A Well-Paid Slave (23 page)

On March 19, Goldberg made it official: He was running for governor. He had allowed the New York politicians to seduce him into believing that he would be handed the Democratic gubernatorial nomination and easily defeat Rockefeller in November. His ego and ambition once again clouded sound personal judgment. He had also broken his promise to his friend Marvin Miller about not running for office.

Miller called Goldberg on March 19 and 20 from Sarasota, Florida. Miller was on his annual tour of spring training camps updating players about the labor negotiations, Flood's lawsuit, and other union matters. He did not have the heart to criticize Goldberg for sacrificing his commitment to Flood's case. Nor would it have done any good. He wanted to discuss the legal team's next move.

Goldberg still planned on taking an active role in Flood's lawsuit but turned over the day-to-day management of the case to his partner, Jay Topkis. Topkis had played a major role in Goldberg's other important cases. When Coffin hired Goldberg to appeal his draft conspiracy conviction, Goldberg told him: “Topkis will do all the work. He's as good as I am.”

At this stage in their legal careers, Topkis was better. He was an anti-trust expert, one of the firm's best brief writers, and quick on his feet. Feared by associates and respected by opposing counsel, he was one of the few partners who called Goldberg “Arthur.” Goldberg's decision to run for governor delighted Topkis. It meant that he would get to try the bulk of Flood's case without Goldberg looking over his shoulder.

For Topkis, Flood's case was personal. As a Yale law student in 1949, he wrote an essay for Professor Fred Rodell's expository legal writing class about the
Gardella
case. Rodell sent Topkis's essay to Red Smith, who liked it so much that he ran part of it as one of his columns in the
New York Herald Tribune
. For Topkis, who had grown up in New York City reading Smith in the
Herald Tribune
, it was a dream come true. Rodell also recommended Topkis for a postgraduate clerkship with the most outspoken voice in
Gardella
, Judge Jerome Frank. While clerking for Frank, Topkis arranged a lunch with Smith and the judge. Topkis also turned his essay into an article for the
Yale Law Journal
, titled “Monopoly in Professional Sports,” which called for an end to baseball's anti-trust exemption. Flood's case gave Topkis the chance to vindicate his judge's
Gardella
opinion, his literary idol's columns, and his own belief that Justice Holmes had gotten it wrong in
Federal Baseball
.

Before handing over the reins to Topkis, Goldberg won a critical victory. At a March 24 closed hearing in his chambers, Cooper announced to lawyers from both sides that he was inclined to grant an early trial. Goldberg said all the right things to make it happen, reminding Cooper what was at stake. “It is of great importance to the industry and of great importance to this man,” Goldberg said. “The season is starting April 6th. He is not playing ball.” Goldberg agreed not to file written responses to any of the owners' motions and not to slow the process by disputing any of the case's essential facts. “We are ready to go to trial,” Goldberg said. “We will take one day. I might as well tell you that. Or perhaps part of a day. We do not intend to encumber this record with non-essential matters.”

The owners' lawyers, led by Lou Carroll and Paul Porter, said anything to avoid any trial at all, much less an early one. Carroll said the Phillies wanted to speak with Flood about joining their team.

“Mr. Flood will not play for Philadelphia, whether I advised him or not,” Goldberg replied. He gave the Phillies permission to contact Flood. “But I can tell you what his answer will be: His answer will be no.”

Paul Porter added: “Because speaking for the Commissioner, and I think everybody in baseball, they would like to have this boy back in baseball where he belongs.”

Goldberg corrected Porter's insulting characterization of the 32-year-old Flood: “Flood is a mature man. He knows his mind. He made it up before he came to see me. I interrogated him at length as to the consequences and difficulties about litigation, possible duration, all of these I went through. He is not uninformed. I saw to it that he was informed in this issue. He knows precisely what he is doing and the evidence of that will be apparent when this proposal is renewed. He submitted another offer, which was to play in St. Louis without prejudice.”

Carroll reminded Cooper that preparing for a trial was not as simple for the owners as it was for Flood. After a brief off-the-record discussion, the lawyers agreed to reconvene at Cooper's chambers on March 31 to discuss potential trial dates.

Cooper's decision to have an early trial was astounding. He agreed that there was no dispute about the facts of Flood's case and therefore skipped almost all of the pretrial fact-finding process known as discovery. In a modern civil action, discovery could take weeks, months, or even years. Cooper, however, saw no need for the production of a massive collection of documents. Nor did he allow the pretrial interrogation of potential witnesses known as depositions. One reason may have been that document productions and depositions take place largely outside the purview of the judge. Cooper was determined to remain at center stage.

A week later in Cooper's chambers, the owners argued that Cooper had no choice but to dismiss the case because of baseball's antitrust immunity per
Toolson
. Mark Hughes pressed Cooper to rule on the motion to dismiss Flood's lawsuit. Cooper refused to decide the motion, because that way he could ensure that the case would go to trial. If he granted the motion, the case would be dismissed. If he denied the motion, he probably would have been reversed on appeal because of
Federal Baseball
and
Toolson
.

The question returned not to if there would be a trial, but when. The owners wanted to push it back to September. But, realizing that Cooper would not go along with that, they argued for no sooner than early June. They predicted that the defendants' case could take two weeks. Paul Porter wondered, if Flood was not willing to play this season, “what the rush is on this.” Lou Carroll put it even more harshly: “Mr. Flood has waited fourteen years to assert a principle, which, if accepted, would destroy a structure that has existed for over a hundred years.”

Goldberg wanted to begin the trial immediately. “The rush is a simple rush,” he said. “The rights of an individual are at stake. With due respect, the rights of that individual are as important to me as the rights of twenty-four club owners. . . . Our posture is simple: It is an illegal transfer. He will not submit to illegality. He has a right to take that posture. He may have to pay a heavy price for it. I think he is being made to pay a heavy price by protracted litigation.”

As he so often did in these pretrial conferences, Goldberg injected his personal experiences on the Supreme Court and as a candidate for governor into the discussion. In doing so, he reiterated his commitment to litigating Flood's case: “I was told by my political managers that I ought to be in Grossinger's, shaking hands with adversaries. I am not there. I represent a client, and that takes priority over everything, and I have an engagement with a Judge. They will have to get along without me, whatever the consequences are. Now, we want an early trial, and by an early trial we mean an early trial.”

The next day at Grossinger's, a Catskills resort, Goldberg won the State Democratic Committee's designation for governor—but not without incident. Representative Shirley Chisholm (D-NY) organized a walkout of some delegates and attacked Goldberg as a candidate of the party bosses. After he won, Goldberg renounced the party's endorsement to fend off Chisholm's charges of backroom party politics and instead chose to get on the ballot by obtaining the requisite number of signatures. The crowd booed and hissed at him as he made the announcement.

Goldberg had fared far better the previous day in front of Judge Cooper. Cooper set Flood's trial for May 18. At Hughes's request, Cooper later pushed the start of the trial back a day.

Cooper's decision ignored a fundamental rule—only the Supreme Court could reverse its own decisions. He was bound by
Federal Baseball
and
Toolson
, which compelled him to dismiss Flood's lawsuit because of baseball's antitrust exemption. If this were a case about widgets, any federal judge in America would have granted the owners' motion to dismiss. But it was not about widgets; it was about baseball. And this was not just any federal judge; it was Irving Ben Cooper.

At best, Cooper ignored two controlling Supreme Court precedents because he wanted to give the court of appeals and the Supreme Court a complete factual record about the reserve clause's legality. At worst, he wanted to preside over a case about baseball and to show the world that he was a competent federal judge. During pretrial hearings, Cooper sought to dispell such notions. “I think it would be dead wrong if this judge or any judge sought in this trial the publicity angle,” he said on March 31.

Bowie Kuhn was working behind the scenes to avoid a trial. As the commissioner and protector of the integrity of the game, he saw Flood's lawsuit casting a pall over the 1970 season. Kuhn had already struck out once that spring in an attempt to protect the game's integrity. Detroit Tigers pitcher Denny McLain, winner of the American League's last two Cy Young Awards, had lost $5,700 investing in a Flint, Michigan, bookmaking operation. After two meetings with McLain, Kuhn suspended the ace pitcher until July 1. He contended that McLain had been duped into the investment and had not shared in the profits. The light sentence showed how beholden Kuhn was to the owners (in this case the owner of the Detroit Tigers). Kuhn seemed to take challenges to the reserve clause more seriously than he did gambling. Pete Axthelm of
Newsweek
called McLain's suspension a “farce.” “The ‘Alice in Wonderland' quality of the ruling,” Axthelm wrote, “only becomes stranger when contrasted with the case of Flood, who must sacrifice his $90,000 salary entirely in order to test the legality of a clause in his contract.”

Kuhn wanted Flood back in uniform. He thought he could work the same magic he had worked with the retirement threats of Donn Clendenon and Ken Harrelson. The key was getting Flood to meet with him.

The commissioner sent his special assistant, Monte Irvin, as an emissary. An infielder with the Newark Eagles in the Negro National League and an outfielder with the New York Giants, Irvin was a northern-bred, college-educated World War II veteran. His background and ability had placed him high on Branch Rickey's list of candidates to integrate the game. Unlike Jackie Robinson, however, Irvin was a company man, not a boat rocker. After their playing careers, Irvin and Robinson clashed at a banquet honoring Montclair, New Jersey, high school baseball star Earl Williams. “I don't owe baseball anything,” Robinson told the audience, “and baseball doesn't owe me anything.” Irvin took the microphone and tried to smooth things over. “Jackie was great for baseball,” Irvin said, “and baseball was great for Jackie.” The incident cooled relations between the two men. Irvin's service in the commissioner's office aided his 1973 induction into the Baseball Hall of Fame.

It was Irvin's job to get Flood to meet with Kuhn. Irvin called Flood's St. Louis apartment several times in mid- to late March. The first time he told Marian that Kuhn wanted to arrange a private meeting with Flood. Two days later, Irvin called again and spoke directly with Flood. The commissioner offered to fly Flood out to Los Angeles, where the Dodgers were holding a March 28 benefit game for the King Center, a memorial to Martin Luther King in Atlanta, for a private meeting. The commissioner wanted to talk with Flood and to listen to his concerns. Irvin promised that there would be no publicity.

“Damnit, Monte, the last guy who saw the Commissioner for an informal chat wound up getting a boot in the ass,” Flood said, alluding to McLain.

“He'd have been in more trouble if he hadn't come in,” Irvin replied, which Flood interpreted as a “threat.”

Flood declined Irvin's offer.

“Listen, Curt, at least you can meet with the commissioner of base-ball,” Irvin said.

“I don't have anything to say to him,” Flood replied.

“I think you're making a mistake, Curt,” Irvin said. “A lot of good can come from this. . . . Maybe after your career you can get a job in the commissioner's office.”

Flood wasn't buying it.

Irvin was “disgusted.” He thought he had established a rapport with Flood after meeting him through Bill White. Irvin acknowledged that arranging a meeting between Flood and Kuhn would have been “a feather in my cap.” But most important, Irvin could not understand why Flood did not have enough respect for the commissioner to at least meet with him. “I thought he made a terrible mistake in not meeting with him. I lost my respect for him,” Irvin recalled. “I didn't understand how he could be so stupid.”

Still, Irvin would not give up. He called Flood's apartment again and spoke with Marian. Irvin, like most people, assumed that Flood “was in love with that secretary.” He told her this was Flood's last chance to meet the commissioner in Los Angeles. She questioned Kuhn's motives.

“The commissioner has worked out a deal,” Irvin said. “Curt can play for any National League club of his choice without jeopardizing the litigation.”

“Oh, come on, Monte!” Marian replied. “You know the commissioner can't change the rules of the Federal judiciary. If Curt plays ball, his case becomes moot. Now tell me what the Commissioner really wants.”

“He's a very compassionate man,” Irvin said. “He just wants everybody to be happy.”