History of Labor Struggles in MLB: The Fight for Free Agency

photo: Curt Flood

The Cardinal Nation’s series highlighting the history of labor struggles in MLB continues with the spark that ignited Curt Flood’s challenge of the reserve clause. Author Marilyn Green is a retired attorney with background in employment law. (free)



In both the 1967 and 1968 seasons, the St. Louis Cardinals went to the World Series and won the title in 1967. Given his team’s success, one would think owner Gussie Busch entered 1969 in good spirits. That assumption would be incorrect, however.

Gussie Busch

Unhappy over the previous season’s dealings with the union that led to the first collective bargaining agreement, Busch decided to address his players prior to the start of the season. In March 1969, in a rather condescending and dictatorial speech, Busch essentially castigated his players for backing a union leadership that he felt was not sufficiently respectful to management.

Many of the players did not take well the words of their owner. Included in this group was their star center fielder Curt Flood. The 1969 season became a disappointment to all – to Busch, the players and the fans – as the Cardinals followed their two pennant winning seasons with a fourth-place finish in their six team division.

Following the end of the 1969 season, Flood was informed that he had been traded to the Phillies. Flood was not happy about the trade for sure but more importantly he was angered by how he was informed. Rather than getting the word from Busch or at the very least General Manager Bing Devine, news of his trade was communicated to Flood by a low-level Cardinal employee. Enraged by the insult and not wanting to play for the Philadelphia Phillies, a city and an organization with a reputation at the time for poor treatment of African Americans, Flood contacted MLBPA Executive Director Marvin Miller in November.

Curt Flood

Flood told Miller that after much thought and consultation with an attorney he had decided not to report to the Phillies and to launch a challenge in federal court to the reserve clause. Flood sought Miller’s advice on the matter. In addition, Flood sounded Miller out on the possibility of union financial backing for his suit.

During an in-person meeting with Flood and his attorney, Miller advised the player of the difficulties he would face in taking on the reserve clause. Among them was the sheer length of time it would take for the suit to make its way through the courts and that Flood would potentially get very little if any damages should he win the suit. Miller told Flood, he would essentially be sacrificing his playing career and possibly any other future in baseball. At the completion of the meeting, Miller advised Flood to rethink the matter over the next couple of weeks before making a final decision.

Flood got back to Miller in early December with his decision to pursue the suit. Miller requested Flood come back to New York to meet with him a second time for a final conversation. At the end of the meeting, Miller agreed to back Flood in the lawsuit. However, Miller needed the agreement of the union executive board. Flood appeared before the executive board at their winter meetings in Puerto Rico and laid out his case. The board, after grilling Flood and obtaining assurances from Miller that Flood would reimburse the union if Flood won damages in the suit, the board voted to back the legal challenge. As part of the agreement, Flood consented to allow the union to choose his legal representation.

Marvin Miller

Miller and the executive board chose as Flood’s legal counsel Arthur J. Goldberg, once a colleague of Miller’s at the Steelworker’s Union and a former Associate Justice of the U.S. Supreme Court. The first order of business was to inform commissioner Bowie Kuhn of Flood’s intention not to report to the Phillies and to request Kuhn declare him a free agent to sign with any team of his choosing. The letter was sent to Kuhn on Christmas Eve. Kuhn ‘s reply over a week later made clear that the league was not going to comply with Flood’s demands.

In mid-January 1970, Flood filed suit in Federal District Court in New York requesting an injunction against the trade to Philadelphia and asking for damages in the amount of $1,000,000. Arguments were heard in the Federal District Court, Southern District of New York in late February. A preliminary injunction to allow Flood to play in 1970 was denied and the case was scheduled for trial.

During this same period, negotiations were underway for the second Basic Agreement. The looming legal proceedings were something of a hindrance to a timely resolution of the negotiations. It wasn’t until May 1970, shortly before Flood’s case went to trial, that an agreement was announced. The principals to the three-year agreement, retroactive to January 1, 1970, were Kuhn, John Gaherin, AL President Joe Cronin, and NL President Chub Feeney for the owners. The union was represented by Miller, legal counsel Moss, and players Jack Aker, Maury Wills, Joe Torre, Milt Pappas, Sam McDowell, and Willie Mays. The agreement’s expiration date was December 31, 1972.

The Agreement contained the following provisions:

  • An increase in the minimum salary to $12,000 for 1970, $12,750 for 1971, and $13,500 for 1972.
  • No change to the reserve clause. The issue was tabled until the resolution of the Flood case.
  • Grievance procedure is modified to allow for an impartial arbitrator for issues that do not involve the integrity of the game. The commissioner remained the final arbiter of issues involving the integrity of the game or public confidence in the game.
  • Salary cut remains at 20% but modified to prohibit no more than a 30% cut over two years.
  • An expansion of the types of players entitled to severance pay. Players released during spring training entitled to 30 days’ severance, players released after opening day to receive 60 days’ pay, and players released after May 15 to get full salary.
  • Owners grant players right to agent representation in contract negotiations.
  • Tender deadline to offer contracts set at January 15.
  • Owners increase by $250,000 the pool of money for postseason player shares.
  • Changes to baseball operational rules require prior consent by the union.
  • Increase in spring training stipend and meal money.
  • Start time for “getaway games” changed to 5 pm from 6 pm.

The agreement was ratified on May 23, 1970.

Prior to the ratification of the Basic Agreement, the trial in Flood’s case began. It lasted 13 weeks. Witnesses on Flood’s behalf included Hank Greenberg and Jackie Robinson. The trial did not go well for Flood, as the judge’s bias against him was evident throughout. On August 12, Judge Ben Cooper ruled against Flood.

Flood’s legal team filed an appeal to the U.S. Court of Appeals for the Second Circuit. In October 1970, the Washington Senators offered Flood a contract to play in 1971. Flood signed the contract, but his skills had so eroded during the time off that he played in only 13 games before he left the Senators and the country, traveling to Majorca, Spain where he awaited the final outcome of the litigation.

Arthur J. Goldberg

In April 1971, the Second Circuit ruled against Flood citing both Federal Baseball Club and Toolson. In the fall of 1971, Miller was informed by Goldberg that the U.S. Supreme Court had agreed to hear the case. Arguments before the court were held in October 1971.

While the Flood litigation continued on its course, the current pension agreement was set to expire on March 31, 1972. The MLBPA proposed an increase in the owners contribution to the pension and health care plan to adjust for inflation and cost of living. While the request was relatively modest, the owners decided to take a hard line stance, resentful of what they considered to be the union’s slow encroachment into the running of their businesses.

In late March, the players voted to strike, initiating the first strike in Major League baseball history. The walkout from spring training began on April 1, 1972. The strike lasted 13 days, and as a result 86 games were canceled. The owners were influenced by a federal mediator to increase their contribution to $5.95 million, a $500,000 increase per year. The canceled games were not rescheduled.

On June 18, 1972, in a 5-3 opinion in Flood vs. Kuhn 407 U.S 258 (1972), the U.S. Supreme Court ruled that while the antitrust exemption for baseball as established by Federal Baseball Club and Toolson was an “anomaly’ and that baseball was interstate commerce for purposes of the Sherman Act, the Court must rule against Flood on the basis of adherence to the doctrine of stare decisis (precedent). The Court determined that the exemption could only be corrected by Congress.

While the ruling kept the reserve clause intact for the time being, and Flood was left without a remedy, the Court’s holding that baseball was interstate commerce would leave the door wide open for the eventual end to the reserve clause. That end would not come from Congress, however.

It was the agreement by the owners in the 1970 Basic Agreement to an independent arbitrator for player grievances that signaled the end for the reserve clause. That agreement would likely not have happened but for the Flood litigation. The end came just a mere three years later.

Meanwhile, the shortened 1972 season would play out as negotiations began on another Basic Agreement.

To be continued…

Prior articles in this series

History of Labor Struggles in Major League Baseball: The Early Years

History of Labor Struggles in MLB: The Rise of the AL and Road to Antitrust Exemption

History of Labor Struggles in MLB: The Supreme Court and Baseball’s Antitrust Exemption

History of Labor Struggles in MLB: Post World War II

History of Labor Struggles in MLB: The MLBPA and Marvin Miller

History of Labor Struggles in MLB: The First Collective Bargaining Agreement


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