December 3, 2025 • 51 mins
Curt Flood was the best center fielder in baseball and one of the game's highest payed players. He helped the St Louis Cardinals reach the 1968 World Series... but then got traded. The rules said he had no say in the decision. He either could go to Philly, or quit the sport. So Curt decided to sue.
Curt argued that Major League Baseball should act like any other business and let workers sell their labor to whichever team they liked. But for decades, courts had ruled in favor of the team owners. Curt’s fight would destroy his career; anger many parts of American society; and change sports forever.
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Speaker 1 (00:17):
Pushkin too quick.
Speaker 2 (00:19):
No, it's perfect push kid, stop you got it.
Speaker 1 (00:37):
Robert Smith, here we are again.
Speaker 3 (00:40):
Why do you do that narrative thing, you know where
you start with like a date and right in the
middle of the story, the date is nineteen sixty eight.
Speaker 1 (00:47):
Good one subject is baseball, specifically the Saint Louis Cardinals,
and nineteen sixty eight was a good year for the
Saint Louis Cardinals. They went all the way to the
World Series, lost in seven games to the Tigers. And
for nineteen sixty nine, for the next season, they were
looking good. Their big stars were coming back. Crucially for
our story. One of those returning stars was Kurt Flood.
(01:08):
Sports Illustrated said he was the best center fielder in baseball.
He was an All Star. He was the co captain
of the team. So things were looking good for the
Cardinals going into that year. But the president of the
team one Augustus Anheuser Busch Junior. There was actually an
Anheuser Busch. I love that, yes, and an Augustus Adheuser
(01:29):
Busch Junior Yes, aka Gussie Bush aka aired to the
Budweiser Fortune. He was the president of the team and
he was worried. He did not like the way things
were going. He ran out Anheuser Busch, and he had
convinced the company back in the fifties to buy the Cardinals,
and he built the Cardinals into this World Series champion
(01:49):
in the sixties. So now we're in the late sixties,
he's getting worried. He actually goes down to spring training,
down to Florida at the start of the sixty nine
season to tell the players what he thought was wrong,
what he thought they were doing wrong.
Speaker 3 (02:02):
They love that, They love it.
Speaker 1 (02:03):
When he comes to test him. Oh, thank you, Gussie Bush.
And interestingly, it wasn't their play that he was worried about.
It wasn't what they were doing on the field. It
was what they and their union had been doing off
the field in the off season, and specifically, they'd been
negotiating for a higher share of baseball's TV revenues, and
(02:26):
Gussie Bush, businessman, did not like the way this looked.
So he gave this talk. He actually invited the press
in to hear him give this sort of lecture to
the players, and the next day was on the front
page of the Saint Louis Post Dispatch. Robert when don't
you give us Gussie Bush's key quote?
Speaker 3 (02:45):
All right? He said, too many fans are saying our
players are getting fat, that they only think of money
unless of the game itself. Oh, those businessmen always go
back to the love of the game. That's why we
say you so little the love of the game.
Speaker 1 (02:59):
Yes, so you know, the players at the time didn't
say much. They actually asked Kurt Flood in this newspaper
story for a comment. He's like, the big Boss has spoken,
I'm not going to comment. But he wrote a book
a few years later and said, unsurprisingly that he didn't
like this speech. He said, in particular that Gussie Bush
was talking to the players like a rabble of ingrates.
(03:22):
And at this moment this rift was opening up between
Kurt Flood, one of the key stars on the team,
and Gussie Busch, the owner of the team, And over
the course of the sixty nine season, the rift gets wider.
And then at four am on October eighth of that year,
Kurt Flood gets a phone call, gets woken up by
(03:43):
a phone call, and he rolls over and picks up
the phone and calling him is a guy who works
for Gussie Bush. Gussie didn't even make the call in
se Gussy didn't even make the call himself. No, it
was one of his underlings. It was a middle manager basically.
And what the guy on the phone says to Kurt
Flood is after twelve years playing in Saint Louis, basically
all of his adult life, Flood is getting traded to
(04:05):
the Philadelphia Phillies. Philly is the punishment. Philly is the punishment. Yeah,
And it really did seem like that to Kurt Flood, because,
I mean a Philly had just finished second to last
in their division. And on top of that, Kurt Flood
was black, and the Phillies fans had a tradition of
treating the team's own black players really badly. Like one
(04:25):
one star outfielder in the sixties for the Phillies who
was black, actually started wearing a helmet because the Phillies
owned fans threw stuff at him so much.
Speaker 3 (04:34):
Right, so he doesn't want to be with the losers
who also hate him.
Speaker 1 (04:38):
Yes, well said, but the way baseball worked at the time,
he didn't have a choice because the rule was when
you got drafted by a major league team, you played
for that team forever or until they decided to trade you,
and if you didn't want to go, you could quit baseball.
(04:58):
This was actually explicit in every player's contract. They called
it the reserve clause because the teams reserved the rights
to each player. And Flood actually, when he was writing
later about the Gussie Bush speech in the Locker Room,
he used the word feudal feudal to describe this system,
like eudl not utili. Yeah. Yeah.
Speaker 3 (05:21):
In other words, it was like the system where peasants
were tied to the land. They could not move, they
had to give part of their crops to the feudal lord.
Speaker 1 (05:31):
Yes, right, And in this metaphor, the feudal lord is
Gussie Bush, and the players are tied not to like
a potato field, but to a baseball field. Right. Of course,
it seems much more appealing to be a professional baseball
player than a medieval surf But on a fundamental level,
Kurt Flood thought this was unfair, unjust.
Speaker 3 (05:49):
There's a reason for this and a reason why it
existed for years, which is people thought that it kept
the game competitive. It kept the richest teams from just
buying the best players and then winning all the games.
Speaker 1 (06:00):
That's no fun. Yes, yes, right, if you had just
a wide open free market, it might in fact destroy
the game. But still, but still, Kurt Flood thought that
the essence of this rule, this idea that you had
to be tied forever to the whims of whatever team
happened to draft you, was unfair, and that surely there
(06:20):
would be a more fair way to structure the game.
And so he decided to fight. He decided to try
and change the rules. His fight wound up going all
the way to the Supreme Court. It helped change the
business of professional sports forever, and it also, at least
for a while, destroyed Kurt Flood's life.
Speaker 3 (06:39):
I'm Jacob Wilts, I'm Robert Smith, and this is Business History,
a show about the history of business. I love the
story of Kurt Flood and the reserve clause because it's
about more than sports. It is about this classic division
between capital and labor, the money interests and the workers.
(07:00):
Every business has this dilemma of who should share in
the profits, and this goes to every single corporation in America,
this decision about who shares in the riches. Right, So
this is a story about that. It's about antitrust, it's
about competition, and it's a story about when people stop
thinking of this professional sports as just a game and
(07:23):
more as what it is, big business, really big business.
Speaker 1 (07:27):
Okay, So nineteen sixty nine, that's the moment we're talking about, right,
that's the season that started with that lecture from Gussie Bush.
In that season, Kurt Flood was one of the highest
paid players in baseball. He made ninety thousand dollars. Robert Smith,
how much is that in twenty twenty five dollars?
Speaker 3 (07:44):
Two billion dollars? Yes, two billion, No a courteous man. Ever, Yes,
According to.
Speaker 1 (07:49):
The Bureau of Labor Statistics CPI inflation calculator, which I love,
it was eight hundred and nineteen thousand dollars, So about
eight hundred thousand dollars.
Speaker 3 (07:59):
Pretty good, So a lot of money compared to other workers,
but not what professional baseball players, especially very good ones,
are making today.
Speaker 1 (08:06):
Exactly right, So is it a lot of a little well,
by today's standards, it's trivial, right, A star would make
really whatever, I don't know what twenty times that today?
Something right? And so there's a couple reasons for that.
Why is his pace so much lower than what contemporary
players make? Reason one is Major League Baseball is just
a much bigger business today after adjusting translation, the pie
(08:28):
is bigger. But reason two is the players at the
time had much less leverage. Right, if you have to
play for the team that drafted you or quit baseball,
there's not that much you can do to demand a
higher salary, right, So players were in fact getting a
smaller share of a smaller pie.
Speaker 3 (08:48):
Which, if you think about it, is wild. Like think
about any other industry, tech, Google and Apple. I mean,
imagine they could sign the greatest computer science majors at
Stanford and MIT and sign them to a contract forever.
Like I'm sorry, you're on team Apple. You are on
team Apple. I can trade you to team IBM, but no,
(09:10):
you're on team Apple. And that situation, they are certainly
not going to pay them a lot of money. They'll
pay him some money, but like you don't have why.
Speaker 1 (09:18):
Wouldn't they pay their market rate when they don't have to? Yeah,
when they could keep them forever.
Speaker 3 (09:22):
And obviously if Apple did this it would be illegal
and interact Apple did do it.
Speaker 1 (09:27):
Of about ten years ago or something, there was this
major scandal there a few big tech companies had this rule.
Among each other like CEO to CEO, where they wouldn't
try and recruit each other's employees. And when it was
made public, they got in trouble. They had to pay
hundreds of millions of dollars because it's a violation of
anti trust. Low. You can't do anti competitive Yeah, but
(09:50):
in baseball in nineteen sixty nine, that was how it works.
That's what the reserve clause was. And Kurt Flood thought
that was ridiculous, right. He thought he was a worker,
just like any other worker, should be able to go
work for any company that would hire him. And so
when he heard that he was going to be traded
to the Phillies, he thought, maybe I should just sue.
(10:12):
Maybe it is illegal, right, maybe I should go go
to court and fight the reserve clause. To figure out
whether he should do this, he flies to New York
City to talk about this idea of suing baseball with
the guy who is the head of the players union.
This is an interesting guy. His name's Marvin Miller. Grew
up in Flatbush in Brooklyn, rooting for the Dodgers. Yeah,
(10:33):
Ebbittsfield was in the steel Workers Union, worked his way
up there and just in the past few years, just
in the nineteen sixties, has turned the players Association into
like a full fledged labor union, like a real union.
And so Miller is actually part of what Gussie Bush
was talking about in that lecture. In fact, one of
his employees, one of the other senior guys at the team,
(10:54):
in that same locker room speech, complained about Miller by name, right,
So he's part of what's going on here. So Miller
takes Flood out to breakfast in New York at the
Summit Hotel in Manhattan, and over breakfast he lays out
the legal landscape because he's been thinking about this too,
and there is precedent here. In fact, there have been
(11:15):
two earlier cases that are relevant that have gone all
the way to the Supreme Court.
Speaker 3 (11:20):
And the cases were brought under the Sherman Antitrust Act
of eighteen ninety, the classic right, this is the key
law for regulating competition in America. And this law banned
I'll rate it every contract, combination, or conspiracy that restricted
trade or commerce.
Speaker 1 (11:36):
Among the several states. And so that last phrase there
among the several states.
Speaker 3 (11:41):
This is because of the Constitution says the federal government
can only regulate interstate commerce. Right, so if there's any
sort of business that goes across state lines, the Sherman
Anti Trust Act says you cannot collude.
Speaker 1 (11:55):
Yes, And I'm belaboring that phrase and that interstate commercation
because it actually turns out to be key here. The
first relevant case got to the Supreme Court in nineteen
twenty two. And what had happened at the time interesting
business story. Actually, there were two different professional baseball leagues
sort of competing against each other at the time. There's
(12:16):
Major League Baseball, which we know today, and then there
was also the Federal Baseball League. That's funny to say,
Federal Baseball League. So and what happened was classic monopoly play. Actually,
the Major League Baseball owners were buying up Federal Baseball
League teams to sort of bring them into the Major League.
(12:38):
So they were essentially using buyouts to eliminate their competition.
Sounds anti competitive, classic thing you're not supposed to do.
And so this case goes all the way to the
Supreme Court, and in fact Oliver Wendell Holmes, one of
the most famous justices I would say ever, right, writes
the decision and what he says is The business of
(13:01):
baseball is selling tickets to the game.
Speaker 3 (13:04):
Right, teams may travel from state to state. The entire
league comprises several states.
Speaker 1 (13:10):
But how do they make money. They make money when
people walk up to the ballpark, pay their money for
a ticket, and go in. And that is not interstate commerce.
The money doesn't cross states. The money isn't crossing state lines.
Well said, and as a result, the Sherman Antitrust Act
doesn't apply and go away, there is no problem here, Okay.
(13:33):
So that is case number one. Case number two comes
about thirty years later, in the early nineteen fifties, and
this case is actually much more similar to the case
Kurt Flood is thinking about bringing. In this instance, there's
a minor league player, he's like a Triple A player
for the Yankees farm system, and he basically says, I
(13:55):
should have the right to go play for another team.
I'm going to sue baseball.
Speaker 3 (13:58):
And by this point, by the nineteen fifties, the technology
has changed. The game has changed in that you can
listen to it on radio, and that is a big part.
Speaker 1 (14:08):
Of the business.
Speaker 3 (14:08):
No matter where your team goes, you can sit back
in Brooklyn listen to your belove of Dodgers on the radio,
and that's part of you know, a bigger radio contract,
which in theory crosses state lines.
Speaker 1 (14:20):
Yes, yes, and TV also by this point, yeah, and
so yeah, fundamentally, technological change has driven a change to
the business. Right, Like Oliver Wendell Holmes thing was just like,
just look at the money, just follow the money. It's
not inter state commerce. By this time, it obviously is, right.
And there's actually a fun moment in the transition where
(14:41):
in the thirties when radio is first coming in a
baseball teams, like especially in New York City, they they
block radio for a while because they are thinking like, oh,
our business is selling tickets, and if people can just
sit at home and listen on the radio, they're not
going to come buy a ticket. We don't want it
on the road. They're not buying cracker jack. Yeah, that's right.
And so they ultimately realize, of course, like, oh, we
(15:02):
can sell the rights to the game and make a
lot more money and people will still come. So by
the fifties, by the time this case goes to the
Supreme Court, it's clearly a state commerce absolutely. And yet
and yet a majority of the justices in the case
call back to that nineteen twenty two opinion delightfully called
(15:25):
federal baseball in short, and they say, you know, storry
to cease this. We don't want to overturn past Supreme
Court rulings. And if there's a problem here, Congress can
just pass a law that says antitrust law. Oh yeah,
it applies to baseball. And you know what, we're going
to stay out of it. It's fine. The reserve clause
is going to stay in place. So you know, the
(15:46):
player lost the league one, no change.
Speaker 3 (15:49):
And to be fair, I mean, there is something to
the court's decision and the owner's stance here because professional
sports baseball is a different kind of business. Right the
teams are competing on the field against each other, but
they're not really competing against each other economically. Yeah, right there,
they need to collude in fact, right to say like, hey,
(16:11):
should we play it o'clock three o'clock?
Speaker 1 (16:14):
Like where should we play?
Speaker 3 (16:15):
And you could think of the chaos that would happen
if there was true competition economic competition in baseball. I
mean you could you could buy all the other team's players.
You could do it halfway through the games. You could
be like I'm buying, I'm buying your best will chair to.
Speaker 1 (16:30):
Go back to your thing of like how baseball is
different from other businesses, right, Like each team has a
separate owner, so in a way it's its own business.
But if it was a regular business, you would want
to put all the other teams out of business. You'd
want to destroy them, right, and.
Speaker 3 (16:45):
So and the Yankees would, but then they would find
that there's nobody to play against, right, right.
Speaker 1 (16:50):
Or even more narrowly, right, if you just had a
free market in labor, if if the richest owner could
buy all the best players, they would, and then they
would win every game by a blowout, and that would suck, right,
Like a sport where one team wins every game by
a blowout is a bad sport, and nobody wants to
watch it. And so at some level you do need
(17:13):
some check on a free market in labor, in baseball,
or in sports.
Speaker 3 (17:16):
You're telling me America's pastime is anti competitive and anti
free market.
Speaker 1 (17:21):
Yes, yes, yes, all right, Usa, but only to some extent,
right like we know now we know today it is
much more competitive and much more free market than it
was in Kurt Flood's time. And also true of football
and basketball, as we'll talk about, and yet still competitive, right,
so it is a question of balance. And at this time,
(17:42):
as Marvin Miller is explaining to Kurt Flood over breakfast,
the courts have been all on the side of the
leagues and the owners.
Speaker 3 (17:49):
Kurt Flood probably hasn't looked at Supreme Court precedent at
this point. He's just like, it's unfair. It feels unfair. Now,
let's make this happen.
Speaker 1 (17:57):
Yeah, And and Marvin Miller, the union guy, is like,
it's a million to one shot against you. And by
the way, even if you do happen to win your case,
you're not going to get damages. Nobody's gonna be like, oh,
this poor guy who's making you know, the equivalent of
eight hundred thousand dollars for playing baseball. We're gonna give
you more money. So you're not gonna get personal damages.
Speaker 3 (18:17):
And people aren't going to be bidding for you because
you're a troublemaker.
Speaker 1 (18:21):
You are never gonna work in baseball again, not as
a player, not as a coach. Like you're finished if
you do this. And you know, Kurt Flood has been
through a lot at this point, I think it's worth
talking about here. Like, you know, he came up in
the minor leagues in the nineteen fifties, just a few
years after Jackie Robinson became the first black professional baseball player.
(18:44):
When Flood was in the minor leagues, he was playing
in the South mostly, and so you know, he would
have to wait on the bus while his white teammates
went into a restaurant. One time, the trainer of his
own team yelled at him for putting his uniform in
the laundry with the white players, and the trainer actually
like fished it out with a stick and send it
(19:04):
off to the black laundry. Even once Kurt Flood made
the majors, he was a major league baseball player, he
rented a house and when the landlord found out he
was black, he said, you can't rent this house, and
I'm gonna block the door with a shotgun. And Kurt
Flood actually sued that guy for the right to just
live in the house that he had rented as a
major league baseball player.
Speaker 3 (19:25):
So Kurt Flood's seen the civil rights era come not
just in theory, but in his own life in baseball.
He's like lived through all of these changes.
Speaker 1 (19:32):
Yeah, and so Marvin Miller lays all of this out
for Kurt Flood, and Kurt Flood says, okay, but for
all of that, if I do win, will it help
you know, will it help other players? And Marvin Miller says, yeah,
it will. And Kurt Flood says, okay, let's do it.
So they decide to sue Baseball.
Speaker 3 (19:55):
We'll be back in just a minute, and we're back
(20:21):
with the story of Kurt Flood. So how do you
litigate this case? Right, there have been these two precedents
against this concept. Clearly the Supreme Court, of all the
things they have to deal with, does not want to
deal with America's past time.
Speaker 1 (20:34):
Yeah. So, well, the first thing is you find a
good lawyer who goes his way around the Supreme Court.
And the Union finds what seems like a great lawyer
for Flood, a guy named Arthur Goldberg, who had in
fact been a Supreme Court justice. Well, you could just
hire Supreme Court justices. So this part is actually shocking
to me. He had stepped down from the Supreme Court
to be the ambassador to the UN, which, like today,
(20:57):
would never happen. So, like either the Supreme Court was
less of a big deal then, or the un was
more of a big deal or both. I don't know,
but it's weird. I mean, he got to live in
New York City. True, that's how much better in New
York is than DC. So this guy, Arthur Goldberg says
he'll take the case. He just wants the union to
pay his expenses. He believes in it, and he and
(21:17):
Flood decide to start, you know, because precedent is so
clearly stacked against them. They're going to fight the case
in what every reporter loves to call the court of
public opinion. They're going to take the case to the
people to try and, you know, convince America that the
reserve clause is wrong. And so their first move is
(21:38):
to send a letter to the Commissioner of Major League
Baseball one Bui Kun. And it's a public letter. So Robert,
as our designated reader, read us an excerpt from the letter.
Speaker 3 (21:49):
Dear mister Kune, and the millions of people we've published
this too who can also read it. Dear mister Qune,
after twelve years in the major leagues, I do not
feel that I am a piece of property to be
bought and sold irrespective of my wishes, I believe that
any system that produces that result violates my basic rights
as a citizen and is inconsistent with the laws of
(22:10):
the United States and of the several states.
Speaker 1 (22:14):
Well put, yes, and so I mean, I'm just going
to repeat a piece of property to be bought and sold,
right like he's clearly invoking slavery here. So then he
goes on in this letter, right, and he makes his
request act and he says, I want to be free
to talk to other teams about playing for them. And
then can you just read the.
Speaker 3 (22:32):
Last line of the letter, I therefore request that you
make known to all the Major league clubs my feelings
in this matter and advise them of my availability for
the nineteen seventy season. Hire me, pay me money, sincerely
yours that parts me, sincerely yours, Kurt Flood.
Speaker 1 (22:47):
And so the commissioner gets the letter, and a week later,
and what is frankly a classy move, the commissioner calls
Flood at home and reads flood his The Commissioner's response
to Flood's letter, it says, in part, Robert, Dear Kurt,
I certainly agree with you that you, as a human being,
are not a piece of property to be bought and sold.
(23:09):
This is fundamental in our society and I think obvious. However,
I cannot see its applicability to the situation at hand.
You have entered into a current playing contract under the
circumstances and penny me further information from you.
Speaker 3 (23:22):
I don't see what action I can take and cannot
comply with the request contained in the second paragraph of
your letter.
Speaker 1 (23:28):
Sincerely, Yours, Boie Bouie k kewn. So now you have
this public debate, right.
Speaker 3 (23:35):
And he has a good point. You signed a contract.
The reserve clause is in that contract, and you put
it into it.
Speaker 1 (23:42):
Yes, So people are talking about this now. People are
talking about the fact that Kurt Flood is invoking slavery
comparing his status as a professional baseball player. Around this time,
he does an interview with the most famous sportscaster in America,
I think of the second half of the twentieth century.
I would say, Howard Cosell. Really interesting figure in his
own right, And in this interview, Cosell basically says, like
(24:05):
ker Flood, you're getting rich playing baseball, you know, how
can you compare yourself to someone who is enslaved, and
Flood says, a well paid slave is nonetheless a slave.
And this is maybe his most famous quote. The biography,
the sort of key biography of Flood is in fact
(24:25):
called a well paid slave. Mike brad Sneyder is a
very useful source for this show. So now this quote
is out there.
Speaker 3 (24:32):
And this is very provocative at the time, because you know,
I was alive in the seventies and there was a
feeling that in professional sports there was finally a quality
that you know, you could look around and say, yes,
but some of our best athletes, our highest paid people
in the United States are black men, mostly in professional sports,
(24:54):
And there was a kind of I guess, patting yourself
on the back for saying, like, we have overcome a
lot of these things that the civil rights movement had
talked about in professional sports. And here's Kurt Flood saying no, no,
you haven't, and.
Speaker 1 (25:07):
Yeah, and kind of to your point, like, people do
not like this argument that Kurt Flood is making. Like
there's one sort of mocking article that runs in the paper,
onto the headline a tear for Kurt Flood, and it
says one is forced to admire Kurt Flood. When a
man is making only ninety thousand dollars, it's eight hundred
(25:30):
Jason right. When a man is making only ninety thousand dollars,
he is forced to stand up and fight. Boohoo, Yeah,
booho is what the public is saying. So it's not
going well in the court of public opinion. And now
it's time to try the case in the court of law.
Here comes the judge. It's nineteen seventy. The case goes
to trial in Manhattan, and this too, starts off badly
(25:52):
for Kurt Flood. His lawyer is now running for governor,
so probably not putting in the time he should on
the trial. And Kurt Flood personally has been having a
hard time. After he filed the suit, he basically stopped
playing baseball, so he's suddenly gone from being this star
who's you know, on the field all the time, I'm
(26:12):
making lots of money, to being a guy who has
always liked to drink martinis and now has too much
time on his hands. And also he's getting death threats,
like multiple basically racist death threats every day because people
are so angry that he is suing baseball.
Speaker 3 (26:30):
And remember they're not angry because they care about the
interstate commerce class. It's not Sherman and a trust Act
in their death threat. No no, no, no no, Because there's
this whole cultural context. Just to remind everyone, it's nineteen seventy, right,
the US is in the middle of this massive culture war,
which is tied to a real war shooting in Vietnam. Right,
(26:51):
You've got the Black Panthers, the Stonewall riots, the weather
underground is blowing up stuff. You know, people talk about
the division today in America, but like this was a
scary divisive time. People were taking sides, and so Kurt
Flood talking about what is essentially, you know, a worker
compensation issue, becomes one side of the He becomes symbolic
(27:13):
of this bigger split in America.
Speaker 1 (27:15):
Yes, and that is that is made explicit in the
way this is talked about in public. Like there is
this publication, Baseball Digest, that actually had a cover story
about this with the headline Kurt Flood an angry rebel.
Of course, angry black man is like a classic trope, right.
It described him as in revolt against the baseball establishment.
Speaker 3 (27:38):
Baseball establishment. That's like saying you're in revolt against the
United States of America.
Speaker 1 (27:42):
I mean people talked about the establishment at the time,
and so their casting Flood is taking sides in the
culture war, and he knew this. He actually wrote about
this a little bit later and said that the way
he was portrayed was like a victory for him. Would
mean this is the quote God profaned, flag, desecrated motherhood,
defiled apple pie blasphemed, right. So he's like, knows what's
(28:06):
going on. It's kind of having fun with it. He
just doesn't want to go to Philadelphia. He just wants
to be able to work for whatever company will hire him.
So this is what's going on in his life. His
trial is in court. He's having a hard time personally.
He gets called to testify and he's clearly very nervous
on the stand. He's talking in a really low voice.
(28:28):
They keep having to ask him to speak up. And
there is this particular exchange between the judge and Kurt
Flood that I think is really telling. Let's read it.
Do you want to be the judge? Do you want
to be Kurt Flood judge? Of course?
Speaker 3 (28:39):
Okay, Now, mister Flood, I presume you are not finding
this as easy as getting up at bat.
Speaker 1 (28:45):
Is that right? I no, sir, it is not. I
want you to.
Speaker 3 (28:49):
Remember other people have problems, and now you are seeing
that it is not an easy thing to testify.
Speaker 1 (28:56):
Can you imagine that he's basically.
Speaker 3 (28:58):
Saying, like, you are so spoiled, your life is so easy.
You're a rich baseball player. Well guess what like this is?
This is the way the real world is, like, welcome
to it. It's not so easy.
Speaker 1 (29:08):
Yeah, And the judges, you know clearly the establishment. And
I don't to project too much, but I do feel
like here the judge is essentially saying, shut up and
go play baseball, kid.
Speaker 3 (29:19):
It's our game. It's the one place we can go
to not think about Vietnam and protests and politics.
Speaker 1 (29:24):
And you ruined it. And at this moment, what they
can do is try and call some witness who will
sort of play better than Kurt Flood. Right. No current
players want to testify because they're scared, because they can't
choose who to work for, and they don't want to
get you know, shadow band from baseball. But you know
who they get to testify, You know who agrees.
Speaker 3 (29:44):
The man everyone wants to see in New York City
courtroom rights and you know in New York. Yeah, Jackie Robinson, Jackie.
Speaker 1 (29:50):
Robinson, American hero. I actually get like mushy talking about
Jackie Robinson, right, the first black man to play in
the major leagues in the face of like overwhelming racism.
At this point, he's retired, he's fifty one, it's actually
going blind. He agrees to testify, comes into the courtroom
and you know, the same city where he played baseball,
(30:11):
New York City. He takes the stand and Flood's lawyer
asked him about the reserve clause, and Robert read his answer.
Speaker 3 (30:18):
Anything that is one sided in this country is wrong.
And I think the reserve clause is a one sided
thing in favor of the owners, and I think it
certainly should at least be modified to give a player
an opportunity to have some control over his destiny. Very measured,
very measured, very reasonable.
Speaker 1 (30:38):
Right. Oh, it's just why they brought him in. Right.
Speaker 3 (30:41):
They're like, this is not defiling motherhood. This is Jackie Robinson,
and he's just like we should be a little more fair.
Speaker 1 (30:47):
Yes, he is a reasonable man, and he is a
national hero. Right. You know, what's anti American being against
Jackie Robinson even the judge. Even the judge asked Jackie
Robinson for an autograph, says it's for his grandson, is it?
I don't know. And you know, now after this testimony,
people start to listen to the other side, to Kurt
(31:10):
Flood's side, coming from Jackie Robinson, and the coverage gets
better for flood side gets less sarcastic. You know, the
vibes are changing, as we would say today. But the
judge is not in the ViBe's business. He doesn't care
about vibes. He cares about precedent, and in this instance,
the legal precedent is abundantly clear. There was basically, you know,
(31:32):
a nearly identical case twenty years before the Supreme Court
let the reserve clause stand. And so the judge rules
against Kurt Flood and in favor of Major League Baseball.
The reserve clause stands. They appeal, I take it. They
appeal right. Floods lawyer basically knew they were going to lose.
He says, this first case is just the end of
(31:53):
the first inning baseball metaphor. They lose on appeal, They
appeal again, and the case goes to the Supreme Court.
The World Series of courtrooms. No, but also yes, yes.
One fun detail about the case. One of the Supreme
Court justices re accuses himself because he owns stock in
(32:15):
Anheuser Busch, which is run by Gussie Bush and which
owns the Cardinals. I guess there are eight justices there
for oral arguments on March twentieth, nineteen seventy two. The
courtroom is packed, press box is overflowing. People are spilling out,
you know, I guess onto the courthouse steps or whatever.
One person not in attendance Kurt Flood. Kurt Flood. He
(32:38):
is living in MAJORCA, working part time as a sports
announcer for an English language radio station, also working in
a bar part time.
Speaker 3 (32:46):
And this is just a few years after he is
one of the top talents in baseball.
Speaker 1 (32:50):
Yes, yes, and he's drinking a lot, like I think
the core thing is he's drinking too much and the
case has just been overwhelming for him. So he's there.
But you know, we're going to do the trial now,
Oh yay, oh yay. Gather near. It starts with Kirk
Flood's lawyer, Sky Goldberg. He lays out the case. You know,
(33:12):
major League baseball is obviously interstate commerce at this point.
Speaker 3 (33:16):
For the first precedent, we could throw that radio.
Speaker 1 (33:19):
And TV or broadcast nationally. Plainly federal anti trust law
should apply. And under federal and I trust law, the
reserve clause is illegal. And you know, maybe we should
mention this here. There's a fun detail that we haven't
talked about yet, and that is this, Like usually when
we think about competition, we think about monopoly, there's only
one seller of something, but this case is actually monopoly's
(33:45):
lesser known cousin, which.
Speaker 3 (33:50):
Is which means there is only one buyer for a
product and many suppliers. And this is most commonly used
when it comes to the labor market. We don't think
about it, but as workers, we sell our services every day,
and if there's only one employer in an industry or
a region, that person has monopsony power, meaning that they
(34:12):
can keep wages down, they cannot hire you, they can
fire you monopsony power.
Speaker 1 (34:16):
Yes, and that is also covered under the Sherman an
I trust ledge. It's the same problem, just with a
different face. Right, So that is the argument that Goldberg
is making. But sort of surprisingly given that he used
to be a Supreme Court justice, he seems to be
making it very badly. He's kind of off that day.
He actually gets lost on his way to court, the
(34:37):
same court where he used to work. Yeah, they haven't
moved it. They haven't moved it. And he's like kind
of stammering through Kurtflood's stats in his argument, and in fact,
as he's leaving the courtroom he says, it was the
worst argument I've ever made in my life. He spent
too much time at the UB. I guess we're too
much time running for governor. I don't know, I don't know,
(34:59):
but he did badly. Now the lawyers for the league
get up and make their case, and they say, one,
obviously the president is on their side on ambiguous. And
then two, this one is more subtle and i more interesting.
They say, Look, the players have a union, now, a
real union, and in their collective bargaining they agreed to
(35:21):
the reserve clause. So it's a labor issue. This is
not an anti trust issue.
Speaker 3 (35:26):
And that is a strong argument, because it's not like
they are forcing individual players aside a contract. This is
negotiated and that reserve clause, once again is in the
contract that everyone put their name to.
Speaker 1 (35:39):
Yeah, and so if the players don't like it. That's
what collective bargaining is for, you know, make a better
deal when your contract comes up. So the argument ends,
you know, the court goes off, and a few months
later the ruling comes out and the justices, again as
in the previous case, point out that Congress has actually considered,
(36:00):
on many occasions passing a law to make explicit that
anti trust law should apply to baseball, but Congress never
passed any such law right and so at the court
in from this behavior is Congress does not want antitrust
law to apply to baseball.
Speaker 3 (36:19):
It's not in the Constitution. It isn't Baseball's not in
the Constitution. So they think, ah, this is kind of
Congress's world, and maybe they don't care.
Speaker 1 (36:28):
And also I think it is really fair to say
when you look into the sort of details of like
the opinion and the concurring opinion and whatever, they are,
still they are still just on this very Maybe it's weird.
I don't know what kind of vibesy level treating baseball
as something other than a business, right like they actually
(36:50):
one phrase they use is an exception and an anomaly.
Baseball is an exception and anomaly. And an anomaly hard
to say. And there's this line somewhere in there and
it's this and I kind of love it. It kind
of gives away the game. They say, if there is
any inconsistency or illogic in all this, it is an
(37:10):
inconsistency and illogical of long standing that is to be
remedied by the Congress and not by this court.
Speaker 3 (37:17):
Kind of like Walt Whitman, I contain multitudes now, or
like don't blame me, I voted for Congress.
Speaker 1 (37:23):
Right, They are washing their hands of anything having to
do with baseball.
Speaker 3 (37:28):
Yeah, understandable. You don't want to mess up the game.
People care.
Speaker 1 (37:32):
So Kurt Flood loses the reserve clause stays in place.
But the story is not over yet. We'll have the
end of the story in just.
Speaker 4 (37:41):
A bad.
Speaker 1 (38:04):
And we're back. It's the top of the night.
Speaker 3 (38:08):
Great Flood is down steps to the plate.
Speaker 1 (38:11):
It becomes clear that over the sort of arc of
Kurt Flood's case, public opinion has, in fact change. People
have stopped thinking of baseball players as you know, grown
men who are lucky to live every boy's dream, and
have started thinking of them as workers, as people who
(38:32):
have a job right, who.
Speaker 3 (38:33):
Are making more and more money and are switching loyalties
and leaving cities. And there's a kind of like recognition
of what baseball really is.
Speaker 1 (38:43):
Yeah, a business. Right. For example, after the verdict against
Flood comes down from the Supreme Court, the New York
Times rights Roberts oh it at flyball to Robert Smith,
and he catches it.
Speaker 3 (38:59):
The highest court in the land is still averting its
gaze from a system in American business that gives the
employer outright ownership of his employees. They're already kind of
using Kurt Flood's langladeship.
Speaker 1 (39:11):
Outright ownership. That is very much a Kurt Flood language, right,
And in fact, it seems to be popular support. Right. Like,
there's a poll that comes out around this time, and
by a significant margin, people side with Kurt Flood and
the players, and so you know, the players feel this shift.
(39:31):
And around the same time, Miller and the players Union
notice a sort of more technical detail that follows from
the Kurt Flood case, and that is this, Remember, part
of the owner's argument was this is a labor issue,
not an anti trust issue. If the players don't like it,
(39:53):
they can renegotiate and so the union is like, okay, great.
Speaker 3 (39:57):
They pull out the contract, Yeah, iron it out. They
put on their glasses and they see in tiny tiny print.
Speaker 1 (40:04):
Yes, So what it says in tiny tiny print is
if a player gets to the end of his contract
and refuses to sign a new contract, quote, the club
shall have the right to renew the contract for the
period of one year, ah, one year.
Speaker 3 (40:22):
And that's a little bit unclear, right, one year from now.
Can you point to the words one year and say, well,
one year from now, like that is what tomorrow and tomorrow.
Speaker 1 (40:32):
Have always said. They have crept that petty pace. Yes, yes,
the players think, well, maybe it means I cannot sign
and play for one year and then I'm free. I'm free.
And so as part of this kind of vibe shift,
the union has gotten the league to agree to take
disputes to an independent arbiter. Right goes to arbitration. A
(40:55):
few years after the Kurt Flood case, a few players
decide to test this this language to see what does
it really mean, and they refuse to sign, and they
play another year without signing, and at the end of
the year their case goes to arbitration, and the arbitrator
said it says one year the days. Yes, they did it.
(41:16):
They played for a year without a contract. Now they
are free, or as we would say today, free agents.
Let's just pause here, because this is Kurt Flood winning.
This is what he wanted. He knew it wasn't gonna
matter for him, but he wanted to shift the balance
of power, and it seems like his case really was
(41:36):
instrumental in making that happen. So now these players who
challenged the reserve clause and who won an arbitration can
do the thing Kurt Flood wanted to do. Right the
one of these players is a Dodger's pitcher named Andy Messersmith.
He'd been making around one hundred thousand dollars a year
pitching for the Dodgers. The arbitrator says he can go
(41:59):
work for any company, any baseball team that will hire him,
and the Atlanta Braves offer him one million dollars for
three years, so they're immediately more than tripling his salary.
Speaker 3 (42:11):
And every baseball player is like, huh, it's not right,
and I mean the Dodgers at this point, but I'm
just like, you can't do that, and they're like, we
could offer more money to our player and encourage him
to stay.
Speaker 1 (42:26):
And what a normal business does when they want to
keep an employee and they.
Speaker 3 (42:30):
Don't, and he goes to make more money with the Braves,
and all of a sudden, everyone's like, wait a minute,
baseball players are underpaid by definition, because we've just seen
this in the marketplace. Yeah, yeah, finally the free market
speaks and they're worth three times as much.
Speaker 1 (42:47):
And so now it's nineteen seventy six by this point
when this happens, and the overall union contract for the
players is up for renewal. And now in this context,
the players have all the leverage, right, But interestingly interestingly,
they don't want it to be just a total free
(43:08):
for all free market at all times for all players,
in part because of that valid concern that the owners
have always expressed, right, like, it would be bad if
the richest team could buy up all the best players
all the time.
Speaker 3 (43:21):
If it ruins baseball, then it ruins the player's future earnings.
Speaker 1 (43:25):
Yes, the pie gets smaller for everyone, right, Ultimately, they
want a bigger share of.
Speaker 3 (43:29):
A bigger pie, so they can negotiate this. This is
the great thing about free marketing capitalism.
Speaker 1 (43:35):
Yes, yes, and so what they negotiate is this deal
where the team that drafts a player does still have
six years of essentially control over them, so you know,
the sort of draft and farm league, and you know,
picking good players without being still matters. But after the
sixth year, players can go free agent. Similar things are
(43:57):
happening in basketball and football. There are cases that the
players win in both of those sports that makes it
easier for them to go free agent, although in the
NFL it stays pretty hard for players to go free
agent for a while, and they all well end up
coming up with various ways to manage this sort of
(44:17):
regulated competition problem. Like you know, you have a salary caps,
you have a luxury tax, various various ways so that
the richest owner can't just buy up all the talent.
And it works, right. Sports stay competitive, they stay popular.
In fact, obviously they get more and more popular, more
and more lucrative, and you know the bottom line is,
(44:39):
of course there's tons more money in sports today. But
the key question for this case goes back to that
division you were talking about at the beginning, right, labor
versus capital. How much goes to the players versus the owners?
And when current flood brought his case about twenty five
percent of team revenue went to players about a quarter.
(45:01):
Today it's about half. So like the percentage going to
players has double.
Speaker 3 (45:07):
And I'm sure if you listen to AM sports radio
they debate this all that's I mean, there are probably
people who say, like they're putting in all the work,
they should get one hundred percent of whatever, But that's
it doesn't matter because that's the negotiation. That is what
a strong worker and a strong workers union can negotiate
with strong management. And it happens in every industry where
(45:28):
this sort of has to get worked through.
Speaker 1 (45:30):
Yeah, I mean it is the case. I feel like
people do still love to complain about players being overpaid, right,
that same thing that Gussie Bush was talking about in
the locker room in nineteen sixty nine still feels true today.
Speaker 3 (45:44):
Sure they have one bad game and you're like, we'll
playing him ten million dollars.
Speaker 1 (45:49):
Yes, to play baseball to suck. And so I do
still think there is that vestigial thing of like they're
playing a game, it's it's wrong to pay them so much,
but like it's a business, and like if you think
they're overpaid, like maybe there's a business case, like, are
(46:10):
the Dodgers losing money by paying Sho heeo Tani seventy
million dollars a year asterisk mostly deferred. And I think
these days, with the number of ways people are getting
extraordinarily rich, Shoeotani looks pretty good as someone who is
maybe the best of his generation.
Speaker 3 (46:27):
Yeah, provides so much joy, so good at what he does.
Speaker 1 (46:30):
Yeah, let him have the money. Yeah, Yeah, I mean
I certainly feel that way. And you know, today, maybe
the most kind of relevant contemporary version of this dynamic
that played out in the Kurt Flood story is college athletes. Right.
The NCAA, which was in fact amateur sports, the players
were in fact student athletes for a long time, and
(46:52):
then more and more money started pouring into college football
and basketball in particular people you know, millions, tens of
millions of people watch it on TV, huge amounts of money.
And it got weird because like, the coaches were making
millions of dollars.
Speaker 3 (47:06):
Tons of money, They're building these giant new buildings. The
college was bringing in a ton in donation and said
from viewership and all this stuff.
Speaker 1 (47:14):
And the players got a scholarship. Yeah, and they were
the amateurs and it just became ridiculous. And in fact,
you know, initially there was this rule that players could
sell their name, image and likeness, right that developed a
while ago. They could basically do endorsement deals, is what
that meant. And it was only just this year twenty
twenty five that a judge approved an agreement in an
(47:36):
antitrust case, a Monopsony case fundamentally that said now colleges
can pay athletes. Just now that is happening, and that
is the same story.
Speaker 3 (47:46):
And we're even seeing this beyond sports. Non compete clauses,
which used to be in some industries that said, oh,
you can leave my television station, but you can't go
be an anchor at the competing a.
Speaker 1 (47:58):
Kind of like a reserve clause. And people agreed to them.
Speaker 3 (48:01):
And people agreed to them they wrote in the contract.
And now some states are saying like no, like that's
that is a restraint of trade of the person who
decides to take their talents elsewhere. And so you know,
this thing that Kurt Flood did can't affect all of
us who are workers, because it gives everyone just a
slight advantage. I think in talking about you know, what
(48:27):
are the fundamental rights you have as a supplier of labor.
Speaker 1 (48:31):
So the last thing we should talk about is what
happened to Kurt Flood. You know, the last we heard
from him, it was the early seventies and he was
working at a bar in Majorca and drinking a lot.
He eventually ran out of money, but his family helped
him out. He got sober, he moved back to the
(48:52):
US and ultimately became recognized for what he had done.
His last big public moment came in nineteen ninety four.
The players union had gone on strike. It was a
long strike, it was dragging out. They had canceled the
World Series. So you know, people again were complaining about, oh,
these baseball players, Oh they have such a hard life,
(49:13):
how can they demand more money. It's like the ghost
of Gussie Bush, you know, whispering in America's ear or whatever.
And the players themselves are starting to doubt what they're doing,
starting to think, you know, maybe we should just go
back to work. But like, the owners had actually been
accused at this time of colluding to suppress pay for
(49:35):
free agents, right, Like it's a serious thing. It really
does feel like they're trying to drag baseball backwards. And
so some of the players who want to keep fighting,
keep the strike going, actually call Kurt Flood in to
come and talk in person to a room full of players,
to basically give him a pep talk. And so Kurt
(49:56):
Flood comes in and he says, you know, stand your ground.
It says, I thought so that you could be doing
this today. He actually has this line that he says,
don't let the owners put the genie back in the bottle.
And when he finish, the players stood up and applauded. Nice.
Speaker 3 (50:18):
Oh, Pushkin just called, You've been traded to a Philadelphia
true crime podcast.
Speaker 1 (50:23):
Sorry, buddy, not going. I'm not going. Let's take it
to court. We'll write a public letter, sternly wooded letter.
Speaker 3 (50:33):
Our producer is Gabriel Hunter Chang, our engineer is Sarah Bruguier,
and our showrunner is Ryan Dilly. I'm Jacob Goldstein, and
I'm Robert Smith. We'll be back next week with another
episode of Business.
Speaker 1 (50:44):
History, a show about the history wait for it, of
business Robert Smith. As you know, there is nowhere in
Pushkin's office to make a video to make a video podcast,
which is unfortunate.
Speaker 3 (50:59):
We tried and it was described as two gray men
in a gray.
Speaker 1 (51:02):
Box, and reasonably so, fortunately for us. In an amazing coincidence,
literally down the hall from Pushkin's office, there is the
showroom of a company called Buzzy Space. This is a
company is where we're sitting right now, and what they
do is they design furniture and acoustic solutions that make
I'm reading here workplace is more comfortable, more creative, and
(51:23):
more fun.
Speaker 3 (51:25):
I would even say cozy. Their furniture is like sort
of curved and interesting colors, and I guess keeps things quiet.
Speaker 1 (51:34):
Yes, honestly, I wish our office was this showroom. You
can find more at Buzzy dot space. That's buzz I
dot Space.
Pushkin too quick.
Speaker 2 (00:19):
No, it's perfect push kid, stop you got it.
Speaker 1 (00:37):
Robert Smith, here we are again.
Speaker 3 (00:40):
Why do you do that narrative thing, you know where
you start with like a date and right in the
middle of the story, the date is nineteen sixty eight.
Speaker 1 (00:47):
Good one subject is baseball, specifically the Saint Louis Cardinals,
and nineteen sixty eight was a good year for the
Saint Louis Cardinals. They went all the way to the
World Series, lost in seven games to the Tigers. And
for nineteen sixty nine, for the next season, they were
looking good. Their big stars were coming back. Crucially for
our story. One of those returning stars was Kurt Flood.
(01:08):
Sports Illustrated said he was the best center fielder in baseball.
He was an All Star. He was the co captain
of the team. So things were looking good for the
Cardinals going into that year. But the president of the
team one Augustus Anheuser Busch Junior. There was actually an
Anheuser Busch. I love that, yes, and an Augustus Adheuser
(01:29):
Busch Junior Yes, aka Gussie Bush aka aired to the
Budweiser Fortune. He was the president of the team and
he was worried. He did not like the way things
were going. He ran out Anheuser Busch, and he had
convinced the company back in the fifties to buy the Cardinals,
and he built the Cardinals into this World Series champion
(01:49):
in the sixties. So now we're in the late sixties,
he's getting worried. He actually goes down to spring training,
down to Florida at the start of the sixty nine
season to tell the players what he thought was wrong,
what he thought they were doing wrong.
Speaker 3 (02:02):
They love that, They love it.
Speaker 1 (02:03):
When he comes to test him. Oh, thank you, Gussie Bush.
And interestingly, it wasn't their play that he was worried about.
It wasn't what they were doing on the field. It
was what they and their union had been doing off
the field in the off season, and specifically, they'd been
negotiating for a higher share of baseball's TV revenues, and
(02:26):
Gussie Bush, businessman, did not like the way this looked.
So he gave this talk. He actually invited the press
in to hear him give this sort of lecture to
the players, and the next day was on the front
page of the Saint Louis Post Dispatch. Robert when don't
you give us Gussie Bush's key quote?
Speaker 3 (02:45):
All right? He said, too many fans are saying our
players are getting fat, that they only think of money
unless of the game itself. Oh, those businessmen always go
back to the love of the game. That's why we
say you so little the love of the game.
Speaker 1 (02:59):
Yes, so you know, the players at the time didn't
say much. They actually asked Kurt Flood in this newspaper
story for a comment. He's like, the big Boss has spoken,
I'm not going to comment. But he wrote a book
a few years later and said, unsurprisingly that he didn't
like this speech. He said, in particular that Gussie Bush
was talking to the players like a rabble of ingrates.
(03:22):
And at this moment this rift was opening up between
Kurt Flood, one of the key stars on the team,
and Gussie Busch, the owner of the team, And over
the course of the sixty nine season, the rift gets wider.
And then at four am on October eighth of that year,
Kurt Flood gets a phone call, gets woken up by
(03:43):
a phone call, and he rolls over and picks up
the phone and calling him is a guy who works
for Gussie Bush. Gussie didn't even make the call in
se Gussy didn't even make the call himself. No, it
was one of his underlings. It was a middle manager basically.
And what the guy on the phone says to Kurt
Flood is after twelve years playing in Saint Louis, basically
all of his adult life, Flood is getting traded to
(04:05):
the Philadelphia Phillies. Philly is the punishment. Philly is the punishment. Yeah,
And it really did seem like that to Kurt Flood, because,
I mean a Philly had just finished second to last
in their division. And on top of that, Kurt Flood
was black, and the Phillies fans had a tradition of
treating the team's own black players really badly. Like one
(04:25):
one star outfielder in the sixties for the Phillies who
was black, actually started wearing a helmet because the Phillies
owned fans threw stuff at him so much.
Speaker 3 (04:34):
Right, so he doesn't want to be with the losers
who also hate him.
Speaker 1 (04:38):
Yes, well said, but the way baseball worked at the time,
he didn't have a choice because the rule was when
you got drafted by a major league team, you played
for that team forever or until they decided to trade you,
and if you didn't want to go, you could quit baseball.
(04:58):
This was actually explicit in every player's contract. They called
it the reserve clause because the teams reserved the rights
to each player. And Flood actually, when he was writing
later about the Gussie Bush speech in the Locker Room,
he used the word feudal feudal to describe this system,
like eudl not utili. Yeah. Yeah.
Speaker 3 (05:21):
In other words, it was like the system where peasants
were tied to the land. They could not move, they
had to give part of their crops to the feudal lord.
Speaker 1 (05:31):
Yes, right, And in this metaphor, the feudal lord is
Gussie Bush, and the players are tied not to like
a potato field, but to a baseball field. Right. Of course,
it seems much more appealing to be a professional baseball
player than a medieval surf But on a fundamental level,
Kurt Flood thought this was unfair, unjust.
Speaker 3 (05:49):
There's a reason for this and a reason why it
existed for years, which is people thought that it kept
the game competitive. It kept the richest teams from just
buying the best players and then winning all the games.
Speaker 1 (06:00):
That's no fun. Yes, yes, right, if you had just
a wide open free market, it might in fact destroy
the game. But still, but still, Kurt Flood thought that
the essence of this rule, this idea that you had
to be tied forever to the whims of whatever team
happened to draft you, was unfair, and that surely there
(06:20):
would be a more fair way to structure the game.
And so he decided to fight. He decided to try
and change the rules. His fight wound up going all
the way to the Supreme Court. It helped change the
business of professional sports forever, and it also, at least
for a while, destroyed Kurt Flood's life.
Speaker 3 (06:39):
I'm Jacob Wilts, I'm Robert Smith, and this is Business History,
a show about the history of business. I love the
story of Kurt Flood and the reserve clause because it's
about more than sports. It is about this classic division
between capital and labor, the money interests and the workers.
(07:00):
Every business has this dilemma of who should share in
the profits, and this goes to every single corporation in America,
this decision about who shares in the riches. Right, So
this is a story about that. It's about antitrust, it's
about competition, and it's a story about when people stop
thinking of this professional sports as just a game and
(07:23):
more as what it is, big business, really big business.
Speaker 1 (07:27):
Okay, So nineteen sixty nine, that's the moment we're talking about, right,
that's the season that started with that lecture from Gussie Bush.
In that season, Kurt Flood was one of the highest
paid players in baseball. He made ninety thousand dollars. Robert Smith,
how much is that in twenty twenty five dollars?
Speaker 3 (07:44):
Two billion dollars? Yes, two billion, No a courteous man. Ever, Yes,
According to.
Speaker 1 (07:49):
The Bureau of Labor Statistics CPI inflation calculator, which I love,
it was eight hundred and nineteen thousand dollars, So about
eight hundred thousand dollars.
Speaker 3 (07:59):
Pretty good, So a lot of money compared to other workers,
but not what professional baseball players, especially very good ones,
are making today.
Speaker 1 (08:06):
Exactly right, So is it a lot of a little well,
by today's standards, it's trivial, right, A star would make
really whatever, I don't know what twenty times that today?
Something right? And so there's a couple reasons for that.
Why is his pace so much lower than what contemporary
players make? Reason one is Major League Baseball is just
a much bigger business today after adjusting translation, the pie
(08:28):
is bigger. But reason two is the players at the
time had much less leverage. Right, if you have to
play for the team that drafted you or quit baseball,
there's not that much you can do to demand a
higher salary, right, So players were in fact getting a
smaller share of a smaller pie.
Speaker 3 (08:48):
Which, if you think about it, is wild. Like think
about any other industry, tech, Google and Apple. I mean,
imagine they could sign the greatest computer science majors at
Stanford and MIT and sign them to a contract forever.
Like I'm sorry, you're on team Apple. You are on
team Apple. I can trade you to team IBM, but no,
(09:10):
you're on team Apple. And that situation, they are certainly
not going to pay them a lot of money. They'll
pay him some money, but like you don't have why.
Speaker 1 (09:18):
Wouldn't they pay their market rate when they don't have to? Yeah,
when they could keep them forever.
Speaker 3 (09:22):
And obviously if Apple did this it would be illegal
and interact Apple did do it.
Speaker 1 (09:27):
Of about ten years ago or something, there was this
major scandal there a few big tech companies had this rule.
Among each other like CEO to CEO, where they wouldn't
try and recruit each other's employees. And when it was
made public, they got in trouble. They had to pay
hundreds of millions of dollars because it's a violation of
anti trust. Low. You can't do anti competitive Yeah, but
(09:50):
in baseball in nineteen sixty nine, that was how it works.
That's what the reserve clause was. And Kurt Flood thought
that was ridiculous, right. He thought he was a worker,
just like any other worker, should be able to go
work for any company that would hire him. And so
when he heard that he was going to be traded
to the Phillies, he thought, maybe I should just sue.
(10:12):
Maybe it is illegal, right, maybe I should go go
to court and fight the reserve clause. To figure out
whether he should do this, he flies to New York
City to talk about this idea of suing baseball with
the guy who is the head of the players union.
This is an interesting guy. His name's Marvin Miller. Grew
up in Flatbush in Brooklyn, rooting for the Dodgers. Yeah,
(10:33):
Ebbittsfield was in the steel Workers Union, worked his way
up there and just in the past few years, just
in the nineteen sixties, has turned the players Association into
like a full fledged labor union, like a real union.
And so Miller is actually part of what Gussie Bush
was talking about in that lecture. In fact, one of
his employees, one of the other senior guys at the team,
(10:54):
in that same locker room speech, complained about Miller by name, right,
So he's part of what's going on here. So Miller
takes Flood out to breakfast in New York at the
Summit Hotel in Manhattan, and over breakfast he lays out
the legal landscape because he's been thinking about this too,
and there is precedent here. In fact, there have been
(11:15):
two earlier cases that are relevant that have gone all
the way to the Supreme Court.
Speaker 3 (11:20):
And the cases were brought under the Sherman Antitrust Act
of eighteen ninety, the classic right, this is the key
law for regulating competition in America. And this law banned
I'll rate it every contract, combination, or conspiracy that restricted
trade or commerce.
Speaker 1 (11:36):
Among the several states. And so that last phrase there
among the several states.
Speaker 3 (11:41):
This is because of the Constitution says the federal government
can only regulate interstate commerce. Right, so if there's any
sort of business that goes across state lines, the Sherman
Anti Trust Act says you cannot collude.
Speaker 1 (11:55):
Yes, And I'm belaboring that phrase and that interstate commercation
because it actually turns out to be key here. The
first relevant case got to the Supreme Court in nineteen
twenty two. And what had happened at the time interesting
business story. Actually, there were two different professional baseball leagues
sort of competing against each other at the time. There's
(12:16):
Major League Baseball, which we know today, and then there
was also the Federal Baseball League. That's funny to say,
Federal Baseball League. So and what happened was classic monopoly play. Actually,
the Major League Baseball owners were buying up Federal Baseball
League teams to sort of bring them into the Major League.
(12:38):
So they were essentially using buyouts to eliminate their competition.
Sounds anti competitive, classic thing you're not supposed to do.
And so this case goes all the way to the
Supreme Court, and in fact Oliver Wendell Holmes, one of
the most famous justices I would say ever, right, writes
the decision and what he says is The business of
(13:01):
baseball is selling tickets to the game.
Speaker 3 (13:04):
Right, teams may travel from state to state. The entire
league comprises several states.
Speaker 1 (13:10):
But how do they make money. They make money when
people walk up to the ballpark, pay their money for
a ticket, and go in. And that is not interstate commerce.
The money doesn't cross states. The money isn't crossing state lines.
Well said, and as a result, the Sherman Antitrust Act
doesn't apply and go away, there is no problem here, Okay.
(13:33):
So that is case number one. Case number two comes
about thirty years later, in the early nineteen fifties, and
this case is actually much more similar to the case
Kurt Flood is thinking about bringing. In this instance, there's
a minor league player, he's like a Triple A player
for the Yankees farm system, and he basically says, I
(13:55):
should have the right to go play for another team.
I'm going to sue baseball.
Speaker 3 (13:58):
And by this point, by the nineteen fifties, the technology
has changed. The game has changed in that you can
listen to it on radio, and that is a big part.
Speaker 1 (14:08):
Of the business.
Speaker 3 (14:08):
No matter where your team goes, you can sit back
in Brooklyn listen to your belove of Dodgers on the radio,
and that's part of you know, a bigger radio contract,
which in theory crosses state lines.
Speaker 1 (14:20):
Yes, yes, and TV also by this point, yeah, and
so yeah, fundamentally, technological change has driven a change to
the business. Right, Like Oliver Wendell Holmes thing was just like,
just look at the money, just follow the money. It's
not inter state commerce. By this time, it obviously is, right.
And there's actually a fun moment in the transition where
(14:41):
in the thirties when radio is first coming in a
baseball teams, like especially in New York City, they they
block radio for a while because they are thinking like, oh,
our business is selling tickets, and if people can just
sit at home and listen on the radio, they're not
going to come buy a ticket. We don't want it
on the road. They're not buying cracker jack. Yeah, that's right.
And so they ultimately realize, of course, like, oh, we
(15:02):
can sell the rights to the game and make a
lot more money and people will still come. So by
the fifties, by the time this case goes to the
Supreme Court, it's clearly a state commerce absolutely. And yet
and yet a majority of the justices in the case
call back to that nineteen twenty two opinion delightfully called
(15:25):
federal baseball in short, and they say, you know, storry
to cease this. We don't want to overturn past Supreme
Court rulings. And if there's a problem here, Congress can
just pass a law that says antitrust law. Oh yeah,
it applies to baseball. And you know what, we're going
to stay out of it. It's fine. The reserve clause
is going to stay in place. So you know, the
(15:46):
player lost the league one, no change.
Speaker 3 (15:49):
And to be fair, I mean, there is something to
the court's decision and the owner's stance here because professional
sports baseball is a different kind of business. Right the
teams are competing on the field against each other, but
they're not really competing against each other economically. Yeah, right there,
they need to collude in fact, right to say like, hey,
(16:11):
should we play it o'clock three o'clock?
Speaker 1 (16:14):
Like where should we play?
Speaker 3 (16:15):
And you could think of the chaos that would happen
if there was true competition economic competition in baseball. I
mean you could you could buy all the other team's players.
You could do it halfway through the games. You could
be like I'm buying, I'm buying your best will chair to.
Speaker 1 (16:30):
Go back to your thing of like how baseball is
different from other businesses, right, Like each team has a
separate owner, so in a way it's its own business.
But if it was a regular business, you would want
to put all the other teams out of business. You'd
want to destroy them, right, and.
Speaker 3 (16:45):
So and the Yankees would, but then they would find
that there's nobody to play against, right, right.
Speaker 1 (16:50):
Or even more narrowly, right, if you just had a
free market in labor, if if the richest owner could
buy all the best players, they would, and then they
would win every game by a blowout, and that would suck, right,
Like a sport where one team wins every game by
a blowout is a bad sport, and nobody wants to
watch it. And so at some level you do need
(17:13):
some check on a free market in labor, in baseball,
or in sports.
Speaker 3 (17:16):
You're telling me America's pastime is anti competitive and anti
free market.
Speaker 1 (17:21):
Yes, yes, yes, all right, Usa, but only to some extent,
right like we know now we know today it is
much more competitive and much more free market than it
was in Kurt Flood's time. And also true of football
and basketball, as we'll talk about, and yet still competitive, right,
so it is a question of balance. And at this time,
(17:42):
as Marvin Miller is explaining to Kurt Flood over breakfast,
the courts have been all on the side of the
leagues and the owners.
Speaker 3 (17:49):
Kurt Flood probably hasn't looked at Supreme Court precedent at
this point. He's just like, it's unfair. It feels unfair. Now,
let's make this happen.
Speaker 1 (17:57):
Yeah, And and Marvin Miller, the union guy, is like,
it's a million to one shot against you. And by
the way, even if you do happen to win your case,
you're not going to get damages. Nobody's gonna be like, oh,
this poor guy who's making you know, the equivalent of
eight hundred thousand dollars for playing baseball. We're gonna give
you more money. So you're not gonna get personal damages.
Speaker 3 (18:17):
And people aren't going to be bidding for you because
you're a troublemaker.
Speaker 1 (18:21):
You are never gonna work in baseball again, not as
a player, not as a coach. Like you're finished if
you do this. And you know, Kurt Flood has been
through a lot at this point, I think it's worth
talking about here. Like, you know, he came up in
the minor leagues in the nineteen fifties, just a few
years after Jackie Robinson became the first black professional baseball player.
(18:44):
When Flood was in the minor leagues, he was playing
in the South mostly, and so you know, he would
have to wait on the bus while his white teammates
went into a restaurant. One time, the trainer of his
own team yelled at him for putting his uniform in
the laundry with the white players, and the trainer actually
like fished it out with a stick and send it
(19:04):
off to the black laundry. Even once Kurt Flood made
the majors, he was a major league baseball player, he
rented a house and when the landlord found out he
was black, he said, you can't rent this house, and
I'm gonna block the door with a shotgun. And Kurt
Flood actually sued that guy for the right to just
live in the house that he had rented as a
major league baseball player.
Speaker 3 (19:25):
So Kurt Flood's seen the civil rights era come not
just in theory, but in his own life in baseball.
He's like lived through all of these changes.
Speaker 1 (19:32):
Yeah, and so Marvin Miller lays all of this out
for Kurt Flood, and Kurt Flood says, okay, but for
all of that, if I do win, will it help
you know, will it help other players? And Marvin Miller says, yeah,
it will. And Kurt Flood says, okay, let's do it.
So they decide to sue Baseball.
Speaker 3 (19:55):
We'll be back in just a minute, and we're back
(20:21):
with the story of Kurt Flood. So how do you
litigate this case? Right, there have been these two precedents
against this concept. Clearly the Supreme Court, of all the
things they have to deal with, does not want to
deal with America's past time.
Speaker 1 (20:34):
Yeah. So, well, the first thing is you find a
good lawyer who goes his way around the Supreme Court.
And the Union finds what seems like a great lawyer
for Flood, a guy named Arthur Goldberg, who had in
fact been a Supreme Court justice. Well, you could just
hire Supreme Court justices. So this part is actually shocking
to me. He had stepped down from the Supreme Court
to be the ambassador to the UN, which, like today,
(20:57):
would never happen. So, like either the Supreme Court was
less of a big deal then, or the un was
more of a big deal or both. I don't know,
but it's weird. I mean, he got to live in
New York City. True, that's how much better in New
York is than DC. So this guy, Arthur Goldberg says
he'll take the case. He just wants the union to
pay his expenses. He believes in it, and he and
(21:17):
Flood decide to start, you know, because precedent is so
clearly stacked against them. They're going to fight the case
in what every reporter loves to call the court of
public opinion. They're going to take the case to the
people to try and, you know, convince America that the
reserve clause is wrong. And so their first move is
(21:38):
to send a letter to the Commissioner of Major League
Baseball one Bui Kun. And it's a public letter. So Robert,
as our designated reader, read us an excerpt from the letter.
Speaker 3 (21:49):
Dear mister Kune, and the millions of people we've published
this too who can also read it. Dear mister Qune,
after twelve years in the major leagues, I do not
feel that I am a piece of property to be
bought and sold irrespective of my wishes, I believe that
any system that produces that result violates my basic rights
as a citizen and is inconsistent with the laws of
(22:10):
the United States and of the several states.
Speaker 1 (22:14):
Well put, yes, and so I mean, I'm just going
to repeat a piece of property to be bought and sold,
right like he's clearly invoking slavery here. So then he
goes on in this letter, right, and he makes his
request act and he says, I want to be free
to talk to other teams about playing for them. And
then can you just read the.
Speaker 3 (22:32):
Last line of the letter, I therefore request that you
make known to all the Major league clubs my feelings
in this matter and advise them of my availability for
the nineteen seventy season. Hire me, pay me money, sincerely
yours that parts me, sincerely yours, Kurt Flood.
Speaker 1 (22:47):
And so the commissioner gets the letter, and a week later,
and what is frankly a classy move, the commissioner calls
Flood at home and reads flood his The Commissioner's response
to Flood's letter, it says, in part, Robert, Dear Kurt,
I certainly agree with you that you, as a human being,
are not a piece of property to be bought and sold.
(23:09):
This is fundamental in our society and I think obvious. However,
I cannot see its applicability to the situation at hand.
You have entered into a current playing contract under the
circumstances and penny me further information from you.
Speaker 3 (23:22):
I don't see what action I can take and cannot
comply with the request contained in the second paragraph of
your letter.
Speaker 1 (23:28):
Sincerely, Yours, Boie Bouie k kewn. So now you have
this public debate, right.
Speaker 3 (23:35):
And he has a good point. You signed a contract.
The reserve clause is in that contract, and you put
it into it.
Speaker 1 (23:42):
Yes, So people are talking about this now. People are
talking about the fact that Kurt Flood is invoking slavery
comparing his status as a professional baseball player. Around this time,
he does an interview with the most famous sportscaster in America,
I think of the second half of the twentieth century.
I would say, Howard Cosell. Really interesting figure in his
own right, And in this interview, Cosell basically says, like
(24:05):
ker Flood, you're getting rich playing baseball, you know, how
can you compare yourself to someone who is enslaved, and
Flood says, a well paid slave is nonetheless a slave.
And this is maybe his most famous quote. The biography,
the sort of key biography of Flood is in fact
(24:25):
called a well paid slave. Mike brad Sneyder is a
very useful source for this show. So now this quote
is out there.
Speaker 3 (24:32):
And this is very provocative at the time, because you know,
I was alive in the seventies and there was a
feeling that in professional sports there was finally a quality
that you know, you could look around and say, yes,
but some of our best athletes, our highest paid people
in the United States are black men, mostly in professional sports,
(24:54):
And there was a kind of I guess, patting yourself
on the back for saying, like, we have overcome a
lot of these things that the civil rights movement had
talked about in professional sports. And here's Kurt Flood saying no, no,
you haven't, and.
Speaker 1 (25:07):
Yeah, and kind of to your point, like, people do
not like this argument that Kurt Flood is making. Like
there's one sort of mocking article that runs in the paper,
onto the headline a tear for Kurt Flood, and it
says one is forced to admire Kurt Flood. When a
man is making only ninety thousand dollars, it's eight hundred
(25:30):
Jason right. When a man is making only ninety thousand dollars,
he is forced to stand up and fight. Boohoo, Yeah,
booho is what the public is saying. So it's not
going well in the court of public opinion. And now
it's time to try the case in the court of law.
Here comes the judge. It's nineteen seventy. The case goes
to trial in Manhattan, and this too, starts off badly
(25:52):
for Kurt Flood. His lawyer is now running for governor,
so probably not putting in the time he should on
the trial. And Kurt Flood personally has been having a
hard time. After he filed the suit, he basically stopped
playing baseball, so he's suddenly gone from being this star
who's you know, on the field all the time, I'm
(26:12):
making lots of money, to being a guy who has
always liked to drink martinis and now has too much
time on his hands. And also he's getting death threats,
like multiple basically racist death threats every day because people
are so angry that he is suing baseball.
Speaker 3 (26:30):
And remember they're not angry because they care about the
interstate commerce class. It's not Sherman and a trust Act
in their death threat. No no, no, no no, Because there's
this whole cultural context. Just to remind everyone, it's nineteen seventy, right,
the US is in the middle of this massive culture war,
which is tied to a real war shooting in Vietnam. Right,
(26:51):
You've got the Black Panthers, the Stonewall riots, the weather
underground is blowing up stuff. You know, people talk about
the division today in America, but like this was a
scary divisive time. People were taking sides, and so Kurt
Flood talking about what is essentially, you know, a worker
compensation issue, becomes one side of the He becomes symbolic
(27:13):
of this bigger split in America.
Speaker 1 (27:15):
Yes, and that is that is made explicit in the
way this is talked about in public. Like there is
this publication, Baseball Digest, that actually had a cover story
about this with the headline Kurt Flood an angry rebel.
Of course, angry black man is like a classic trope, right.
It described him as in revolt against the baseball establishment.
Speaker 3 (27:38):
Baseball establishment. That's like saying you're in revolt against the
United States of America.
Speaker 1 (27:42):
I mean people talked about the establishment at the time,
and so their casting Flood is taking sides in the
culture war, and he knew this. He actually wrote about
this a little bit later and said that the way
he was portrayed was like a victory for him. Would
mean this is the quote God profaned, flag, desecrated motherhood,
defiled apple pie blasphemed, right. So he's like, knows what's
(28:06):
going on. It's kind of having fun with it. He
just doesn't want to go to Philadelphia. He just wants
to be able to work for whatever company will hire him.
So this is what's going on in his life. His
trial is in court. He's having a hard time personally.
He gets called to testify and he's clearly very nervous
on the stand. He's talking in a really low voice.
(28:28):
They keep having to ask him to speak up. And
there is this particular exchange between the judge and Kurt
Flood that I think is really telling. Let's read it.
Do you want to be the judge? Do you want
to be Kurt Flood judge? Of course?
Speaker 3 (28:39):
Okay, Now, mister Flood, I presume you are not finding
this as easy as getting up at bat.
Speaker 1 (28:45):
Is that right? I no, sir, it is not. I
want you to.
Speaker 3 (28:49):
Remember other people have problems, and now you are seeing
that it is not an easy thing to testify.
Speaker 1 (28:56):
Can you imagine that he's basically.
Speaker 3 (28:58):
Saying, like, you are so spoiled, your life is so easy.
You're a rich baseball player. Well guess what like this is?
This is the way the real world is, like, welcome
to it. It's not so easy.
Speaker 1 (29:08):
Yeah, And the judges, you know clearly the establishment. And
I don't to project too much, but I do feel
like here the judge is essentially saying, shut up and
go play baseball, kid.
Speaker 3 (29:19):
It's our game. It's the one place we can go
to not think about Vietnam and protests and politics.
Speaker 1 (29:24):
And you ruined it. And at this moment, what they
can do is try and call some witness who will
sort of play better than Kurt Flood. Right. No current
players want to testify because they're scared, because they can't
choose who to work for, and they don't want to
get you know, shadow band from baseball. But you know
who they get to testify, You know who agrees.
Speaker 3 (29:44):
The man everyone wants to see in New York City
courtroom rights and you know in New York. Yeah, Jackie Robinson, Jackie.
Speaker 1 (29:50):
Robinson, American hero. I actually get like mushy talking about
Jackie Robinson, right, the first black man to play in
the major leagues in the face of like overwhelming racism.
At this point, he's retired, he's fifty one, it's actually
going blind. He agrees to testify, comes into the courtroom
and you know, the same city where he played baseball,
(30:11):
New York City. He takes the stand and Flood's lawyer
asked him about the reserve clause, and Robert read his answer.
Speaker 3 (30:18):
Anything that is one sided in this country is wrong.
And I think the reserve clause is a one sided
thing in favor of the owners, and I think it
certainly should at least be modified to give a player
an opportunity to have some control over his destiny. Very measured,
very measured, very reasonable.
Speaker 1 (30:38):
Right. Oh, it's just why they brought him in. Right.
Speaker 3 (30:41):
They're like, this is not defiling motherhood. This is Jackie Robinson,
and he's just like we should be a little more fair.
Speaker 1 (30:47):
Yes, he is a reasonable man, and he is a
national hero. Right. You know, what's anti American being against
Jackie Robinson even the judge. Even the judge asked Jackie
Robinson for an autograph, says it's for his grandson, is it?
I don't know. And you know, now after this testimony,
people start to listen to the other side, to Kurt
(31:10):
Flood's side, coming from Jackie Robinson, and the coverage gets
better for flood side gets less sarcastic. You know, the
vibes are changing, as we would say today. But the
judge is not in the ViBe's business. He doesn't care
about vibes. He cares about precedent, and in this instance,
the legal precedent is abundantly clear. There was basically, you know,
(31:32):
a nearly identical case twenty years before the Supreme Court
let the reserve clause stand. And so the judge rules
against Kurt Flood and in favor of Major League Baseball.
The reserve clause stands. They appeal, I take it. They
appeal right. Floods lawyer basically knew they were going to lose.
He says, this first case is just the end of
(31:53):
the first inning baseball metaphor. They lose on appeal, They
appeal again, and the case goes to the Supreme Court.
The World Series of courtrooms. No, but also yes, yes.
One fun detail about the case. One of the Supreme
Court justices re accuses himself because he owns stock in
(32:15):
Anheuser Busch, which is run by Gussie Bush and which
owns the Cardinals. I guess there are eight justices there
for oral arguments on March twentieth, nineteen seventy two. The
courtroom is packed, press box is overflowing. People are spilling out,
you know, I guess onto the courthouse steps or whatever.
One person not in attendance Kurt Flood. Kurt Flood. He
(32:38):
is living in MAJORCA, working part time as a sports
announcer for an English language radio station, also working in
a bar part time.
Speaker 3 (32:46):
And this is just a few years after he is
one of the top talents in baseball.
Speaker 1 (32:50):
Yes, yes, and he's drinking a lot, like I think
the core thing is he's drinking too much and the
case has just been overwhelming for him. So he's there.
But you know, we're going to do the trial now,
Oh yay, oh yay. Gather near. It starts with Kirk
Flood's lawyer, Sky Goldberg. He lays out the case. You know,
(33:12):
major League baseball is obviously interstate commerce at this point.
Speaker 3 (33:16):
For the first precedent, we could throw that radio.
Speaker 1 (33:19):
And TV or broadcast nationally. Plainly federal anti trust law
should apply. And under federal and I trust law, the
reserve clause is illegal. And you know, maybe we should
mention this here. There's a fun detail that we haven't
talked about yet, and that is this, Like usually when
we think about competition, we think about monopoly, there's only
one seller of something, but this case is actually monopoly's
(33:45):
lesser known cousin, which.
Speaker 3 (33:50):
Is which means there is only one buyer for a
product and many suppliers. And this is most commonly used
when it comes to the labor market. We don't think
about it, but as workers, we sell our services every day,
and if there's only one employer in an industry or
a region, that person has monopsony power, meaning that they
(34:12):
can keep wages down, they cannot hire you, they can
fire you monopsony power.
Speaker 1 (34:16):
Yes, and that is also covered under the Sherman an
I trust ledge. It's the same problem, just with a
different face. Right, So that is the argument that Goldberg
is making. But sort of surprisingly given that he used
to be a Supreme Court justice, he seems to be
making it very badly. He's kind of off that day.
He actually gets lost on his way to court, the
(34:37):
same court where he used to work. Yeah, they haven't
moved it. They haven't moved it. And he's like kind
of stammering through Kurtflood's stats in his argument, and in fact,
as he's leaving the courtroom he says, it was the
worst argument I've ever made in my life. He spent
too much time at the UB. I guess we're too
much time running for governor. I don't know, I don't know,
(34:59):
but he did badly. Now the lawyers for the league
get up and make their case, and they say, one,
obviously the president is on their side on ambiguous. And
then two, this one is more subtle and i more interesting.
They say, Look, the players have a union, now, a
real union, and in their collective bargaining they agreed to
(35:21):
the reserve clause. So it's a labor issue. This is
not an anti trust issue.
Speaker 3 (35:26):
And that is a strong argument, because it's not like
they are forcing individual players aside a contract. This is
negotiated and that reserve clause, once again is in the
contract that everyone put their name to.
Speaker 1 (35:39):
Yeah, and so if the players don't like it. That's
what collective bargaining is for, you know, make a better
deal when your contract comes up. So the argument ends,
you know, the court goes off, and a few months
later the ruling comes out and the justices, again as
in the previous case, point out that Congress has actually considered,
(36:00):
on many occasions passing a law to make explicit that
anti trust law should apply to baseball, but Congress never
passed any such law right and so at the court
in from this behavior is Congress does not want antitrust
law to apply to baseball.
Speaker 3 (36:19):
It's not in the Constitution. It isn't Baseball's not in
the Constitution. So they think, ah, this is kind of
Congress's world, and maybe they don't care.
Speaker 1 (36:28):
And also I think it is really fair to say
when you look into the sort of details of like
the opinion and the concurring opinion and whatever, they are,
still they are still just on this very Maybe it's weird.
I don't know what kind of vibesy level treating baseball
as something other than a business, right like they actually
(36:50):
one phrase they use is an exception and an anomaly.
Baseball is an exception and anomaly. And an anomaly hard
to say. And there's this line somewhere in there and
it's this and I kind of love it. It kind
of gives away the game. They say, if there is
any inconsistency or illogic in all this, it is an
(37:10):
inconsistency and illogical of long standing that is to be
remedied by the Congress and not by this court.
Speaker 3 (37:17):
Kind of like Walt Whitman, I contain multitudes now, or
like don't blame me, I voted for Congress.
Speaker 1 (37:23):
Right, They are washing their hands of anything having to
do with baseball.
Speaker 3 (37:28):
Yeah, understandable. You don't want to mess up the game.
People care.
Speaker 1 (37:32):
So Kurt Flood loses the reserve clause stays in place.
But the story is not over yet. We'll have the
end of the story in just.
Speaker 4 (37:41):
A bad.
Speaker 1 (38:04):
And we're back. It's the top of the night.
Speaker 3 (38:08):
Great Flood is down steps to the plate.
Speaker 1 (38:11):
It becomes clear that over the sort of arc of
Kurt Flood's case, public opinion has, in fact change. People
have stopped thinking of baseball players as you know, grown
men who are lucky to live every boy's dream, and
have started thinking of them as workers, as people who
(38:32):
have a job right, who.
Speaker 3 (38:33):
Are making more and more money and are switching loyalties
and leaving cities. And there's a kind of like recognition
of what baseball really is.
Speaker 1 (38:43):
Yeah, a business. Right. For example, after the verdict against
Flood comes down from the Supreme Court, the New York
Times rights Roberts oh it at flyball to Robert Smith,
and he catches it.
Speaker 3 (38:59):
The highest court in the land is still averting its
gaze from a system in American business that gives the
employer outright ownership of his employees. They're already kind of
using Kurt Flood's langladeship.
Speaker 1 (39:11):
Outright ownership. That is very much a Kurt Flood language, right,
And in fact, it seems to be popular support. Right. Like,
there's a poll that comes out around this time, and
by a significant margin, people side with Kurt Flood and
the players, and so you know, the players feel this shift.
(39:31):
And around the same time, Miller and the players Union
notice a sort of more technical detail that follows from
the Kurt Flood case, and that is this, Remember, part
of the owner's argument was this is a labor issue,
not an anti trust issue. If the players don't like it,
(39:53):
they can renegotiate and so the union is like, okay, great.
Speaker 3 (39:57):
They pull out the contract, Yeah, iron it out. They
put on their glasses and they see in tiny tiny print.
Speaker 1 (40:04):
Yes, So what it says in tiny tiny print is
if a player gets to the end of his contract
and refuses to sign a new contract, quote, the club
shall have the right to renew the contract for the
period of one year, ah, one year.
Speaker 3 (40:22):
And that's a little bit unclear, right, one year from now.
Can you point to the words one year and say, well,
one year from now, like that is what tomorrow and tomorrow.
Speaker 1 (40:32):
Have always said. They have crept that petty pace. Yes, yes,
the players think, well, maybe it means I cannot sign
and play for one year and then I'm free. I'm free.
And so as part of this kind of vibe shift,
the union has gotten the league to agree to take
disputes to an independent arbiter. Right goes to arbitration. A
(40:55):
few years after the Kurt Flood case, a few players
decide to test this this language to see what does
it really mean, and they refuse to sign, and they
play another year without signing, and at the end of
the year their case goes to arbitration, and the arbitrator
said it says one year the days. Yes, they did it.
(41:16):
They played for a year without a contract. Now they
are free, or as we would say today, free agents.
Let's just pause here, because this is Kurt Flood winning.
This is what he wanted. He knew it wasn't gonna
matter for him, but he wanted to shift the balance
of power, and it seems like his case really was
(41:36):
instrumental in making that happen. So now these players who
challenged the reserve clause and who won an arbitration can
do the thing Kurt Flood wanted to do. Right the
one of these players is a Dodger's pitcher named Andy Messersmith.
He'd been making around one hundred thousand dollars a year
pitching for the Dodgers. The arbitrator says he can go
(41:59):
work for any company, any baseball team that will hire him,
and the Atlanta Braves offer him one million dollars for
three years, so they're immediately more than tripling his salary.
Speaker 3 (42:11):
And every baseball player is like, huh, it's not right,
and I mean the Dodgers at this point, but I'm
just like, you can't do that, and they're like, we
could offer more money to our player and encourage him
to stay.
Speaker 1 (42:26):
And what a normal business does when they want to
keep an employee and they.
Speaker 3 (42:30):
Don't, and he goes to make more money with the Braves,
and all of a sudden, everyone's like, wait a minute,
baseball players are underpaid by definition, because we've just seen
this in the marketplace. Yeah, yeah, finally the free market
speaks and they're worth three times as much.
Speaker 1 (42:47):
And so now it's nineteen seventy six by this point
when this happens, and the overall union contract for the
players is up for renewal. And now in this context,
the players have all the leverage, right, But interestingly interestingly,
they don't want it to be just a total free
(43:08):
for all free market at all times for all players,
in part because of that valid concern that the owners
have always expressed, right, like, it would be bad if
the richest team could buy up all the best players
all the time.
Speaker 3 (43:21):
If it ruins baseball, then it ruins the player's future earnings.
Speaker 1 (43:25):
Yes, the pie gets smaller for everyone, right, Ultimately, they
want a bigger share of.
Speaker 3 (43:29):
A bigger pie, so they can negotiate this. This is
the great thing about free marketing capitalism.
Speaker 1 (43:35):
Yes, yes, and so what they negotiate is this deal
where the team that drafts a player does still have
six years of essentially control over them, so you know,
the sort of draft and farm league, and you know,
picking good players without being still matters. But after the
sixth year, players can go free agent. Similar things are
(43:57):
happening in basketball and football. There are cases that the
players win in both of those sports that makes it
easier for them to go free agent, although in the
NFL it stays pretty hard for players to go free
agent for a while, and they all well end up
coming up with various ways to manage this sort of
(44:17):
regulated competition problem. Like you know, you have a salary caps,
you have a luxury tax, various various ways so that
the richest owner can't just buy up all the talent.
And it works, right. Sports stay competitive, they stay popular.
In fact, obviously they get more and more popular, more
and more lucrative, and you know the bottom line is,
(44:39):
of course there's tons more money in sports today. But
the key question for this case goes back to that
division you were talking about at the beginning, right, labor
versus capital. How much goes to the players versus the owners?
And when current flood brought his case about twenty five
percent of team revenue went to players about a quarter.
(45:01):
Today it's about half. So like the percentage going to
players has double.
Speaker 3 (45:07):
And I'm sure if you listen to AM sports radio
they debate this all that's I mean, there are probably
people who say, like they're putting in all the work,
they should get one hundred percent of whatever, But that's
it doesn't matter because that's the negotiation. That is what
a strong worker and a strong workers union can negotiate
with strong management. And it happens in every industry where
(45:28):
this sort of has to get worked through.
Speaker 1 (45:30):
Yeah, I mean it is the case. I feel like
people do still love to complain about players being overpaid, right,
that same thing that Gussie Bush was talking about in
the locker room in nineteen sixty nine still feels true today.
Speaker 3 (45:44):
Sure they have one bad game and you're like, we'll
playing him ten million dollars.
Speaker 1 (45:49):
Yes, to play baseball to suck. And so I do
still think there is that vestigial thing of like they're
playing a game, it's it's wrong to pay them so much,
but like it's a business, and like if you think
they're overpaid, like maybe there's a business case, like, are
(46:10):
the Dodgers losing money by paying Sho heeo Tani seventy
million dollars a year asterisk mostly deferred. And I think
these days, with the number of ways people are getting
extraordinarily rich, Shoeotani looks pretty good as someone who is
maybe the best of his generation.
Speaker 3 (46:27):
Yeah, provides so much joy, so good at what he does.
Speaker 1 (46:30):
Yeah, let him have the money. Yeah, Yeah, I mean
I certainly feel that way. And you know, today, maybe
the most kind of relevant contemporary version of this dynamic
that played out in the Kurt Flood story is college athletes. Right.
The NCAA, which was in fact amateur sports, the players
were in fact student athletes for a long time, and
(46:52):
then more and more money started pouring into college football
and basketball in particular people you know, millions, tens of
millions of people watch it on TV, huge amounts of money.
And it got weird because like, the coaches were making
millions of dollars.
Speaker 3 (47:06):
Tons of money, They're building these giant new buildings. The
college was bringing in a ton in donation and said
from viewership and all this stuff.
Speaker 1 (47:14):
And the players got a scholarship. Yeah, and they were
the amateurs and it just became ridiculous. And in fact,
you know, initially there was this rule that players could
sell their name, image and likeness, right that developed a
while ago. They could basically do endorsement deals, is what
that meant. And it was only just this year twenty
twenty five that a judge approved an agreement in an
(47:36):
antitrust case, a Monopsony case fundamentally that said now colleges
can pay athletes. Just now that is happening, and that
is the same story.
Speaker 3 (47:46):
And we're even seeing this beyond sports. Non compete clauses,
which used to be in some industries that said, oh,
you can leave my television station, but you can't go
be an anchor at the competing a.
Speaker 1 (47:58):
Kind of like a reserve clause. And people agreed to them.
Speaker 3 (48:01):
And people agreed to them they wrote in the contract.
And now some states are saying like no, like that's
that is a restraint of trade of the person who
decides to take their talents elsewhere. And so you know,
this thing that Kurt Flood did can't affect all of
us who are workers, because it gives everyone just a
slight advantage. I think in talking about you know, what
(48:27):
are the fundamental rights you have as a supplier of labor.
Speaker 1 (48:31):
So the last thing we should talk about is what
happened to Kurt Flood. You know, the last we heard
from him, it was the early seventies and he was
working at a bar in Majorca and drinking a lot.
He eventually ran out of money, but his family helped
him out. He got sober, he moved back to the
(48:52):
US and ultimately became recognized for what he had done.
His last big public moment came in nineteen ninety four.
The players union had gone on strike. It was a
long strike, it was dragging out. They had canceled the
World Series. So you know, people again were complaining about, oh,
these baseball players, Oh they have such a hard life,
(49:13):
how can they demand more money. It's like the ghost
of Gussie Bush, you know, whispering in America's ear or whatever.
And the players themselves are starting to doubt what they're doing,
starting to think, you know, maybe we should just go
back to work. But like, the owners had actually been
accused at this time of colluding to suppress pay for
(49:35):
free agents, right, Like it's a serious thing. It really
does feel like they're trying to drag baseball backwards. And
so some of the players who want to keep fighting,
keep the strike going, actually call Kurt Flood in to
come and talk in person to a room full of players,
to basically give him a pep talk. And so Kurt
(49:56):
Flood comes in and he says, you know, stand your ground.
It says, I thought so that you could be doing
this today. He actually has this line that he says,
don't let the owners put the genie back in the bottle.
And when he finish, the players stood up and applauded. Nice.
Speaker 3 (50:18):
Oh, Pushkin just called, You've been traded to a Philadelphia
true crime podcast.
Speaker 1 (50:23):
Sorry, buddy, not going. I'm not going. Let's take it
to court. We'll write a public letter, sternly wooded letter.
Speaker 3 (50:33):
Our producer is Gabriel Hunter Chang, our engineer is Sarah Bruguier,
and our showrunner is Ryan Dilly. I'm Jacob Goldstein, and
I'm Robert Smith. We'll be back next week with another
episode of Business.
Speaker 1 (50:44):
History, a show about the history wait for it, of
business Robert Smith. As you know, there is nowhere in
Pushkin's office to make a video to make a video podcast,
which is unfortunate.
Speaker 3 (50:59):
We tried and it was described as two gray men
in a gray.
Speaker 1 (51:02):
Box, and reasonably so, fortunately for us. In an amazing coincidence,
literally down the hall from Pushkin's office, there is the
showroom of a company called Buzzy Space. This is a
company is where we're sitting right now, and what they
do is they design furniture and acoustic solutions that make
I'm reading here workplace is more comfortable, more creative, and
(51:23):
more fun.
Speaker 3 (51:25):
I would even say cozy. Their furniture is like sort
of curved and interesting colors, and I guess keeps things quiet.
Speaker 1 (51:34):
Yes, honestly, I wish our office was this showroom. You
can find more at Buzzy dot space. That's buzz I
dot Space.
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