FLOOD v. KUHN
Argument of Paul A. Porter
Chief Justice Warren E. Burger: So first this morning in number 71-32 Curtis C. Flood against Kuhn and others.
Mr. Arthur J. Goldberg: Mr. Chief Justice and may it please the court.
The issue in this case is the legality under federal antitrust and state statutory and Commonwealth organized baseballs through reserved system.
To paraphrase Judge Waterman's opinion in the Court of Appeals, this is a scheme which binds every American professional baseball player to one team or it's assignee for life.
And which compels team owners to boycott the player or property of another team owner, and to boycott any fellow owner, and to boycott the player himself and blacklist him, who fails to abide by the agreement among the owners to eliminate competition in recruitment and retention of personnel.
The reach of the reserve system extends beyond the continental United States and even our new states.
Beyond the 24 Major League Clubs which are defendants in this law suit, to 155 Minor League clubs organized in 21 Minor Leagues, to the Mexican League and even to Japan.
An American player boycotted by organized baseball today is boycotted by Japanese employers as well.
Perhaps it maybe helpful to the court, if I having stated the issue now review a few of the pertinent facts.
On October 8, 1969 Curtis C. Flood then a major professional ball player for the St. Louis Cardinals was traded, his contract transferred and assigned to another National League baseball club, the Philadelphia Phillies as part of the multi-player transaction between the two clubs.
As Judge Cooper found in the District Court and I paraphrase him at the time of the trade, he was 22 years old, a veteran of 12 years of service with the Cardinals.
Co-captain of the team by the election of his teammates.
And acknowledged to be a player of exceptional and proven ability.
About that the record is very clear, in his active service with the St. Louis Cardinals, he batted around 300, won several Golden Gloves competition, which is the competition for excellent fielding.
And was regarded to be a great asset for that team, and as evidenced by the fact that he was being paid $90,000 a year.
Not a salary as we know from reading the newspapers that baseball owners throw away very lightly.
The circumstances surrounding his assignment or as Judge Waterman said in the Court of Appeals to use baseball (Inaudible) sale are rather interesting as part of the background of this litigation.
Now perhaps that explains why he chose to use the Courts to vindicate his rights, although he had deep routes in St. Louis Missouri, not only with the ball club which he had served faithfully for 12 years.
He was also an artist who had an artist studio.
He had two photographic studios and franchises else where.
And he had many friends and family in St. Louis.
He was not consulted about the training.
At the contrary he received a form notice and then a telephone call.
The form notice was a very cryptic one.
Record itself does not really display what it actually is, it's a printed form.
And in that printed form, there is a checkbox.
Your contract is renewed, your contract code has been transferred, you have been released from the service.
Perhaps, I would like to suggest Your Honors you might want to look at the exhibits rather than the cold record, to see how this form is filled out.
I should say at all fairness to my distinguished brothers on the opposite side, he also received a telephone call.
After the transaction was completed not before presumably, he had relinquished all of his rights to any consultation or disposition of his destiny.
When at the age of 15, he signed a contract with the Cincinnati Reds that without the without the assistance of an attorney which was the practice in those days and until very recently, until the 1970 contract.
He signed his first professional baseball contract for an average salary of $4000, which of course worked his way up the ladder, but he was playing last.
He enjoyed this very generous salary.
The fact that he was an exceptional player as Judge Cooper found in the District Court and Judge Waterman speaking for the Court of Appeals confirmed that finding.
It was illustrated by his batting averages.
After he started to play full time in 1962 he had been there since 1958 with St. Louis Cardinals his batting averages were 1962 296, 1963 302, 1964 311, 1965 310, 1965 267, 1967 335, 1968 301, 1969 285.
I am not a great mathematician Mr. Chief Justice and associate justices, but this seems to me to be a batting average around 300.
He was also the winner of several Golden Gloves awards.
These are awards given to players for excellent in fielding.
He got this notice, this form notice without advance consultation, and he got the telephone call telling him that he had to uproot himself, his family, his business connections and move to Philadelphia.
On December 24, 1969 Mr. Flood wrote to the Commissioner of Baseball, respondent to Mr. Bowie Kuhn, the Commissioner of Baseball asserting his rights to negotiate with team other than Philadelphia and State.
And it's a rather interesting exchange, this was his letter in part, the relevant part, “Dear Mr. Khun after 12 years in the Major Leagues, I do not feel that I am a piece of property to be brought and sold, irrespective of my wishes.
I believe that any system which produces that vital result violates my basic rights as a citizen, and is inconsistent with the laws of the United States and of the law of Federal States.”
The Commissioner of Baseball Mr. Khun replied, Dear Curt this is frankly reminiscent to me of a unanimous decision of the Supreme Court, which reverse the Hamilton case because a witness was addressed by her first name while other witnesses were addressed by their last names.
Putting that aside the letter read, “Dear Curt, while we agreed with the contention that as a human being you are not a piece of property to be bought and sold.
And this is fundamental to our society and could not see its applicability of the situation on him.”
Faced with the sale which he deemed to be an impairment of his legal rights and denial of his request that he be made a free agent of liberty to seek employment with other teams and without subjecting the new employer to boycott by the team owners, he had no recourse in his opinion, other than to mount this law suit.
And this law suit challenges the reserve system which permits this to be done.
Mr. Flood adhered to his refusal to play for Philadelphia during the 1970 season.
Well, then Philadelphia sold its exclusive right to negotiate with Flood, to the Washington Senators after 1970 season concluded, and until the necessity compelled him to acquiescence.
So we have the reserve system, not unfamiliar to this Court, because this Court has passed upon it.
I think wrongly in two cases and particularly Toolson.
I think a very accurate description of the reserve clause as contained both in the District Court opinion and in Judge Waterman's opinion for the majority of the Court of Appeals for the whole Court of Appeals, Judge Moore filed a concurring opinion.
Judge Waterman in the Court of Appeals described the reserve system as a system and I quote him, “which pursuant to a nationwide agreement” and I shall say a word about that, clubs, baseball clubs effectively restrict a baseball player, if he desires to play professional baseball at all, contract negotiations with that club that organized baseball which firstly employs or reserves it, or with that clubs, assignee club.
Now in the subsequent assignee clubs to which in the (Inaudible) and I am quoting Judge Waterman, “he has been sold or traded, there is a more expensive treatment of how the reserve system operates citing the rules which govern the baseball rules in Judge Cooper's opinion in the District Court.”
Now while I disagree with his conclusion, I do not disagree that Judge Cooper correctly describes how the reserve system operates.
Briefly, in addition to Judge Waterman's pungent and succinct description it goes beyond that.
No other club may bid for his services, once he signs.
He is not permitted to approach any other club.
That's called the No Tampering Rule.
A club which violates this rule is subject to boycott by the other clubs.
In fact, any player that plays for another club which violates this rule, is subject to discipline, by the Commissioner of Baseball.
And it also extends beyond, Judge Waterman did not deal with clubs, the Major League clubs that extends the Minor League club, that extends to the Mexican League, that extends even to Japan.
This is un-contradicted in the record.
Now Mr. Flood stated out in 1970 and pursues this law suit, challenging the reserve system on several grounds.
First, that it violates the Antitrust laws of the United States, second that it violates the Antitrust laws and Common law of the several states, and third that it violates the Thirteenth Amendment of the Constitution, of the United States prescribing that indentured service as well as slavery should not be permitted.
Now, as he stayed out in 1970 as I have said, he was confronted with 1971, and at that time Philadelphia the team that owned him, again I quote, paraphrased as Waterman’s opinion, “The team that owns him sold him to Washington.
He agreed to play for Washington, he was there for a few months and we can all take judicial notice, I think of what occurred layman, lawyers and I believe this Court, he tried, he had been laid off for a year.
After trying for a few months in Spring training and in the actual season he was best, he could not easily regain his skills which is not difficult to understand and he left”.
Now, the transfer to Philadelphia, the transfer from Philadelphia to Washington was accompanied by stipulations between ourselves and opposing counsel that this was not connected to this lawsuit.
I am well aware however that private people cannot stipulate a case for this court, but the transfer did not moot this case and Radovich, the football case, this court held that the success of a boycott did not moot the case and furthermore he had experienced damages in 1970, and he had suffered impairment of his career.
Now, I turn to the reserve clause.
Justice Potter Stewart: He indicated in his letter, I noticed in the record in his letter in late 1969 to Mr. Kuhn that Philadelphia had offered him a contract, what were the terms of that contract, not all the details but in the (voice overlap)
Mr. Arthur J. Goldberg: They offered him an increase to a $100,000 with salary and another benefits, but that was not what he was contesting, he was contesting being removed without his consent and as his letter states he didn't want to be treated as channel property, question of principle.
Justice Potter Stewart: I just wanted to ask to you, but you are now telling us about the lack of mootness and about his damages in 1970 He was moved off for $20,000 (voice overlap)
Mr. Arthur J. Goldberg: It is not by the way new although I have seen articles about it which indicates that this high paid ball player did things as you know that, why did he do it when other ball players, by the way despite of all the stories in press in the five years previous had only averaged a little over $8,000 a year, why this high paid ball player did this?
He did it as he simply said, out of principle.
He no longer wanted to be treated as channel property, he made that decision on his own and although he has been supported in this litigation by the Players Association about which I shall later have reference.
This was his decision, the record is very plain on that, in fact he was told by the Director Mr. Miller that he had a tough case, nevertheless he felt in good conscience he had to presume.
Justice Byron R. White: As a practical matter, he had no real chance remaining in St. Louis and negotiating another controversy with St. Louis, he would have had to go to one on the other teams even if he had been to the reserve --
Mr. Arthur J. Goldberg: Exactly, Mr. Justice provided this clause is legal and I shall say it is not.
Justice Byron R. White: Even if it's not legal, if St. Louis is trading him, regardless of the reserve clause they are not going to negotiate another contract?
Mr. Arthur J. Goldberg: He said that what he wanted, what is the opportunity as a free agent to negotiate his own deal, not to be traded as this form that I have referred, indicates without his concern.
Now the reserve clause has been in existence one hundred years long and today any Union that the ball players formed, which I shall talk about in the labor exemption, with one important modification.
In 1965, the reserve system was extended for the first time to potential new players who had never signed an agreement with any team and typically these are teenagers just graduated from high school or who have dropped out of high school.
This had never been done.
This category not in the minor leagues they until 65 enjoyed the privilege of negotiating their first contract, that no longer exist.
They have a semiannual draft.
There is another factor which I shall advert to when I talk about the so called labor exemption.
Judge Cooper found that the baseball’s reserve system is not presently, collectively agreed to.
Citation is in my brief, I shall not burden you with the citation.
Now when Flood decided to sue, he challenges as I have said on several grounds.
Justice William J. Brennan: Mr. Justice may I ask you, suppose it had been collectively agreed to would your position be any different?
Mr. Arthur J. Goldberg: No.
And I shall discuss that when I come to the labor exemption.
Justice William J. Brennan: I hope you are going to get to that.
Mr. Arthur J. Goldberg: I will move fast, because of the shortness of time, we have these three of our positions.
On the first the Anti-trust laws we are confronted obviously with two decisions in this court, Federal Baseball decided in 1942 and Toolson decided in 1953.
Justice William J. Brennan: And as they would have to be overruled.
Mr. Arthur J. Goldberg: They would have to overruled, they should be overruled, they should be overruled for very good reasons, they should be overruled because the first one Federal Baseball was not as Judge Friendly has said, “Justice Holmes happiest hour”, indeed.
Justice William J. Brennan: But I take that Mr. Justice those both dealt with the issue of statutory constructions.
Mr. Arthur J. Goldberg: Yes, but even then it showed, I doubt that Justice Holmes had never seen a ball game--
Justice William J. Brennan: The Court doesn’t readily overrule as a Statutory construction.
Mr. Arthur J. Goldberg: Yes but it has and quite recently as I shall point out in a moment in reading throwing opinion written by Justice Stewart for a unanimous court in construing a statute.
There is a case that put aside the Collins versus Hardyman, the Federal Baseball in fact was abandoned by Justice Holmes the very next term -- and Toolson was a percuriam which merely said that while we have done it even though we think it’s wrong because interstate commerce has changed, well, we rather leave it to Congress and the Court was troubled at that time with whether or not prospective rulings could be met, that problem of course has been settled by this court even quite recently and I shall mention that.
Now, I say to you very simply, I shall not be elaborate that Federal Baseball was wrong.
The development of law or what constitutes the commerce was considered the base and no one would doubt that baseball is engaged in the interstate commerce.
This court in Radovich this court Shubert theaters, this court in the boxing area have all characterized sports, if they are so called as in interstate commerce baseball indeed is an interstate commerce in a very big way.
That is a tremendous institution that sends people all over the company and in Canada.
It realizes enormous revenues from television I think I saw the other day that in the National Contract Television Rights, they realized $41 million and then it supplemented their local contracts.
Now we have here a question of stare decisis that I thought that this had been put to rest involving a statute--
Justice Byron R. White: Mr. Justice said just before you start on that, do you think Federal Baseball and Toolson indicated that the baseball was not engaged in interstate commerce or is it that labor isn't an article of commerce, service is not article of commerce is a matter of statutory construction than the intent of Congress, would you just say that labor is an article of commerce?
Mr. Arthur J. Goldberg: It depends on what way labor is treated, labor should not be an article of commerce.
Clayton Act says it should not be a commodity.
Justice Byron R. White: Well is Flood different?
Mr. Arthur J. Goldberg: Yes, because he is been treated as a commodity, as everybody is under the reserve rule.
He is not treated his labor as we traditionally understand labor people to be treated, free American workers determining their own destiny.
Justice Byron R. White: But in anyways -- I gather Radovich settled that?
Mr. Arthur J. Goldberg: Yes it did, the same issue was Radovich and decided against the football owners which brought Radovich, which were involved in Radovich's decision in this Court.
It was argued in Radovich, and I do not know what prompted this Court to take certiorari, I had not assumed the purpose of the grant and this necessarily follows, if it is treated as a labor exemption which I shall talk about.
If, it is decided that the labor exemptions so called applies, then that certainly applies to football they have a union, certainly applies to hockey and the consequences of a decision holding that the labor exemption applies to baseball may necessarily mean that it applies to all of the sports, so called sports.
Otherwise it's very interesting when you read this record, as I know you have or will, Bowie Kuhn the Commissioner of Baseball does not refer to it as a sport.
He refers to it as an entertainment, as entertainment it's governed by your decision in Shubert which says that subject to antitrust regulation.
The decision Justice Stewart that I mentioned, in a statutory construction is your own in Griffin versus Breckenridge, perhaps I shall read only a few sentences.
Whether or not Collins versus Hardyman construes the Civil Rights Act.
Correctly decided at its own fact is a question with which we need not here be concerned, but it is clear in light of the evolution of decisional law, that had passed since the case was decided that many of the constitutional problems there, proceeds simply do not exist.
Justice Holmes conceived there was a constitutional problem.
The only reasons remains therefore not to accord to the words of the statute, their apparent meaning.
I move quickly to the next point.
I think that it ought to be overruled.
It's anomaly in the law, every common theater has said it's anomaly in the law to adhere to Toolson and to Federal Baseball as improperly decided.
Now I move quickly to the next point.
And that is state law, peculiarly enough as Judge Waterman even says they were the we were in the horns of a dilemma.
The federal law did not apply because it was not interstate commerce.
Why should not state law apply?
Judge Waterman said contrary to the District Court, which said it was preempted Judge Waterman says that it was interfering with interstate commerce.
I take that this has no foundation whatsoever.
The decisions of this court are plenty and ample.
Well, the subject that state laws were to carry out for the purposes of the great federal statutes for Sherman Act which are not inconsistent ought to be applied.
And then that is the law.
Authoritatively the Sherman Act said that our law is designed to supplement, not disgrace federal law.
There is no preemption here, expressed or implied, there is no conflict nor as any court found one.
Judge Waterman says, there is a necessity for uniformity or there was no inquiry into the state statutes to determine whether there was.
We have listed the state statutes and briefly summarized, they are the same as the Sherman Act.
Those states that have adopted it.
So the decision, for example, in the Continental Airlines case covers that.
Justice Mr. Justice Douglas : Has the petitioner left baseball?
Mr. Arthur J. Goldberg: Pardon.
Justice Mr. Justice Douglas : Has the petitioner left baseball?
Mr. Arthur J. Goldberg: Yes, he left -- he left now.
Justice Mr. Justice Douglas : Is the case moot?
Mr. Arthur J. Goldberg: No, it's not because the 70 season, is the season where he has right to recover damages because he returned later and he also has right to decide if he wants to go to Minor Leagues, or Japan which are subjected to the same rules.
I will say one word, I should take a few more minutes of my time and comes off of rebuttal.
Chief Justice Warren E. Burger: Your rebuttal time is used up.
Mr. Arthur J. Goldberg: About, yes.
About the --
Chief Justice Warren E. Burger: Excuse me.
Your time is completely consumed but we'll extend it three minutes and enlarge yours three minutes Mr. Potter.
Mr. Arthur J. Goldberg: There is nothing too bad to the baseball argument that a new found affection for the collective bargaining and the labor act.
I share that affection, in fact, I shared it for many, many years.
Under the decisions of this court, this is hardcore violation of the Antitrust law.
This is a group boycott and blacklisting, all of this under the rules are obligated not to deal with a player, if he is on a reserve list, he is blacklisted not only here but in Mexico and in Japan.
And this is the most obvious restraint of trait known to man.
I'll put a simple illustration.
As Your Honor is well know, I once represented the steelworkers.
Let me put a proposition.
Suppose the steelworkers union, they would never do this, agreed with US Steel, that if a man signed up, he had to work for US Steel all his life and if (Inaudible) employed him and he left.
If (Inaudible) employed him, US Steel will not supply parts for their fabricating or steel for their fabricating operations.
Is there any doubt in anybody's mind that would be a per se violation?
Not at all.
Finally, so there is nothing to this labor exemption.
As the court said recently, Court said in Pennigton, Justice White's opinion.
You cannot just say conditions of the employment wages, you have to interpret the terms.
This is perplexed to be condition of employment, servitude is not a condition of employment nor a slavery.
Can you conceive any union being charged with a failure to bargain because of this?
I cannot conceive that.
Furthermore, this goes beyond the bargaining union, the opinion, Justice Brennan, that you just wrote, affirming Pennigton because it covers the Minor Leagues and it goes beyond that.
So it gets out of the bargaining union, and for all these reasons, I would say that none of the arguments have any basis.
Mr. Flood was the victim of a reserve clause which in my view violates all of the Antitrust Statute.
Chief Justice Warren E. Burger: Mr .Potter.
Mr. Paul A. Porter: Mr. Chief Justice and may it please the court, I wish to take about five minutes, I represent the respondent Bowie Kuhn, Commissioner of Baseball who was the defendant below on the count of one, and that was the Antitrust law.
Mr. Holmes then will discuss the issues in the case, and totally what we all agree is the central issue.
Mainly, that this litigation involves basically a labor dispute.
Now the Commissioner of Baseball serves for a term of seven years, for odd plenary powers, both in administrative and quasi-judicial nature to preside over the institution of professional baseball.
His first point, fundamental function is to maintain the integrity of the sport on the playing field and public confidence and the honesty of the game.
He has the authority under the rules of baseball, to take whatever action in his judgment is in the best interest of baseball, and he has acquired on frequent occasions to evaluate under that standard and way in the interest of players and perhaps their fans alike.
Now baseball as it has been recognized by this court again and again, is a unique structure, primarily bottomed on responsible self-government.
The Office of the Commissioner as we all recognized, beginning the (Inaudible) was established to police the honesty of this court.
Since it is developed into institutional apparatus to reconcile many minor and major issues in appropriate administration and the structure as the whole.
Justice William J. Brennan: Well, Mr. Porter is the structure of other sports different to that football, basketball?
Mr. Paul A. Porter: Not presumably Mr. Justice Brennan.
May have copied including the reserve systems, essentially the same as structure and the pattern as baseball.
Justice William J. Brennan: Yet they come within the application of the Antitrust law?
Mr. Paul A. Porter: Well it is never been challenged expect in Radovich.
They have settled a number of cases as Mr. Hoynes will develop.
The Spencer Haywood case is a notable exception.
And they have been living on the brink, I think.
They recognized it?
Justice William J. Brennan: You are not making an argument for uniqueness of baseball and and respective instructions.
Mr. Paul A. Porter: Indeed we are.
Justice William J. Brennan: You are.
Mr. Paul A. Porter: Indeed we are.
Yes Sir, and I can develop that if time is permitted where we have spent 25 percent of our revenues for player development, major league revenues.
Now the other sports have their forms as per the college and there are many other distinctions.
Now, the Commissioner because of his neutral position has no participation in the bargaining that has gone along with respect to the reserve system.
Now he testified in the District Court that this system was not a fossilized system, engraved in Habris (ph) v. Stone -- it was subject to changes and modifications and indeed it has been changed and modified.
The commissioner also gave important testimony on two particular areas that I would direct your attention to.
Number one; that without some continuity of employment between clubs and players, the relative equality of competition and the honesty of the sport would be seriously impairing.
I would respectfully direct Your Honors attention to the Commissioner’s testimony which is summarized in our Appendix.
Justice Byron R. White: Does this go to whether there would be a violation of the antitrust laws rather than to coverage?
Mr. Paul A. Porter: Well, I think that Mr. Justice White this is a labor dispute.
It's a bargainable issue has Judge Cooper found as I think the Second Circuit and Judge Cooper said that all evidence have not been fully exhausted in the bargaining process and indeed as Mr. Hoynes will develop this issue was on the bargaining table while in the Toolson, while this litigation was brought by the players union.
Also I would direct your attention finally to the Commissioner’s testimony exhibiting (Inaudible) which is Exhibit A found in Page 407 of the appendix.
Justice Byron R. White: I beg your pardon you just said this litigation was brought by the players union?
Mr. Paul A. Porter: Oh, it was really financed by the players union and indeed that's conceded in this record.
One final point I would like to make inspite of --
Justice Byron R. White: Are they really saying this is their law suit not --
Mr. Paul A. Porter: Absolutely.
And inspite of all the record that we hear here about this being a per se violation, and the trial record below with exception of the petitioner Mr. Flood all the witnesses in support of Mr. Flood's case, testify that some form of reserve system was essential.
And I will not consume my time as consumed Mr. Chief Justice.
Chief Justice Warren E. Burger: Mr. Hoynes.
Argument of Louis F. Hoynes
Mr. Louis F. Hoynes: Mr. Chief Justice and may it please the court.
I am counsel for the National League and I here represent the 24 Major League Clubs and the two Major Leagues.
The issues presented here are--
Justice Byron R. White: Is your position that baseball is not commerce?
Mr. Louis F. Hoynes: No, it's not my position that baseball is not commerce Your Honor.
I think that has been well recognized.
Indeed it is recognized by the Toolson decision.
The issues are here much broader than Curt Flood’s particular situation which has been described by Mr. Justice Goldberg.
This is fundamentally in our view institutional litigation concerting the normal operation of baseball’s basic fundamental and historic rules.
And the real protagonists here are suggested by Mr. Justice Brennan's question few moments ago.
The real protagonists are the players union, the Major League baseball Players Association and the Major League clubs that I represent--
Justice Potter Stewart: Does the record show us anything about the union?
Mr. Louis F. Hoynes: The record shows in very great detail Your Honor as does the opinion of Judge Cooper devoted a good portion of his opinion to tracing the effectiveness of bargaining, the effectiveness of the union--
Justice Byron R. White: It's extent numbers of players or --
Mr. Louis F. Hoynes: Yes all of the players in Major League baseball really are members of Players Association.
They have been association that has been recognized by the clubs as the formal collective bargaining agent for the football players.
And all of the terms and condition of employment of a Major League Baseball player are in fact on the table on a more or less constant basis --
Justice Potter Stewart: There are many NLRB proceedings involving the relationships between the clubs and this --
Mr. Louis F. Hoynes: Well.
There has been no dispute over the propriety of their representation.
However there have been a couple of unfair labor practice charges that have been brought and processed by the NLRB, and the NLRB of course asserted jurisdiction and that point is not debated by either side.
It's part of the workings of Major League Baseball as we know it today have known it for sometime.
Justice William H. Rehnquist: Your both proceedings you're referring to are the ones that are by the umpires.
Mr. Louis F. Hoynes: No, I was referring to proceedings involved in the Major League Baseball players association.
Some of the dispute at the beginning of this year on the question of the relationship between television revenues and bargain on the pension plan.
There was a disputes as to the extent to which we were required to disclose certain information.
NLRB involved itself in working that matter out, complaint was issued and so forth.
Justice Byron R. White: Would you be taking the same position that the plaintiff here were a minor league player?
Mr. Louis F. Hoynes: It's a player for Minor league player?
Your Honor, I would not be able to say to you that bargaining directly representing the Minor League Players was being carried on, but the Major League Baseball Players Association certainly has bargained with the interest of the minor league players in mind.
Indeed many of the grievances that have been brought before.
Justice Byron R. White: The players aren't -- the Minor League Players at terms aren't settled by the bargaining between them?
Mr. Louis F. Hoynes: Bargaining with the Minor League players directly?
No, there is no direct formal representation by the Minor League Players.
That does not mean they are unrepresented however, I suggest that their interest as part of the --
Justice Byron R. White: So then your position would not be the same if this is a point on the plaintiff.
Mr. Louis F. Hoynes: Well at my position would be the same Your Honor.
I simply would not be able to point to the direct one to one relationship between a formal bargaining representative and with that particular players I can with the Mr. Flood, it was clearly represented and a member of the organization but I would still argue Your Honor even if the Minor League player --
Justice Thurgood Marshall: Mr. Hoynes, how far is this representation of Flood Curt.
For example, did the owner consult with players association about this movement?
Mr. Louis F. Hoynes: I mean, as far as the assignment of Flood's contract?
Justice Thurgood Marshall: Yes.
Mr. Louis F. Hoynes: No that contract assignment took place under the rules which themselves were the subject to bargaining.
Justice Thurgood Marshall: Well, how much representation Flood get from this outfit?
Mr. Louis F. Hoynes: Well, no one--.
Justice Thurgood Marshall: As to this trade which is the basis of this suit, now what position did the union take on that?
Do you call it a union?
Mr. Louis F. Hoynes: I call it union Your Honor.
Justice Thurgood Marshall: Well what position did the union take on that?
Did they object?
Mr. Louis F. Hoynes: The Union after the transaction took place, conferred with Mr. Flood as I understand it and ultimately agreed with him to finance the cost of his litigation and as I was about to point out, it is quite transparent I believe from the reading of the record that the Players Association, the Players Union has in fact controlled this litigation from beginning to end.
Justice Thurgood Marshall: I understood that, the union and management what they were interested in is non-litigate, is that right?
Mr. Louis F. Hoynes: We certainly are interested in not litigating Your Honor, we believe that--
Justice Thurgood Marshall: What if negotiation was done between this union that protected Flood?
Mr. Louis F. Hoynes: Well, when the law suit --
Justice Thurgood Marshall: What if anything before the law suit?
Mr. Louis F. Hoynes: No representations by the union were made to us --
Justice Thurgood Marshall: That’s normal?
Mr. Louis F. Hoynes: Seeking any --
Justice Thurgood Marshall: Is that normal in union management relationship?
Mr. Louis F. Hoynes: Your Honor, I believe it is during the pendency of the collective bargaining agreement.
These rules were part of an arrangement and bargaining was not to take place until a subsequent period.
The transfer was entirely in accord because of arrangements.
Justice Thurgood Marshall: Now the union, which says the management, you can pick up a man and throw him out the door without any recourse.
That's a union?
Mr. Louis F. Hoynes: Your Honor I don't believe the unions ever agreed to that.
I don't think that what happened with Mr. Flood.
Justice Thurgood Marshall: Well, did the union agreed to the bargaining -- to that paragraph which is under attack here, the reserve clause?
Mr. Louis F. Hoynes: The reserve system is not simply a paragraph but a number of inter-related rules--
Justice Thurgood Marshall: Agreed to by the union?
Mr. Louis F. Hoynes: I believe that's right Your Honor – I beg your pardon, with the management.
Justice Thurgood Marshall: Is there anything in the record that shows that?
Mr. Louis F. Hoynes: Well, your honor there are the collective bargain agreements in the record.
Justice Thurgood Marshall: Is there anything that shows that the union which you call a union agree to these provisions?
Mr. Louis F. Hoynes: Your Honor, a collectively bargained agreement is an agreement signed obviously by the union and by management and all of the major league rules where encompassed by that agreement.
I can't think of a plainer way to demonstrate it.
Justice Thurgood Marshall: As far as the union.
Mr. Louis F. Hoynes: Well, the union Your Honor is I think having participated in the bargaining on management side for the last several years, has made remarkable gains with respect to player club relationships.
Justice Thurgood Marshall: What has it done concerning individual players’ relationships?
Mr. Louis F. Hoynes: Well the union is --
Justice Thurgood Marshall: Well, I say nothing.
Mr. Louis F. Hoynes: No, I would not say nothing.
Justice Thurgood Marshall: Then wouldn’t you say under reserve clause there was no room for bargaining?
Mr. Louis F. Hoynes: No, I certainly would not say that.
I would say that the Reserve Clause itself, the very core of the Reserve Clause is a subject admitted by both sides, a mandatory subject of bargaining and something about which bargaining was going on when interrupted by the pendency the filing of this lawsuit.
And it is back to that form Your Honor that we believe this matter should be remitted.
Justice Thurgood Marshall: You mean back to the union?
Mr. Louis F. Hoynes: Back to the collective bargaining table.
Your Honor, yes.
Justice Thurgood Marshall: Well even though the union is not protecting the individuals?
Mr. Louis F. Hoynes: Well the union is protecting the individual.
Your Honor, this union is very well.
Justice Thurgood Marshall: How the union is protecting this individual whose name who is the petitioner Curtis C. Flood?
Mr. Louis F. Hoynes: Your Honor, the union bargains obviously for future benefits and what's at stake here is the shape of baseball and its employee relations really for the future.
Mr. Flood is -- I think there is no question about that.
He is retired from Baseball now.
He is through with Baseball he --
Justice Thurgood Marshall: Would you call it voluntary, would you?
Mr. Louis F. Hoynes: Well, I would call it voluntarily retired at this point, Your Honor.
He was playing for Washington and felt that he no longer could play satisfactory to his standards and he had other problems as well and he left the country.
We were most eager to have the employee during the pendency of this lawsuit.
We told his counsel repeatedly that we would make no argument whatsoever that the case had been mooted and that we wanted to see Curt Flood playing and living his normal life and litigation could go forward.
If they would not hear one word from us that there was something inconsistent about him playing and litigating.
We made no threats.
It was suggested constantly that this be done and in 1971 Curt Flood decided he would return to baseball.
His play was of the caliber that as a proud man, his play was of the caliber that was not satisfactory to him.
He had other financial business problems which caused him to leave to both the Washington area and the United States.
We regretted that very much.
We would have been delighted to see Mr. Flood continue a long and prosperous career.
Justice Thurgood Marshall: This isn't in the record?
Mr. Louis F. Hoynes: None of which is in the record Your Honor.
Justice Thurgood Marshall: He is playing with Washington or any of his other business?
Mr. Louis F. Hoynes: Well, the record was closed before he began to play for Washington Your Honor, yes.
I think that Justice Goldberg adverted to it and I am sure you could take notice of that fact.
As I had mentioned before, it is our position that the players union is entirely in control of this litigation, and that it is concerned less with remedying any alleged wrong that may have been performed on Mr. Flood, that it is trying to reorganize the employment relationships in professional baseball.
In other words, the union is after a larger game here.
Mr. Flood's testimony itself was isolated from the rest of the case presented, on behalf of petitioner.
He testified that he would like the entire system to be torn apart, and like every ball player to be free to negotiate with any club of his choice.
While all of the other witnesses testified on behalf of petitioner, limited their testimony to certain modifications, that they suggested in a reserve system.
All assuming that some continuity of player control, some form of player reserve system would in fact be necessary.
This testimony represented a repudiation of really Mr. Flood's position, and left him a forgotten him for the reminder of the case.
In fact no evidence at all was offered on the damages, which Mr. Flood's complaint indicated he had suffered to his outside business interest in St. Louis, not a shred of it was ever offered on that matter.
That's the union as I have said, was after a larger game.
It intended to subvert the collective bargaining process in baseball to obtain games which it had not yet achieved at the bargaining table, outside of the bargaining table, and to unravel the very fabric of past collecting bargaining, all of which interwoven intimately with the reserve system.
In order to accomplish this purpose, the petitioner has attempted to persuade this court to move radically in two new directions.
First to change the law abruptly and totally, by overruling the narrow and well confined precedents of long standing, which now indicate that baseball is not subjected to the Antitrust laws.
And second to declare illegal, per se illegal, I believe according to their briefs, baseball's historical reserve system as the trial court found the corner stone of the game, and to act in effect as a compulsory arbitrator in an employee-employer dispute, about the terms and conditions of employment in baseball, in fashioning a new system.
A trial was demanded to --
Justice Byron R. White: I would say at this point would you comment as to why baseball moved to extend the -- why did it move into the draft system in 1965, to the new player?
Mr. Louis F. Hoynes: Your Honor, the adaption of the draft system is simply one more step, and a number of steps that baseball had taken over a period of years to try to equalize competition on a playing field, preceding the draft rule there were rules about bonus issue, you may remember this.
If a bonus of a certain size was awarded to a player, that player must serve immediately on a major league roster.
All of these were efforts to prevent the clubs with the largest accumulations of wealth in being able to attract the most skillful young ball player, and none of those system soon --
Justice Byron R. White: The bonus system itself didn't come into effect until fairly recently?
Mr. Louis F. Hoynes: I beg your pardon?
Justice Byron R. White: When are the first bonuses paid?
Mr. Louis F. Hoynes: Well I think the first bonuses were probably of large amount were paid in 50s.
Sometime before the rule or the 65 free agent draft, I might note on the free agent draft subject that all of the other sports have free agent drafts.
In fact, in the other sports the rights to negotiate with a player are perpetual.
Once he is -- an amateur is drafted, he can negotiate only during his lifetime, with the club that drafted him, and in baseball the negotiating rights are only of 6 months duration, and if a player doesn't sign with the club that drafted him, he maybe reselected by another club.
Justice Lewis F. Powell: Mr. Hoynes what are the principle differences between the standard National Football League contract, and the type of contract which Mr. Flood had?
Mr. Louis F. Hoynes: Well, Your Honor, there are number of differences in the employment relationship between football, and baseball, and a number of differences in the sport, the character of the sport themselves.
An obvious difference that receives much publicity is the option rule in professional football.
A system by which a player can declare at the beginning of the season that he desires to move to another pastures at the end of that season, he then plays an option -- they call like it the (Inaudible) option.
At the end of that additional year, he is technically free to seek employment by another club.
The rule has another provision that says that any other club that signs that player must compensate to the club from which the player came, either in the amount measured by money players, draft choices, what have you, satisfactory to that former club or if a new agreement can be reached, that the commissioner will establish compensation.
The Major League Baseball Players Association is announced this arrangement as essentially a fraudulent one, and in fact there's been a little mobility historically in football, and if one examines the collective bargaining process going on in football, one will see that the football players themselves denounced the arrangement as being essentially a cosmetic one, and not one affords them any real freedom of choice and then seeking their employment.
Other differences in employment relationship in football, and baseball, rather than football, the management may establish the rules of the game.
In baseball our collective bargaining agreement expressly recognizes the duty of the major league clubs before enacting any rule or involving in any way, player benefits or player rights to negotiate that rule with the players.
Also in baseball, there is an grievance procedure which has been agreed to with the players association, one that’s un-parallel by any other sport which places all grievances about club and player matters except those involve the integrity, which are reserved for the commissioner but the garden-variety grievance goes before, an arbitrator external to the game, a man now named Lewis Gill former President of the American Academy of Arbitrators jointly selected by the union and by the clubs.
He has handled dozens of grievances in baseball, makes final and un-appealable decisions with respect to them.
And finally with respect to the differences in the character of the game, games themselves football for example, and baseball, football is able to reach out and plug from the college campuses players are ready to play professional football, already nationally known and skilled.
Baseball has no such alternative, baseball has an elaborate minor league system, in which it develop its own players, and to which it devotes approximately 25% of the major league gross revenues.
Something over a million dollars per year per club, poured into the minor leagues to keep the flow of players, to keep this player development flow operating.
There isn't any sport, any professional sport, that has anything that even proximates that sort of an arrangement, or those sort of expenses and difficulties of player development.
For all these reasons, we believe and the Players Association recognizes and they're bargaining with us, that the experience in other sports is, well not dissimilar from baseball's really, nevertheless neither is it a good guide for the baseball world.
There are important differences in the businesses and we feel and as I've said the players union feels too that we must work out our own relationships in the light of realities of the baseball business, not in the light of what some other sport may do, or some arid principles, but on the practical level, at the bargaining table, by the people who must live with results of their labors, the players and the club owners.
Justice Thurgood Marshall: Why they came to this lawsuit?
I'm using your word.
You said --
Mr. Louis F. Hoynes: You're expressing a fact Your Honor.
Your Honor bargaining had just begun in the core of the reserve system and like any labor union they think they see an easy way to achieve a position of predominance, a better position, more clogged at the bargaining table, they seize the opportunity.
I think there is little doubt, but what the owner's position here would be in something of the shambles.
If this Court would rule that the reserve system is per se illegal.
As a matter of fact, I don't know how bargaining could proceed at all.
I don't know what what we would do at the bargaining table because presumably, not only the present system but every modification there too, everything that we might have work out in this area with the Union would be forbidden by the Antitrust laws.
And even if only our present system, not speaking of other systems were to be declared illegal, still there would be a third party at the bargaining table and that would be the court and the Players Union I think would be able to use that extremely effectively.
We would been buying a new reserve system every time we bargained and that the option would be that we would be faced with more litigation and wrapped with certainty, that probability that the arrangements would be illegal without their acquiescence.
I think this kind of intrusion into a collective bargaining process is not something that the courts commonly do.
It's something that's quite inconsistent.
Justice Byron R. White: Do you think this issue here whether the Reserve Clause violates the antitrust laws.
I didn't know that.
The issue here was whether you're exempt.
Mr. Louis F. Hoynes: Well, Your Honor, I think the only factual issues presented here, obviously the broader issue is Toolson exemption which we believe reaches to the entire structure of the game, not only reserve system.
But Mr. Flood and the union here are complaining only about the reserve system and --
Justice Potter Stewart: The merits of the controversy were never reached either in the District Court or the Court of Appeals.
They declined it -- both courts declined to reason the merits because they held that organized baseball is not subject to the -- neither the federal or the state Antitrust laws and it's that issue that's now before this Court is it not?
And if we should decide that the Court of Appeals and the District Court were wrong in that view, then the normal practice be for this Court to remand the case to the District Court for trial of the case on the merits.
Mr. Louis F. Hoynes: It's quite right Your Honor, but I think there are other levels of decision here too, the labor matter that we're discussing that I'm now arguing, that's not --
Justice Potter Stewart: Well that's -- but that just is a -- that bolsters your argument I gather that this is not a matter for the Antitrust law.
Mr. Louis F. Hoynes: That's right Your Honor.
It's a separate distinct reason for the use of result as well.
I might also comment as in --
Justice Byron R. White: I believe that you could lose the issue here, that is here on coverage and still win on the reasonableness of the Reserve System under the Antitrust law.
Mr. Louis F. Hoynes: Yes, I presume we could also lose the issue here on broad coverage and prevail on the issue that no suit can appropriately be brought by member of the collective bargaining organization and matter which is essentially a matter of collective bargaining.
Justice Byron R. White: Do you think there is something unique in the union representing the great range of baseball players, all of them being neglected bargaining agent for all of the players in a unit?
Mr. Louis F. Hoynes: No Your Honor I don't.
Justice Byron R. White: But you don't report to reach the question of salary?
Mr. Louis F. Hoynes: No, the union has expressed in its dealing to the best that it does not wish to bargain except to set minimums and other parameters.
It is suggested that we would like to bargain perhaps not only by minimums -- at flow, but but perhaps the minimums that relate to some very seniority levels as well, but it does not wish to intrude in the individual negotiations in the contract--
Justice Byron R. White: The unions usually do.
Mr. Louis F. Hoynes: That's right Your Honor, but the range of --
Justice Byron R. White: And why it doesn't adhere?
Mr. Louis F. Hoynes: It certainly could Your Honor.
That would be a mandatory subject if the union were to raise -- put that issue on the bargaining table, we would have no choice but to deal with it.
Justice Byron R. White: And the same with you?
You put it on the bargaining table.
Mr. Louis F. Hoynes: We would have put it on the bargaining table as well.
I think both sides today have felt that it is not in the interest of the individual players or off the process to --
Justice Byron R. White: That's just because players are too different one from another for one union to represent.
Mr. Louis F. Hoynes: I think that that is part of the answer Your Honor, yes.
It's part of the answer.
Justice Byron R. White: What's the rest of the answer?
Mr. Louis F. Hoynes: Well, I think that rest of the answer is that now we know the players are different but their relationships with their clubs maybe different as well.
Justice Byron R. White: You're saying the same thing.
Mr. Louis F. Hoynes: It's feature of the same thing, an aspect of the same.
There is a wide range obviously of talent, of desire and that's felt -– that's expressed more appropriately realized in individual bargaining.
Justice Byron R. White: And while the union feels that if in a new field apparently, that you and the union really shouldn't set salaries which is usually the subject of collective bargaining.
You should be able to agree on a reserve system that applies the same to everybody.
Mr. Louis F. Hoynes: Well, Your Honor--
Justice Byron R. White: Even though the players are different one from another and their relationships are collaborative--
Mr. Louis F. Hoynes: We don't think it will be practical to have a different Reserve System for each individual player, such as you can't differentiate salaries.
But that does not mean that a Reserve System must necessarily, monolithically apply to all players.
There could be a small number of variations in the reserve system, again depending upon seniority or some other factor.
Those kinds of suggestions have been made and they certainly will continue to be on the table.
But an individual Reserve System for each player having not negotiated out separately is little difficult to understand.
I think that would not be workable.
That's not to say that individual players and clubs can not negotiate such things as long term contracts and so on which go a long way toward modifying the reserve system.
That can be done and has been done.
And that any player is free to do with his club.
There is certain precedent for that one.
Your Honor I'd like to briefly refer you to Jewel Tea and Pennington decisions which Mr. Justice Goldberg referred to.
As I --
Justice Byron R. White: Let's assume that for the moment that both players and management as they do say pay out as a collective bargaining issue.
That's going to be left to individual bargaining.
And then the owners among themselves agree on a range, on some maximums.
We will not pay anybody, no matter who it is, more than a $100,000 a year.
Mr. Louis F. Hoynes: But we certainly would not do that Your Honor.
Justice Byron R. White: Let's just assume you did.
Let's assume you did.
Because that's one of the suggested alternatives of course to a reserve system.
There going to have to be some maximums.
Mr. Louis F. Hoynes: Not one that we have suggested Your Honor.
That would be something that we would have to, I believe state a maximum, like state a minimum.
There is something that we have taken up with the Players Association and bargain.
If the association were to say, no we don't care to bargain--
Justice Byron R. White: Well, I take it then you wouldn't do that because you think that would be improper.
Mr. Louis F. Hoynes: I think it would improper Your Honor.
Justice Byron R. White: Such as violating the Antitrust laws.
Mr. Louis F. Hoynes: No, not all Your Honor, improper in terms of the labor laws.
Justice Byron R. White: Alright let's pursue that.
I just want to get your position clear.
If the owners agree on a max $100,000 a year, against the background where both labor and management had put it aside as a bargaining issue that, you say that would not violate the Antitrust laws.
If they (Inaudible) among the owners as to what they would pay their players.
Mr. Louis F. Hoynes: If this were put aside as a bargaining issue, you can't make something that is not a bargaining issue, which you can agree not to bargain about it.
Justice Byron R. White: Alright let's assume, put it the way you want.
You had agreed not to bargain about it.
Mr. Louis F. Hoynes: We had agreed not to bargain about it and the union thereby would have acquiesced in our setting such maximums.
And I believe we will be permitted to do so.
Justice Byron R. White: Only because of the labor exemption.
Mr. Louis F. Hoynes: Because of the labor exemption, because of the union acquiescence.
But the union could challenge that, put it on the bargaining table and at any time if disputed.
Justice Byron R. White: Because of the labor exemption, because of the basic exemption to baseball Antitrust laws. Of course right?
Mr. Louis F. Hoynes: That goes without saying Your Honor.
That goes without saying.
I'd like to call the Court's attention if I may briefly to a matter not mentioned in our briefs simply because it has not been published by that time, that is a Yale Law journal article by Professor Wiener and Mr. Jacob's title Antitrust Principles and Collective Bargaining by Athletes in 81 Yale Law Journal number one, which agrees completely I believe with the analysis which we've advanced in our brief and suggests that the Antitrust issues are perhaps even irrelevant here.
The labor policy and its supervening.
Justice Byron R. White: You are suggesting that this judgment below would be upheld on the grounds not reached below?
Mr. Louis F. Hoynes: Your Honor I'm suggesting that the judgment ; number one, that the judgment below be upheld on the grounds reached below, but alternatively that there is an additional, powerful and we think quite correct ground, which the courts below felt that not necessary to reach to a labor policy which offers an alternative reason for --
Justice Byron R. White: Do you think the record is adequate for that ground?
Mr. Louis F. Hoynes: I think the record is quite adequate.
Justice Byron R. White: You would oppose the remand.
I presumably disagreed with you on the assumption of the -- initial issue on which it was decided below, you would – would you prefer that it would be remanded, the labor exemption issue to be dealt with by the courts below per se?
Mr. Louis F. Hoynes: Your Honor I think it would not be inappropriate to remand that for such findings as you might feel that would be appropriate or not inconsistent with your opinion.
I do believe the record has been fully developed on that point however.
I would mention only briefly that the law which Congress has decided is one which I'm sure you're aware and I will elaborate the point.
Congress has accepted the invitation of this Court repeatedly given as examined the baseball system repeatedly.
Many bills have been introduced, many hearings held.
The conclusions of those committee reports universally within the effect that the baseballs reserve system was something that was of that substance of the game and it was needed to be preserved.
Whenever Congress has acted, it has extended an Antitrust exemption.
It has never in any way limited one in professional sports.
The matter is now under active consideration by Congress which has flexible legislative power.
It's not limited to applying only the garden-variety antitrust laws.
It can root out evils as it sees them with its flexible legislative power and deal with them quite precisely.
And if there is any regulatory policy governmental regulatory policy of baseball should be adopted and Congress as this Court has repeatedly observed is the proper body for adopting that.
I would like to mention as well that the talk of stare decisis, as this Court has said the last word on stare decisis in the Toolson and Radovich opinions, again I need not repeat what this Court had said, except the note that the baseball community has continued to operate under those rules, grown and invested more and that others reliance interest recognized in the 50s or have multiplied or even greater weight now.
Thank you Your Honor.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.