by attempting several unsuccessful appeals of the arbitration ruling
in federal court.
In Kansas City Royals Baseball Corporation v. Major League Baseball Players
Association (1976) a federal judge ruled in favor of the players’ association. The
court said that the arbitration panel did in fact have jurisdiction to hear the
grievances and had not exceeded its authority by formulating the remedy of free
agency. A month later the court of appeals affirmed the decision.
But the owners imposed a lockout in 1976 before MLB and the Players Association
reached a collective bargaining agreement in July that granted free-agency rights to
players with six years of major league experience. Marvin Miller understood that the
chaos of total free agency would drive down players’ salaries, with players bidding
against players. By limiting free agency to certain players, Miller cleverly decreased
the supply of available free agents in any one year. As a result, clubs bid against
clubs for the available talent. Players’ salaries doubled the next year and tripled
over the next five years.
A young Kansas City lawyer, Donald Fehr, represented the MLBPA in the court
action. Marvin Miller was so impressed with Fehr that he hired him full-time for the
MLBPA and when Miller retired in 1983 Fehr took over as head of the Players’
Association.
The Messersmith decision was of enormous historical importance. It marked the
beginning of the professional sports revolution in labor relations and provided
substantial economic power to baseball players and their union. It opened the
floodgates of free agency, and player salaries skyrocketed in the new free market.
When combined with salary arbitration, free agency led to a tenfold increase in
player salaries over the next decade.
Player Salary Bargaining Rights
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Under the collective bargaining agreement (CBA),
baseball players have three different levels of
salary bargaining rights.
1. Junior players without sufficient major-league
service to qualify for salary arbitration are bound
to the “antebellum” reserve system; they either
accept their club’s offer, at or above the minimum
salary set in the CBA, or leave the game.
2. Players eligible for salary arbitration have
considerably more bargaining power, and as a
result, the salaries of players who reach that level
almost double.
3. Those who have qualified for free agency let the
market of competing clubs determine their
salaries. For some, it brings unimaginable riches.
Continuing Labor Strife
• Despite the Messersmith and McNally decision, the struggle between
the owners and players over labor matters continued.
• There were player strikes in 1980, 1981, and 1985. The owners
succeeded in 1985 of increasing the eligibility period for salary
arbitration from two to three years. The owners and the
commissioner colluded against free agents from 1985-1987. There
was an owner lockout in 1990. The 1994 strike was by far the longest
and bitterest, lasting 232 days and causing the cancellation of the
end of the regular season, playoff games, and the World Series. All
took place before or during negotiations over a new agreement
between MLB and the MLBPA, and all involved in some fashion free
agency, free-agent compensation, salary arbitration, and salary caps.
• Despite the gains made on labor issues, baseball’s antitrust
exemption encompassed other issues that in the long run were just
as vital to the well-being of the business of baseball such as league
expansion and the awarding and switching of franchises, broadcast
revenues and rights, and the construction of new stadiums and the
replacement of older ones.
Conclusion
• The establishment of the MLBPA and its head
Marvin Miller transformed the game through
collective bargaining with the owners.
• Curt Flood’s unsuccessful challenge to the
reserve system helped paved the way for free
agency.
• By creating an arbitration system for labor
disputes, MLB and the MLBPA set the stage for
the end of the reserve system. Arbitrator Peter
Seitz’s decision in the cases of Messersmith and
McNally marked the end of the reserve system
and the flowering of free agency.
Bibliography
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Abrams, Roger I. 1998. Legal Bases: Baseball and the Law. Philadelphia, PA: Temple University
Press.
Flood v. Kuhn, 407 U.S. 258 (1972).
Goldman, Robert M. 2008. One Man Out: Curt Flood versus Baseball. Lawrence, KS: University
Press of Kansas.
Kansas City Royals Baseball Corporation v. Major League Baseball Players Association, 409 F.
Supp. 233 (1976), appeal 532 F. 2nd 615 (1976).