00:00 [Archival]: So the first this morning in the number 7132, Curtis C. Flood against Kuhn and others.

[music]

00:13 Leon: Hey everyone, this is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter and Rhiannon are joined by their pal, Adam, a tenant's rights lawyer, to talk about baseball, specifically a 1972 case called Flood v. Kuhn, in which the Supreme Court found that Major League Baseball is exempt from antitrust laws.

00:32 [Archival]: The Supreme Court today rejected a suit by exiled fielder Curt Flood.

00:37 [Archival]: What I really want out of this is to give every ball player the chance to be a human being and to take advantage of the fact that we live in a free and democratic society.

00:47 [Archival]: A well-paid slave is nonetheless a slave.

00:52 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

[music]

01:01 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have brought American civil rights to the brink of extinction, much like poachers have to the leatherback sea turtle.

[laughter]

01:16 Rhiannon: Are turtles poached?

01:18 Peter: Sea turtles are very much near extinction, yeah.

01:22 Rhiannon: Yeah, but I just thought that was like the shitty environment.

01:25 Peter: No, there's poachers.

01:27 Rhiannon: Goddamnit.

01:28 Peter: Probably the environment too, if that makes you feel better.

[laughter]

01:31 Adam: Well, you can poach them if you just have some nice hot liquid.

[chuckle]

01:34 Rhiannon: Hey, whose voice is that?

01:37 Peter: Well yeah, let's back up.

[laughter]

01:40 Peter: I am Peter, Twitter's @thelawboy. I'm here with Rhiannon.

01:46 Rhiannon: Hey, everybody. Hello.

01:47 Peter: And a special guest, our buddy, Adam. Adam, welcome.

01:51 Adam: Hello.

01:52 Peter: Adam is a tenant's rights lawyer, but most importantly, this is a case about baseball, and because I don't know a lot about baseball and don't consider baseball to be a sport because you play it while wearing leather belts, we've brought on Adam who is a baseball nerd, the likes of which Rhiannon and I frankly have never seen. So...

02:13 Rhiannon: Yeah, this is, this is...

02:14 Peter: Adam's about to wow you, I think, with his baseball knowledge.

02:18 Adam: That's right, folks. Thanks for the endorsement.

[laughter]

02:22 Peter: The scope of this case goes beyond just baseball, into sports that I consider a little more real, like basketball, and I think that we'll talk about the wildcat strike from last week at the bottom of this episode, and how that ties into the broader conceptions of players' rights and labor rights in sports.

02:43 Rhiannon: Yeah.

02:43 Peter: Michael, once again, not participating, he was out a few weeks ago, and he saw how much people wanted him back and that made him feel powerful, and now he's doing it again, just to flex on you.

[laughter]

02:57 Peter: And to keep up our White male minimum, we had to bring Adam on.

[laughter]

03:02 Peter: That's the way it goes. Today's case is Flood v. Kuhn. Like I said, this case is about major league baseball, but it's also a case about players' rights, about labor rights, about antitrust law, about racism, and about how the Supreme Court is and always has been, just a bunch of old rich weirdos making shit up as they go along.

03:25 Rhiannon: Yup.

03:26 Peter: In this case, a baseball player, Curt Flood, was traded from the St. Louis Cardinals to the Philadelphia Phillies. But there is a twist. He didn't wanna go. The Phillies were awful, and Flood is a Black guy, who is concerned that Philadelphians are racist. Rightfully concerned, I should say.

03:45 Rhiannon: Yeah. [laughter]

03:47 Peter: But the League says "Tough luck. The team owns the rights to you as a player, so you're contractually obligated to go play for the Phillies." And Flood sues, claiming that this is a violation of antitrust law. Antitrust law, if you're not familiar, regulate what's called anti-competitive behavior, monopolies, collusion, things like that. So Curt says, "Look, this is essentially anti-competitive. They're using these contracts to prevent me from going and playing for whoever I wanna play with, and that's a violation of antitrust laws."

04:19 Rhiannon: Right.

04:19 Peter: But the Supreme Court, in one of the most notoriously dumb opinions of all time says that when it comes to antitrust law, baseball does not count. So, Rhiannon, tell us a little bit about Curt Flood. And by the way, Rhiannon, you agree with me that baseball is not a sport, right?

04:41 Rhiannon: Absolutely. It's not a sport.

04:42 Peter: I believe it's a game, but not a sport. Okay, we'll debate this at the bottom of the show.

04:46 Adam: I will see you both at the bottom of the show.

[laughter]

04:52 Rhiannon: Okay, so yeah, Flood v. Kuhn, this is an interesting and important story, like in sports law and sports history. Everybody knows Jackie Robinson, of course, that was the first Black player in major league baseball, back in 1947. But Curt Flood is a lesser-known Black figure in baseball, and he played a key role in baseball labor history. So Curt Flood was a center fielder. I already have questions right there, which is like, "What is that?"

05:25 Peter: It's the center of the field.

05:25 Rhiannon: Yeah, you stand at the center of the field, right?

05:29 Peter: It's not... No, it's actually not the center of the field.

05:29 Rhiannon: You stand at the center of the field and you try to catch it.

05:31 Peter: It's the center of the outfield, yeah.

05:32 Rhiannon: Adam, am I doing good so far, Adam?

05:33 Adam: Pretty good.

05:34 Rhiannon: Okay, thank you. He was a center fielder who played for 15 seasons in the majors with the Cincinnati Redlegs -- sounds racist -- and most of his career with the St. Louis Cardinals, like Peter said. By the end of his baseball career, which was apparently successful, this guy is a really good player. He was a three-time All-Star, a Gold Glove winner for seven consecutive seasons. In 1964, Curt Flood led the National League in hits, and he led the League in singles for the 1963, '64 and '68 seasons. Now, I'm told that these are significant statistics, and so yeah, like all told, Flood was a super, very good baseball player.

06:18 Peter: Right.

06:19 Rhiannon: Now, in October of 1969, the St. Louis Cardinals traded Flood along with three other players to the Philadelphia Phillies. Like Peter said, Flood was upset with this move by his team. The Phillies had a shitty record, they played in a shitty stadium, and Phillies fans were racist and belligerent. Probably not were racist and belligerent, but are.

06:42 Peter: No.

06:42 Rhiannon: I don't know anything about baseball, certainly... [laughter] And so, aside from all of the problems with going to Philly, in Curt Flood's mind, he was also offended that he only heard about the trade by mid-level Cardinals management, not the general manager. He expected for the news to be delivered to him in a more professional way. And despite a sizeable $100,000 contract with the Phillies, Flood refused to report to the team, but at the time, it's not up to players who they play for. Their talent is restricted to the team that they sign with, and then that team can reserve the right to keep them or trade them. And the player does not have a say. So Curt Flood wrote to the commissioner of baseball, Bowie Kuhn, and asked that he be declared a free agent.

07:31 Rhiannon: And this is a little bit of what he wrote. He says, "After 12 years in the Major Leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several states." He says, "It is my desire to play baseball in 1970. I am capable of playing. I have received a contract offer, but I believe I have the right to consider offers from other clubs before making any decision."

08:04 Rhiannon: So he sends that letter off to the commissioner of baseball, but Kuhn denies Flood's request. And in January 1970, Flood, with the backing of the Players' Union, files a lawsuit against Kuhn and against the MLB. Just an interesting note about the trial, Players' Union representatives had voted unanimously to support Curt Flood in the lawsuit, but he didn't really have overwhelming support from ranking file players. So no active players, for example, testified on Flood's behalf. And no active players attended the trial, but there were some interesting figures who did testify for Flood, including Jackie Robinson himself and Hank Greenberg, as well as former owner, Bill Veeck. And Adam, maybe you're the person to go to for what those names mean, who those people are?

08:57 Adam: Thanks, Rhi. So I think Rhi outlined one of the issues pretty well, which is that a lot of the players at the time were, I think understandably, pretty afraid of testifying. They had no idea what the likelihood of success would be of this lawsuit, and they had their own careers to consider. So the players and former players and owners who testified at the trial are as the Head of the Players' Union, Marvin Miller, noted in his biography, they share a sort of background as baseball outsiders. Jackie Robinson, of course, broke the MLB's color barrier in 1947. And he in fact, retired after the 1956 season rather than be traded. Hank Greenberg was a baseball executive at the time, but before that he was probably the highest profile Jewish American athlete in the country. Bill Veeck, which is the correct pronunciation of his name...

09:51 Rhiannon: Thank you. [chuckle]

09:52 Adam: Was a baseball owner with a wooden leg, he used as an ashtray, and he was famous for signing the American League's first Black player, Larry Doby. And also famous for a series of unorthodox promotions, such as letting fans make managerial decisions from the stands with placards and signing a 3'7 pinch hitter to draw a walk with a small strike zone.

[laughter]

10:13 Peter: Okay, I would like to talk about the 3'7 pinch hitter.

10:17 Adam: His name was Eddie Gaedel.

10:20 Peter: And this is an adult with dwarfism or something?

10:24 Adam: This an adult man with, I believe, dwarfism, who Bill Veeck had hired as a pinch hitter. And the other owners, after he drew his walk in his one major league at bat threatened Veeck with expulsion from the game if he ever used him again.

10:38 Peter: Got it. But there's an alternate timeline where people start imitating it. And it's sort of, I guess what is best described as a literal race to the bottom, where players just get increasingly smaller until baseball is nothing but our tiniest citizens.

10:55 Adam: That's right. I mean, I dare even the best pitcher of all time to throw a strike to a literal infant.

11:00 Peter: That's right, that's right.

[laughter]

11:02 Rhiannon: And then just a couple of other weird character notes in this story. So once the case goes up to the Supreme Court, the lawyer who argued the case for Curt Flood was Arthur Goldberg. And just a biographical note, this guy had already been a Justice on the Supreme Court. I guess the '60s and '70s were just a different time, but he did the Supreme Court thing for three years, and then he was the US ambassador to the UN for a few years. And then it appears that resume just allowed him to do whatever the fuck he wanted for the rest of his life, including arguing in front of the Supreme Court. I don't know, I don't have any other justice that has retired and then argued at SCOTUS.

11:50 Adam: And I think, as just an additional note, with respect to Goldberg, so his oral arguments before the Supreme Court for this case were notorious as some of the worst oral arguments ever on record, because he had actually started to shirk his prep duty, in part because he was running for governor of New York.

12:13 Peter: This is the career trajectory of Donald Trump Jr, by the way. [laughter] I don't know if you guys know this. This is the next seven or eight years of his life.

12:20 Rhiannon: The foreshadowing. [laughter]

12:21 Adam: Well, Arthur Goldberg lost his run for governor and Trump Junior is gonna win so it's little bit different.

[laughter]

12:25 Peter: That's right. That's true.

12:28 Rhiannon: Very good point. And then finally, we should know as we transition into discussing the law here, that this opinion is actually a five-three decision. Only eight of the justices took part in deciding the case, and that's because Justice Lewis Powell recused himself because he owned stock in Anheuser-Busch, which at the time, owned the St. Louis Cardinals.

12:51 Peter: Alright, so let's talk about the law. At this time, every baseball player's contract, as we've discussed, has a clause called a Reserve Clause that essentially said that, "After a player's contract expires, teams had the right to reserve the player for another season," so the player couldn't sign with another team. You can compare that with professional sports now, where after a contract expires, the player is a free agent who can go wherever he or she pleases. And it's worth noting that Flood's original lawsuit included allegations that these contracts violated the 13th Amendment, which prohibits slavery and indentured servitude. Those allegations were tossed out before we get to the Supreme Court, but they provide an interesting lens here, not just because it's clear there is a racial component to this case, but also because it's interesting to me how scared the courts are of digging into how many types of employment in this country are fairly similar to indentured servitude when you look a little closely. And they'd rather not address that. So what's being addressed here is whether this might be a violation of antitrust laws, and what the court holds in a decision written by Justice Blackmun is that, no joke, "Baseball is exempt from antitrust laws."

14:09 Rhiannon: Fun.

14:10 Adam: And as a quick note, this opinion gets assigned by Chief Justice Warren Burger to Blackmun, who's pretty new to the court at the time, and if you believe the sources in the Bob Woodward book, The Brethren, the reason it gets assigned to Blackmun, is that Blackmun has been chomping at the bit to get a higher profile and opinion for a while, and Burger knows how much he loves baseball. In particular, Burger feels like he owes Blackmun, because he's assigned Blackmun to write the court's opinion, and what Burger feels is a real hot-potato case that no one wants to touch from the same term, Roe v. Wade.

14:44 Rhiannon: Little, maybe you've heard of it.

14:46 Peter: Look, you gotta do the abortion case, but I got good news too. You get the Baseball case, bro.

[laughter]

14:56 Peter: Okay, so let's talk about what the majority actually says here. The opening section of this opinion is one of the most maligned parts of any Supreme Court decision in history. The section is titled, "The Game," [chuckle] and it's literally four uninterrupted pages of Justice Blackmun describing why he loves baseball, but he talks about the history of the game, and he tries to lay the ground work for making the case that baseball is of some unique historical and cultural importance, rather than just a popular sport. And you can tell that he thinks it's so poignant and beautifully written, but the whole thing is just like, "Back in 1887, the Kentucky Hoot Nannies won the World Series, even though their star shortstop, Big Al Frinkley, came down with the mean case of the rickets."

[laughter]

15:46 Peter: At the end of the decision, he literally just lists 83 baseball players that just... Just list their names.

15:55 Adam: Let's remember some guys.

15:57 Rhiannon: Let's remember some dudes.

15:58 Peter: We're naming some dudes. And to give you a taste, some of the listed names are Wee Willy Keeler, Iron Man Mcginnity, Scrappy Sammy Brockton, Three Finger Brown, and Whistling Wally Herc. And believe it or not, I only made up two of those, okay. The other three are real.

[laughter]

16:19 Peter: Rhiannon I know Adam knows which ones are... Adam is like... Immediately knew which ones were fake? But Rhiannon, just give me a stab here, which one of those seems the fakest to you?

16:29 Rhiannon: Instinctively, I wanna say that Three-Finger Brown is sounds the fakest.

16:36 Peter: But you don't think that I would go that far.

16:38 Rhiannon: Right, I think that you're a more subtle joke maker. [laughter]

16:41 Peter: That's correct. That's correct.

16:43 Adam: He's a real player.

[laughter]

16:46 Rhiannon: Okay, I'm gonna go with Scrappy Sammy. I think that's fake.

16:48 Peter: Correct, you nailed it. That's fake. That's fake.

16:51 Rhiannon: Yes, I know you. I know you, Peter. [laughter]

16:56 Peter: Iron Man Mcginnity, I can't get over this fucking name.

[laughter]

17:01 Adam: That's not a real one.

17:03 Peter: Oh, God. By the way, I chose three real names out of the 83. When I tell you there are like 40 of those have just absurd names. It's not real people. Alright, go ahead Adam.

17:15 Adam: Blackmun spent weeks and weeks actually drafting and editing this part of the decision, "The Game," and at first it was a list composed, for some reason, of entirely White players.

17:29 Peter: How do you not get Jackie Robinson? He got Wee Willy Keeler.

[laughter]

17:36 Adam: So Blackmun finally added Jackie Robinson, Roy Campanella and Satchel Paige, after Thurgood Marshall pointed out that his list was entirely White players. Thurgood Marshall, is the first Black Justice at the Supreme Court, of course, still dissented from this ruling. But years later, when Blackmun was asked if he regretted any part of the decision, he said that his biggest regret was admitting New York Giants player, Mel Ott.

18:03 Rhiannon: Great. Took that lesson to heart. I'm assuming Mel Ott is a White man.

18:10 Adam: He is.

[laughter]

18:14 Peter: So the footnotes of this section contain excerpts from multiple poems about baseball, including one poem about baseball that is about another poem about baseball. I'm like, I realize people romanticize the sport a little bit, but come on dude. You're reading multiple baseball poems as you go through this opinion, in the back of your mind you're like, "This is about antitrust law? That's what's happening here?" The entire section of this opinion, The Game, that section of the opinion is so embarrassing that Chief Justice Burger, he joined the majority except for this section of the opinion.

18:54 Rhiannon: Made that note, "I join everything except this part, which... " Right.

19:01 Adam: And this is the same Warren Burger who, I think it was Rhi that had discovered his Wikipedia page said he was not too bright.

19:07 Rhiannon: Right, yeah, yeah, yeah... It said he was... He did not emerge as a strong intellectual force on the court...

[laughter]

19:13 Rhiannon: You know, all of this just goes to show, I think, that I'm right about baseball, when I say that baseball is...

19:21 Peter: Yeah, go off...

19:23 Adam: If you're gonna call it a sport... If you're gonna call it a sport, it's a sport for grandpas, okay? Grandpas are the only people on the planet who talk about things like this, and who get misty-eyed over a sport where you can chew gum and eat peanuts the whole time that you're playing. And frankly, that's because grandpas are the only people on the planet who have the time for a game that's this boring. And I don't wanna take away from the fact that baseball... It's not just an American pastime, it's a Latin American pastime, it's an East Asian pastime... But in the US, this sport is for old white dudes... Sorry, Adam.

19:58 Peter: Absolutely this is... When you're watching baseball, you have time to turn to your grandson after something happens and be like, "Well, what just happened there?" And he's like, "Oh, he got a hit, grandpa... He got a hit."

[laughter]

20:11 Rhiannon: Right. You have to be aloof as hell to enjoy this game. You know those frogs that... Because of evolution or whatever, they hibernate by just like choosing a leaf that looks comfortable and then they just sit still for three months? That's what's happening when an old rich man watches baseball. There's a reel of black and white film playing in his head while he watches the game, and it's his most cherished memory from back in the day, and it's like, it's that time they loaded up the boys in a station wagon the size of a tank and they drove down to the creek so they could practice shooting rifles at bugs... That's what's happening when an old man watches baseball. [laughter]

20:54 Peter: They... If you watch... Anyone over the age of 65 who's watching a baseball game, will just turn to you and start talking about other baseball games, that they were at.

21:02 Rhiannon: Right, yes. [laughter]

21:03 Adam: Guilty as charged.

[laughter]

21:08 Peter: Alright, I think it's time for an ad.

0:21:09 Peter: So the next section of the opinion actually starts talking about law. And Blackmun goes through the procedural history, and then he gets to some of the court's prior cases. In 1922, there was a case called Federal Baseball Club v. National League, which held that federal antitrust laws, specifically the Sherman Act, which is the primary federal antitrust statute, did not apply to baseball, because baseball was not an interstate business that would fall under Congress's authority.

21:40 Adam: And I should say that Federal Baseball itself was a pretty embarrassing decision. It's a short decision, about three paragraphs, by Oliver Wendell Holmes, whom 5-4 listeners might remember as the author of the Eugenics Decision, Buck v. Bell.

21:55 Rhiannon: Yes.

21:56 Adam: And it's very much a feature of the Lochner era, in terms of limiting the scope of government regulation. So, in Federal Baseball, Holmes writes that, "The business of baseball is giving exhibitions of baseball, which are purely state affairs." He ends up analogizing it to legal lecturers who happen to travel across state lines to give speeches. The idea that baseball was not a business was obviously absurd, even in 1922. But I do appreciate though that Holmes did recognize that lawyers were akin to professional athletes.

[laughter]

22:31 Peter: That's right.

22:31 Adam: Shoutout Holmes.

22:33 Peter: I love that that was the only analogy he could think of.

22:35 Rhiannon: Right. [laughter]

22:35 Peter: He was like, "I'm gonna think of the closest analogy I have for baseball, which is lawyers giving speeches."

[laughter]

22:44 Peter: So, in the 1950s, the court had held that other sports, including football and boxing, are covered by antitrust laws, and so this presents this interesting question. You have this, what is at the time, a 50-year-old case saying baseball is not covered, but then recently, they've been saying other sports are covered. And what Blackmun says is like, "Well, look, there's no question that baseball is an interstate business, like Holmes was wrong about that, back in the Federal Baseball case in 1922. But baseball is nonetheless exempt from antitrust laws." This is particularly bizarre because he's saying, "Look, the reasoning in the Federal Baseball case was wrong, but we still have to respect the conclusion and treat it as if it's binding precedent." It doesn't really make sense. His main reason is that he says, "Congress hasn't passed a law that would overrule the court's decision in Federal Baseball... " Which is just... The courts do this sometimes, where they say like, "Well, Congress could have over... Have made a law that overruled our case." The court makes some terrible ruling, and if Congress doesn't go through the process of drafting and passing legislation that overturns it, then the court is doing the Regina George, like "So you agree?"

[laughter]

23:57 Peter: And it's just... It's just fucking, it's just so stupid. And the real reason that Blackmun arrived at this conclusion, if you take a step back, is clearly that he just thinks baseball is special, right?

24:10 Rhiannon: Right, yeah.

24:10 Peter: And he doesn't wanna risk... He doesn't wanna risk a ruling that would be to disruptive to the league. If that's not the reason, then why start your opinion with an embarrassing soliloquy about the magic of the sport, right?

24:22 Rhiannon: Exactly, yeah.

24:22 Peter: The idea you're supposed to take away from the entire opening section of the case is something like, "When you hear the crack of the bat ring across the ballpark, you will know in your heart that antitrust laws don't apply." And that's really it. That's the holding here. That's all there is to it. The precedent, the 1922 case, Federal Baseball is relevant to a degree, but not really. What he's really saying is just, "Baseball is special and deserves special treatment." That's what the fundamental holding of the case is.

24:54 Rhiannon: Yes.

24:55 Peter: There's a couple dissents here... The best one in my view, written by Justice William Douglas. Douglas, we should [chuckle] talk about for a second for sure, 'cause we haven't talked about him on 5-4, but he's an incredible person, notoriously sort of a curmudgeon who dissented far more than your average Justice, often just asserted his position without providing much reasoning, which, of course, bothered all of his colleagues and legal academics. He once wrote that trees should have standing to sue in environmental cases, which was pretty cool.

25:28 Rhiannon: Love it.

25:29 Adam: Hell, yeah.

25:29 Peter: Another quick note, he claimed he served in the military, but some of his more prominent biographers, like more than one, believe that this was a lie.

[laughter]

25:38 Adam: Stolen valor. Stolen valor.

[laughter]

25:41 Peter: And he's also... He was also famously rude, especially to his clerks, who he described as, "the lowest form of human life."

25:49 Rhiannon: Oh my god. [laughter]

25:53 Peter: All that to say... It should go without saying here, I love this dude with all my heart, I think he really embodies the spirit of the podcast...

[laughter]

26:01 Rhiannon: It's... Peter's role model.

26:03 Adam: Yeah, and speaking of him being Peter's role model, I do think it's interesting that Peter should omit perhaps the most interesting biographical detail about Douglas, which is that he was married four times, and his second two marriages were with women he met as college students.

26:18 Rhiannon: Oh boy.

26:19 Adam: One of those women was actually writing her college thesis on his Supreme Court jurisprudence at the time that they met.

26:27 Rhiannon: I'm grossed out.

26:28 Adam: So I think that that means that Douglas was probably one of the earlier participants in American history in what we might call age gap discourse.

26:36 Peter: That's right. [chuckle] So here... Douglas is dissenting here saying, "Look, you're waxing poetic about baseball, but this isn't really about baseball, this is about business, and this business isn't run by any of the 83 players whose names you listed, it's run by rich owners." So Douglas is explicitly pointing out the twisted irony of Blackmun's majority opinion, he lists these players as if to sort of highlight the long and storied history of the game, but the players listed by Blackmun are the victims of the collusive schemes of the league and the teams that have kept their pay down for what is at this point, basically a century.

27:12 Rhiannon: Exactly... Right.

27:15 Peter: And it's easy to be dismissive of this case as sort of the complaint of a highly paid athlete. One thing to note is that Curt Flood just wasn't that highly paid... In his highest paid year, he made about 100 grand which we mentioned... Great money at the time, worth about 700 grand today. But first of all, most of his time as a pro, he made substantially less than that, in fact, prior to this case, averaged about 40,000 a year over the prior nine years. And, also, it's nothing near what athletes now actually make. And this case was like an early turning point in the movement for players' rights that eventually saw them making much more substantial shares of the revenue that they were generating.

27:57 Rhiannon: Yeah, and to be a little bit more specific, this case was part of what kicked off a revolution really, in how players viewed their own contracts. Very few of Curt Flood's fellow players openly supported Flood during his case, but in the years immediately following this decision, the issue became really the focal point of negotiations between Major League Baseball and the players' union.

28:21 Adam: Yeah, that's right Rhi, and if you've followed sports in the last, I don't know, 40 years or so, you've probably realized that while Curt Flood lost his Supreme Court case, the Reserve Clause as we've described it in this episode is dead.

28:35 Rhiannon: Right, exactly.

28:36 Adam: And not only that, but Major League Baseball has some of the highest paid players in American professional sports. So how did this happen? Well, the postscript to Flood v. Kuhn is really a vindication of the American labor movement. And this is where Marvin Miller comes in, who like some podcast hosts on this episode, was a not particularly good second baseman in high school.

[laughter]

29:01 Adam: That's the extent of his baseball career. And Marvin Miller was really one of the great labor leaders in American history. Before he served as the first president of the Major League Baseball Players Association, he was an in-house economist for the Steel Workers Union, and he was actually hand-picked by a committee of players to serve as, what was basically the first head of the players' union at the time. And as the head of the players' union, he ultimately led the players through the Flood v. Kuhn case, he led them through the creation of these first bargaining agreements, the first collective bargain agreements.

29:44 Adam: He led them through several successful strikes. After the players ultimately won free agency, the owners tried to short-circuit it and collude, but the players successfully struck in the '80s. Then about two decades after the MLBPA had killed the reserve clause, and almost eight decades after Federal Baseball, Congress finally did step in to legislate the now non-existent reserve clause out of existence. Thank you congress. [chuckle] So to sum up, the players had tried to get rid of the reserve clause using the courts, and that had ultimately not worked, but what did work was collective action.

30:25 Rhiannon: Right.

30:25 Adam: And it's a short baseball postscript, Marvin Miller, who was one of the great American labor leaders of the 20th century, he was finally inducted into the Baseball Hall of Fame in 2020, which is eight years after his death and it was almost immediately after the Hall of Fame changed its selection rules to take away voting power from executives. Curt Flood who died in 1997, is still waiting for his day in the Hall of Fame.

30:47 Rhiannon: Yes.

30:48 Adam: And I would say that right now, the MLBPA is, or at least probably has been the most powerful of any of the players' unions in American professional sports. Notably, the MLBPA is the only players' union in American professional sports that has staved off the introduction of a salary cap to its respective sport.

31:12 Peter: Sports is such an interesting microcosm of labor and the labor movement to me in a large part because, it's the one field where everyone admits that players are underpaid relative to their actual value, you have salary caps and all of these other artificial constraints on players' salary. And the result is you have guys like LeBron James who are 100%, no questions asked, making just a fraction of the revenue that they generate.

31:37 Rhiannon: Right.

31:38 Peter: And the conservative position has always been like, no matter what the context, that these people have no room to complain. But that fundamentally misunderstands the position of the labor movement, which is not merely that workers deserve pay sufficient to survive, but that they deserve to be paid what they produce.

31:55 Rhiannon: Exactly.

31:56 Peter: And it's just remarkable to me that even in the context of these highly paid athletes who are complete outliers reactionaries will reliably defend the interest of management. And the Douglas dissent here is so spot on in my view, because he identifies that baseball is a business, and that Blackmun's position in the majority opinion is not one that supports baseball as a sport, but one that supports the extremely wealthy people who control it.

32:19 Rhiannon: If you just think about the structure of the sports industry writ large, you can see that sports, as much as people might wanna say, "It's just a game... " It generates so much money for the people who are in power, the people who are in charge, and the workers, the athletes, the players get a bad deal out of it.

32:36 Peter: Right. So I think we should... Seeing as the reserve clause that this case was about no longer exists, you might wonder whether the antitrust exemption for baseball even matters anymore. And it shouldn't surprise you to learn that Major League Baseball has moved past using the exemption for minor contract clauses, and moved on to using it for something more closely resembling large-scale, multi-billion dollar fraud on the public.

33:01 Adam: Oh, good for them.

[laughter]

33:04 Peter: So you have these teams that are competing with one another, right? In a normal business, antitrust laws would prevent them from colluding to do something that would help all of them or some of them, but hinder one of the teams, one of the businesses. So if you're in software, Microsoft and Apple or whatever, cannot collude to try to box out someone who's trying to enter the industry. That's what antitrust law is for, to prevent that sort of anti-competitive behavior. So this allows teams to collude with one another to box out cities that might want to participate in the league, to box out owners who might wanna do certain things with their teams that other owners don't agree with, all sorts of situations are impacted by this.

33:50 Peter: Most significantly, the exemption has fostered the already deeply corrupt environment in which owners decide whether and how a franchise relocates. So owners of teams, teams that are, again, technically in competition with one another, have often had closed-door meetings to discuss whether, where and under what circumstance a team would relocate... And it's an unwritten rule that you can't relocate without broad consensus from the other owners. That would be, in any other business a conspiracy and violation of antitrust laws, but...

34:23 Rhiannon: Right. Is it... That's collusive, right?

34:25 Peter: Right.

34:25 Adam: You'd call it a cartel.

34:26 Peter: Yes.

34:26 Adam: It would be a cartel in any other occurrence.

[laughter]

34:28 Peter: Yes, absolutely. But according to the supreme court, baseball is magic, so it's fine. And the consequences of that are fairly numerous, and maybe the most significant is that it allows the league to drive and influence bidding by cities on baseball franchises, which can result in anywhere from hundreds of millions to billions of dollars of public money being handed over to these billionaire franchise owners. For example, in 1997, the Minnesota Twins told the City of Minneapolis that they would relocate if they did not receive public financing for a new stadium. The League stepped in to tell the city that they'd approve the relocation if the financing didn't come through and that they would not allow any other team to play in the existing stadium in the future. And that's the sort of open corruption that antitrust laws are designed to fight against.

35:19 Rhiannon: Yeah.

35:19 Peter: But it's just allowed to flourish here because Justice Blackmun enjoyed a nice afternoon at the ballpark. Right?

35:25 Rhiannon: Yeah, those hot dogs, they really hit different. You know?

35:28 Peter: Well, they do.

35:29 Adam: And to be fair...

[laughter]

35:30 Adam: Yes, however, I do wanna just add another point of clarification here, which is that... I mean, you might be used to using the terms baseball and the MLB interchangeably, but the antitrust exemption as it exists, applies to baseball, and to the extent that the reserve clause does not exist and to the extent that Congress has struck the reserve clause, that does not apply to any other form of baseball in the country except for the MLB. So to...

35:57 Rhiannon: This is a really good point, yeah.

36:00 Peter: Right.

36:00 Adam: To this day, minor league baseball players are some of the most exploited athletes in the entire country.

36:05 Rhiannon: Yeah.

36:05 Adam: In many cases, they make well below the federal poverty line in terms of their wage, and they lack any legal recourse to change that. The MLB and minor league baseball have also been considering, recently, a contraction plan, they would disaffiliate some minor league teams from their MLB counterparts and entirely eliminate other minor league teams. But with the antitrust exemption, there's really no way for cities that are facing the loss of their minor league teams to challenge that as anti-competitive.

36:34 Peter: Yeah.

36:34 Rhiannon: Yeah.

36:34 Peter: Bad news for Trenton.

[laughter]

36:39 Peter: Those are the types of cities that have minor league teams, right? Just like... The trends of the world, your...

36:45 Rhiannon: I know that Savannah, Georgia's...

36:46 Peter: Your Hudson, New Yorks...

36:47 Rhiannon: Minor League Team is the Savannah Bananas.

36:50 Adam: Well, that's a great name.

36:50 Peter: I love that. That's phenomenal. What are other cities that might have minor league teams? I'm just trying to think of... You gotta go to fourth tier cities, right? [chuckle] That's when you start getting the minor...

37:01 Rhiannon: Not necessarily.

37:01 Adam: Not necessarily.

37:02 Rhiannon: Like New Orleans, I think they're the Zephyrs.

37:05 Adam: Yeah. Chattanooga has a team... Chattanooga...

37:10 Peter: Oh, I didn't mean to cast aspersions against Chattanooga...

[laughter]

37:12 Adam: Columbus... Columbus, Ohio. Columbus, Ohio has a triple-A team.

37:16 Peter: Oh, okay, never mind then, if Columbus...

[laughter]

37:18 Peter: And Chattanooga have teams, then I shouldn't have said anything at all...

37:21 Rhiannon: Come correct, Peter. [laughter]

37:24 Peter: And look, without getting into too many details. The antitrust exemption has other implications... Broadcasting agreements are implicated.

37:32 Rhiannon: Yeah.

37:33 Peter: The employment of umpires, right? And other people who are affiliated with baseball, but who are not players are impacted. And so... It goes well beyond just player contracts, it even goes well beyond public financing of stadiums and franchise relocation. The last thing we wanna say about this case is that it's hard not to view this case and the conversations about labor rights in the sports context generally through the lens of racial inequity, right?

38:01 Rhiannon: Absolutely.

38:02 Peter: Curt Flood was a black man demanding power as a baseball player at a time when the Civil Rights Movement is experiencing sustained pushback within American politics and society, right? Richard Nixon has been elected on the back of the reactionary push against civil rights.

38:19 Adam: And everyone knows, right? That Jackie Robinson had integrated major league baseball, but Curt Flood, I think deserves recognition, among a lot of other players, for integrating the minor league teams that he played with. So Jackie Robinson went to the MLB, played for Brooklyn Dodgers, but aside from the Major Leagues, there were also all these minor leagues that all needed to be integrated one by one.

38:45 Rhiannon: Yeah.

38:45 Adam: And Flood did that.

38:46 Rhiannon: Yeah.

38:46 Peter: So yes, Blackmun's opinion is awful because he frames a real issue as if it was about the magic of baseball, but it's also awful because it treats a class of people as if their ability to control their lives and livelihoods is less important than his own desire to enjoy watching them play a game.

39:02 Rhiannon: Yes.

39:03 Peter: So the bargaining power of professional athletes as we mentioned up top was again in the spotlight last week when NBA players went on a brief wildcat strike as a protest for the police-involved shooting of Jacob Blake in Kenosha, Wisconsin.

39:21 Rhiannon: Yeah. You could say that.

39:22 Peter: As they call it... And you all saw the usual reactionary forces aligning against the players, spouting their usual lines. If a professional athlete spends his money on cars and partying and women, they'll call him a degenerate, but if the same athlete takes his time and energy and applies it to effecting social change, they fight against that too, because at the end of the day, conservatives believe that the amount of money made by professional athletes is a disturbance in the natural order. That's why social media is full of fucking middle management losers, who have never done an impressive thing in their life, complaining about how these guys are... "They're making so much money for just playing a game", right?

40:08 Rhiannon: Right, right, yeah.

40:08 Peter: It's fundamentally disconcerting to the reactionary mind, not just what these players are doing with the large amounts of social and economic influence they have, but that they have it at all. And now we should talk about whether baseball is a sport.

40:24 Rhiannon: Okay. Peter, you have the stage, Peter... Yeah. [chuckle]

40:29 Peter: Yeah. Opening arguments against baseball. Like I mentioned, you are wearing a leather belt when you play, which... That's business casual, right? That's not...

40:39 Adam: There is nothing wrong with leather belts.

40:41 Peter: These are opening arguments, objection [chuckle] I am entitled to state my position in full without interruption here.

[laughter]

40:51 Peter: You're also wearing, what's best described as a jump suit that was meant to dress children in 1887 or something, they have unbelievably high socks, again, very business casual, they can chew tobacco while... Just while they're playing, these guys will roll up to the plate, and that's the main thing you do, right, you go to the plate and you try to hit, and they'll just be chewing shit, you could have a sandwich in your pocket out there and no one would say anything. That's not a sport, okay? It's an activity. They... [chuckle] What else have we got? I feel that it's worth noting that, for many years, the greatest player in baseball history was considered to be Babe Ruth, who's like 5'5 foot, just... Like... Has like... He's constantly smoking, he seems to be smoking while he plays the game.

41:44 Rhiannon: He's not so much in shape, but he's in a shape which is round. [laughter]

41:49 Peter: Yeah. I mean, look, the guy was a bit chunky, which like... No real judgment, but, is that the greatest athlete your sport has ever produced? It doesn't really make any sense to me. It's a leisure activity, it's something you do to occupy your time, it's a game, for sure, I concede that, but it's not a sport.

42:07 Rhiannon: Look, it takes... I can even concede, like it takes skill, I would not be able to hit a pitch or whatever the fuck, [chuckle] a ball coming at me... But yeah, not a sport. Adam, you may rebut.

42:20 Peter: Yeah, absolutely. Adam, go ahead.

42:22 Adam: I think, in baseball's defense, I would just say that if the man who's self-described as Twitter's daintiest lawyer would like to step into the batter's box and take a few swings, he should help himself.

42:32 Rhiannon: [laughter] Get his ass. [laughter]

42:34 Peter: Well, since you've resorted to personal attacks rather than substantive argument...

42:40 Adam: At par, at par...

42:41 Peter: I think we know that I have come out on top here, no one can defend baseball which is a fake sport. [chuckle]

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42:55 Peter: Alright, next week is a special episode on voting rights. Given that the republican party is steadily making voting illegal in this country, we thought that maybe we should talk about it a little bit. Explain why it's definitely gonna work and there will never be free and fair elections again. Follow us on Twitter @fivefourpod, tell your friends and family. Michael will be back, and special thanks to Adam our baseball guy, thanks for coming on.

43:26 Adam: Appreciate being on.

43:30 Rhiannon: Bye.

[music]

43:31 Michael: 5-4 is presented by Westwood One and Prolog projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

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43:53 Leon: From the Westwood One Podcast Network.

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