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Rearguing the Curt Flood case

May 24, 2013, 9:25 AM EDT

Curt Flood

Supreme Court Justice Sonia Sotomayor’s baseball bonafides are beyond reproach. A big Yankees fan from youth. The judge who effectively ended the strike in 1995. She knows her stuff.

So she was the perfect choice to sit in on a mock oral re-argument of the famous Curt Flood case, which sought to end the reserve clause and grant the players free agency.  Flood lost that round, of course, but it paved the way for the institution of free agency a few years later.

NPR has the story about it here. This exchange made me chuckle. Remember: they’re pretending it’s 1972 and the consequences of free agency are yet unknown:

Sotomayor, in mock horror, said that if the antitrust exemption were abolished and owners could no longer collude to set player salaries at will, the Yankees might have to pay Reggie Jackson $1 million a year!

Worse, replied Karlan, would be if the Yanks paid Alex Rodriguez a quarter of a billion dollars not to play.

“I can’t imagine such a thing!” answered a shocked Sotomayor.

She also gets a dig in at the Red Sox’ World Series drought, which was probably fun for her.  It’s also clear that if Sotomayor was on the court in 1972 she would not have joined the majority in upholding the reserve clause.  Too bad she wasn’t.

  1. skids003 - May 24, 2013 at 9:31 AM

    Yeah, she’s a real laugh a minute.

    • aceshigh11 - May 24, 2013 at 9:51 AM

      Hey, look everyone! It’s a bitter, angry Republican.

      • skids003 - May 24, 2013 at 10:50 AM

        I guess that makes you an all knowing all seeing wizard of smartassopia.

    • koufaxmitzvah - May 24, 2013 at 10:36 AM

      Remember when Sandra Day O’Connor said, when discussing Bush v Gore, “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”

      What was that… 3 weeks ago? I laughed so hard, it still hurts to breathe.

      Good times.

  2. Liam - May 24, 2013 at 9:44 AM

    Really hoping we get a post for Mr. Zimmerman’s 72nd birthday today, Craig.

  3. cur68 - May 24, 2013 at 9:44 AM

    Saw her on The Daily Show. Boring as heck, but she seems a good enough person over all. I liked what people said about her and her opposition to Scalia. She seems to come down on the decent side of most issues, and when she doesn’t, there’s a damn good reason. Can’t fault a baseball fan for supporting players and CERTAINLY can’t fault a Supreme Court Judge from getting the call right in retrospect.

    • Francisco (FC) - May 24, 2013 at 1:01 PM

      At least SOME people try to get the call right after the fact.

    • aiede - May 24, 2013 at 4:22 PM

      Bud Selig is opposed to the Supreme Court, because he prefers the human element in trial courts and thinks that all those appeals and reviews just slow down the game too much.

      • cur68 - May 24, 2013 at 5:08 PM

        I wouldn’t be the least surprised.

  4. jm91rs - May 24, 2013 at 10:08 AM

    I suppose it’s a fun little exercise, but knowing that baseball does not destroy itself with free agency makes it awfully easy to say she would have supported it back then.

    • dlf9 - May 24, 2013 at 10:31 AM

      I’d like to think that whether or not baseball would destroy itself should have had no bearing on the Court’s decision. The Flood case was pretty simple: should the Court overturn the Federal Base Ball Club decision from 60 years earlier in light of the intervening changes in interstate commerce clause interpretation? The business merit of free agency was not before the Court.

      • jm91rs - May 24, 2013 at 10:52 AM

        I understand the difference of arguing the good of the game versus the letter of the law, and if it were 1972 and you wanted to argue that point I’d agree with you. The fact that a baseball lover is sitting on a mock panel 41 years later, and baseball is as successful as it has ever been, makes it a very different decision thanks to the benefit of hindsight being 20/20.

      • manchestermiracle - May 24, 2013 at 10:57 AM

        Or perhaps her approach would have been to champion a free-market no matter the business venue. Anti-trust exemptions, along with tax exemptions, should be much more difficult to obtain than they historically have been.

      • tanzkommandant - May 24, 2013 at 11:49 AM

        Her very appointment was based upon upholding non-free market, big government policies. She’s a shill for the current administration & does her job appropriately as such.

      • koufaxmitzvah - May 24, 2013 at 12:58 PM

        “Her very appointment was based upon upholding non-free market, big government policies. She’s a shill for the current administration & does her job appropriately as such.”

        Wait a minute… What’s Scalia doing here?

        By the way, that free market capitalism you crow about has cases of bottled water going for $40 in Oklahoma.

        Good Times!

      • clemente2 - May 24, 2013 at 4:34 PM

        Oh, Great FSM, tanzcommandant has me going today.

        This sort of idiocy is beneath this blog. There is no evidence, none, that either party, when in power, has been in favor of less government in any meaningful way for more than 60 years, nor that either party is more or less committed to the current balance of ‘free markets’, ‘regulation’, and ‘government’. You are not in favor of a ‘small government’ when you have ‘defense spending approval’ spot-welded to your forehead. Nor are you in favor of ‘small government’ when you absolutely refuse to participate, except by making snide, inaccurate and misleading characterizations of the attempts, in discussions about reining in health care spending, thereby letting the whole thing continue to bloat.

        I am uninterested in the propaganda sent out by both sides. I am interested in the results. What I see is a fight between the oligolopy that runs this country more and more, and the persons who take some lesson from the ‘free market’ 1870s to 1910s that led to the progressive movement.

        As to this administration, it is a sad sign of how public discourse has drifted in the oligorps’ favor that a centrist bureacratic manager like Obama is seen as a leftist threat. He could easily be in Eisenhower, Nixon, or Ford’s administrations.

  5. billybawl - May 24, 2013 at 12:10 PM

    If they’re pretending it’s 1972, a baseball fan would know that Reggie Jackson was an A’s star. Or maybe she’s already thinking that the demise of the reserve clause would allow an ambitious ship builder to assemble an all star team through free agency.

  6. ezthinking - May 24, 2013 at 12:12 PM

    Ted Turner’s comment from the time kind of sums up the whole situation from the owners perspective:

    “Gentlemen, we have the only legal monopoly in the country,
    and we’re fucking it up.”

    Followed by this quote which sums up the real world’s perspective:

    “Fellas, this is the 20th century. You can’t get anybody,
    drunk or sober, to agree that once a fella goes to work for the A&P,
    he has to work for the A&P the rest of his life.”

    - MLB attorney John Gaherin

    Play ball.

  7. therealcurtfloodjr - May 24, 2013 at 2:26 PM

    Interesting piece, Craig.

    You know, maybe, just maybe, had Joe DiMaggio, Mickey Mantle, Yogi
    Berra, Whitey Ford, Casey Stengel, and the rest of Justice Sotomayor’s beloved NewYork Yankees, had the courage, selflessness, or an altrusitic bone in their body to actually have shown up at the US Supreme Court in support of my father; and testify in denunciation of the ‘Curse from Antietam;’ Reserve Clause—as Jackie Robinson and Hank Greenberg so bravely did–their jovial little reenactment party on Wednesday might not have been necessary at all.

    “But sometimes, she said, the question is not whether the decision was wrong, but whether this is the right time to overrule it.??” The “Justice” is joking, right? More waggish and puckish humor, I suppose? Well, I’m not amused. Nor are the three generations of my nuclear family, who still feel the painful reverberating effects from that Kangaroo Court’s ridiculously bogus, miscarriage of justice. The “the right time to overrule it?” Wow. She really should be ashamed of herself for saying something that unfair and galactically misguided. Flood Vs. Kuhn eviscerated a good and decent man and his family: Physically, psychologically, emotionally, spiritually, and, yes—financially. It gutted my dad in every conceivable human way possible. Nevermind the death threats, lifetime blackballing from ever working in Major League Baseball or any chance at Cooperstown. Thank you, stare decisis and Judge Sotomayor, well done!

    “Both sides were fighting for the preservation of baseball?” No, they weren’t. One side was driven by a woeful lack of imagination, and fueled by obcene, and unrepentent, greed. And the other side, by a deep-seated sense of principle, fairness, and faith that the United States Constitution might be worth the parchment it’s written on. But Bowie Kuhn and half the Supreme Court were in the pockets of the baseball club owners. You know it, Craig, I know it, and the good Justice Sotomayor knows it. And not only in kinship and spirit, because Justice Lewis Powell recused himself owing to his ownership of stock in Anheuser-Busch, which owned the Cardinals. What a coincidence.

    So what else is new in America? Not much in the way of social justice has changed. We bail-out banks, supposedly “too big to fail,” with the emergency, and stat! expedience, care and compassion we would in treating an injured infant. But who is there to bail-out the hurting, wounded and damaged families in the banks’ reckless wake? Not a soul. Flood Vs. Kuhn was no different.

    Curt Flood, Jr.

  8. therealcurtfloodjr - May 24, 2013 at 2:46 PM

    Apologies for this second posting, but want Justice Sotomayor’s quotes listed accurately.

    .Interesting piece, Craig.

    You know, maybe, just maybe, had Joe DiMaggio, Mickey Mantle, Yogi
    Berra, Whitey Ford, Casey Stengel, and the rest of Justice Sotomayor’s beloved NewYork Yankees, had the courage, selflessness, or an altrusitic bone in their body to actually have shown up at the US Supreme Court in support of my father; and testify in denunciation of the ‘Curse from Antietam;’ Reserve Clause—as Jackie Robinson and Hank Greenberg so bravely did–their jovial little reenactment party on Wednesday might not have been necessary at all.

    “But sometimes, she said, the question is not whether the decision was wrong, but whether this is the right time to overrule it.??” The “Justice” is joking, right? More waggish and puckish humor, I suppose? Well, I’m not amused. Nor are the three generations of my nuclear family, who still feel the painful reverberating effects from that Kangaroo Court’s ridiculously bogus, miscarriage of justice. The “the right time to overrule it?” Wow. She really should be ashamed of herself for saying something that unfair and galactically misguided. Flood Vs. Kuhn eviscerated a good and decent man and his family: Physically, psychologically, emotionally, spiritually, and, yes—financially. It gutted my dad in every conceivable human way possible. Nevermind the death threats, lifetime blackballing from ever working in Major League Baseball or any chance at Cooperstown. Thank you, stare decisis and Judge Sotomayor, well done!

    “But at the time, what both sides thought they were arguing about was ‘the very survival of baseball.’” No, that’s not what they thought. One side was driven by a woeful lack of imagination, and fueled by obcene, and unrepentent, greed. And the other side, by a deep-seated sense of principle, fairness, and faith that the United States Constitution might be worth the parchment it’s written on. But Bowie Kuhn and half the Supreme Court were in the pockets of the baseball club owners. You know it, Craig, I know it, and the good Justice Sotomayor knows it. And not only in kinship and spirit, because Justice Lewis Powell recused himself owing to his ownership of stock in Anheuser-Busch, which owned the Cardinals. What a coincidence.

    So what else is new in America? Not much in the way of social justice has changed. We bail-out banks, supposedly “too big to fail,” with the emergency, and stat! expedience, care and compassion we would in treating an injured infant. But who is there to bail-out the hurting, wounded and damaged families in the banks’ reckless wake? Not a soul. Flood Vs. Kuhn was no different.

    Curt Flood, Jr.

    • churchoftheperpetuallyoutraged - May 24, 2013 at 3:34 PM

      We bail-out banks, supposedly “too big to fail,” with the emergency, and stat! expedience, care and compassion we would in treating an injured infant. But who is there to bail-out the hurting, wounded and damaged families in the banks’ reckless wake?

      I’m sorry for everything your father went through, and agree that the glib comments made by Justice Sotomayor could and should have been worded differently; however, you do understand there’s a huge difference in the quoted statement above, right? There were global implications in the bank bailout that just weren’t present in helping the individual home owner. Also, let’s not forget that many people were as complicit in the housing problem as the mortgage lenders were.

    • rlj2170 - May 25, 2013 at 12:51 PM

      feel better now? take out some of those $500 words and you could have cut this down enough for all of us to enjoy

  9. therealcurtfloodjr - May 24, 2013 at 5:45 PM

    Global implications. You’re speaking of Libor scandel-ridden “global implications?” And you have proof of this? Documented proof?Accordinding to Mitt Romney, and many others in high finance, the banks should have been allowed to fail.

    • clemente2 - May 24, 2013 at 6:28 PM

      Romney was saying that to pander to the political base he needed to win a nomination. The ‘powers that be’ of all stripes were panicked, likely rightly so, about the whole she-bang. When you have to make decisions in advance with imperfect knowledge, a high risk of something occurring is the same as it happening. And you act accordingly.

      Read up alittle about the meetings, public and private, that occurred September 15-21, 2008. There are a number of good books on this. It means nothing to say from a hindsight position with no authority that ‘those banks should have just been left to fail’.

      Was it all implemented perfectly? No, people are human. And the Empire always sticks its fingers in things. The banks and investment banks and insurance companies probably should have paid a higher price (interest rate, options) for being saved. Learn for next time. But, Lehman was allowed to fail, and debates still rage about the costs borne by its employees and creditors caused by this ‘allowed’ failure.

      No one who had a responsibility for the economy at the time said what you say.

    • clemente2 - May 24, 2013 at 6:35 PM

      I am inclined to agree with one of your points further above that the help provided to homeowners also sucked into the burst bubble was at least of the wrong kind, and possibly insufficient. The fact that many real estate markets are strongly recovering, and new home construction is way up, in a period of 4-5 years, when viewed in contrast to the 34 year flat-line of the Japanese economy (which did try to make it not hurt for everyone, until just recently), gives some credence to the direction and amount of help that was provided.

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