A Well-Paid Slave (14 page)

The tenor of the meeting soon changed from whether the players would back Flood, to how.

Max Alvis of the Indians asked how quickly this could get into court.

Dick Moss, who had been taking detailed notes of the proceedings, said no earlier than the spring.

Jackson asked Flood if things would have been different if St. Louis had consulted with him about the trade.

Basically, yes.

Drabowsky said that the timing could not be better and that taking the reserve clause to court was preferable to a strike. His comment reflected the players' anger over the owners' refusal to modify the reserve clause during the joint study committee meetings or negotiations about the 1970 Basic Agreement. As the minutes of the meeting indicated, the owners had left the players with only two choices about the reserve clause: “(1) to take concerted action on the issue by withholding their services, or (2) to test the matter in the courts. As between the two, it was felt that the latter was a far less disruptive course of action, and therefore was preferable.” The players were not unified enough in December 1969 to strike over the reserve clause; they chose to let Flood do their striking for them.

Joe Torre of the Cardinals was the first player at the meeting to say that the association must back Flood. Torre knew all about being traded. Atlanta Braves vice president Paul Richards, a frequent union and Miller critic, had blasted Torre for his participation in the 1969 pension dispute. He wanted to cut Torre's salary $5,000 and take away his complimentary Cadillac. Torre refused to sign his contract. “I don't care if he holds out until Thanksgiving,” Richards said. Before the 1969 season, Richards traded Torre to the Cardinals for popular first baseman Orlando Cepeda.

During his one season as Flood's teammate in 1969, Torre bonded with both Gibson and Flood. “Knowing how entrenched Curt was in St. Louis, it didn't surprise me,” Torre said of Flood's decision to sue. An alternate player rep with the Cardinals and a mainstay on the union's negotiating team, Torre saw the necessity of Flood's lawsuit and never doubted Flood's sincerity. “I knew Curt didn't do something just for the sake of doing something. He did something because he felt very strongly about it,” Torre recalled. “He was a sensitive, personal, passionate person. And he just sort of felt violated. He was making a stand. He was certainly forewarned by Marvin Miller and Dick Moss that you may not play baseball again, and he understood that. He just didn't think someone should tell him that he has to go play somewhere.”

Bunning said the representatives needed unanimity.

Alvis said that unanimity among the player representatives did not necessarily mean that all the rank-and-file players would support Flood's lawsuit.

As their questions turned into commentary, the players excused Flood from the room and discussed with Miller how to explain their prospective decision to their fellow players, when to make the lawsuit public, and what effect the lawsuit would have on their labor negotiations with the owners. Miller said that it was up to him and the player representatives to educate their fellow players, but it was up to Flood when to make the lawsuit public. His lawyers would decide when to file. The labor negotiations could continue as planned.

A question then arose that had not been asked of Flood. If he won a large damage award, would he pay the association back for legal fees and expenses? And would he agree to such an arrangement in writing? Miller explained that the chances of Flood receiving any monetary award were almost none, but that he had not broached the subject with Flood. Miller left the room, found Flood in the hotel, and explained the players' request. Flood readily agreed to sign a written pledge to pay the association back if he was awarded damages that exceeded his legal fees. This may have seemed like a petty request by the players considering that Flood was the one risking everything, but the association's entire operating budget for 1970 was $195,000, and Flood's legal fees could run $200,000 to $300,000. When Miller returned to the room, he assured the players that Flood would sign such a document.

Miller then asked if there was anyone in the room who felt that the association should not assist Flood. No one said anything. Ron Brand made a motion to take all necessary action to support Flood. McCarver quickly seconded it. The player representatives voted 25-0 to pay Flood's legal fees—with all legal bills still subject to the association's approval— in exchange for the right to select his lawyer.

Flood was ecstatic about the unanimous show of support—all of which still remained a secret. He and the players posed one more question to Miller: Whom should they hire as Flood's lawyer? Miller assured them that he had an extremely prominent attorney in mind. He did not tell them that his choice was a former Supreme Court justice.

T
he nameplate on the door of his office read “Mr. Justice Gold berg.” It had been more than four years since he had resigned from the Supreme Court. His partners at the New York law firm Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison included former U.S. attorney general Ramsey Clark; President Kennedy's chief speech-writer, Theodore Sorensen; and a former federal judge, lead partner Simon Rifkind. Yet Arthur Goldberg preferred that they refer to him as “Mr. Justice.”

Marvin Miller called him Arthur. Before Goldberg was the U.S. ambassador to the United Nations, a Supreme Court justice, or the secretary of labor, Miller knew him as the brains behind the Steelworkers Union. From 1948 to 1961, Goldberg served as general counsel for the Steelworkers and the Congress of Industrial Organizations (CIO). Many people believed that he was more powerful than the Steelworkers Union's president. He argued Supreme Court cases, brokered the merger between the American Federation of Labor (AFL) and the CIO, negotiated with steel industry executives, and drafted legislation for members of Congress. He also worked closely with Miller.

As Miller rose from an obscure staff economist to chief economist and assistant to the Steelworkers' president, Goldberg raised Miller's public profile. He selected Miller (over Miller's immediate boss) as a member of the Human Relations Committee, which was designed to prevent another massive steel strike by addressing issues with management before labor contracts expired. When Goldberg left to become Kennedy's labor secretary, Miller replaced him on the nine-member Kaiser Steel Long-Range Sharing Plan Committee. The Kaiser committee revolutionized labor negotiations by employing three public representatives, three management representatives, and three labor representatives to resolve issues between the Steelworkers and California-based Kaiser Steel. One of the public representatives and the chairman of the Kaiser committee was University of Pennsylvania professor George Taylor, who later recommended to pitcher Robin Roberts that the Players Association hire Miller.

Miller called Goldberg on December 3, ten days before Flood addressed the union meeting, and briefly explained Flood's proposed lawsuit. Goldberg suggested that they meet for breakfast.

On the way to breakfast two days later, Miller noticed a story on the front page of the
New York Times
. There was Goldberg, pictured standing next to smiling former New York governor W. Averell Harriman, below the headline “21 Leaders Urge Race by Goldberg.” For several months, state Democratic leaders had been goading Goldberg to run either for the late Robert Kennedy's U.S. Senate seat or for governor of New York. Polls indicated that Goldberg—a liberal Democrat in a heavily Democratic state, a Jew in a very Jewish city, a former Supreme Court justice, and holder of two cabinet positions (labor secretary and UN ambassador)—would win either office. In the 1966 gubernatorial race, Republican governor Nelson Rockefeller had captured only 44.6 percent of the vote. An October 1 poll showed Goldberg leading Rockefeller by 25 percentage points.

Before they began discussing the Flood case, Miller asked if Goldberg was planning on running for office. Miller needed not only big-name legal counsel but also someone committed to litigating Flood's case for two to three years through the federal courts. Miller did not need a lawyer who would run away in the middle of the fight if he won an election.

When
he won the election, Goldberg quickly corrected him, not
if.

Goldberg was only joking. He often said that after serving on the Court, “I took myself out of the political arena.” Declining to go into politics was his way of still acting as if he were a Supreme Court justice. “I personally do not think it is a good thing for a man who has served on the nation's highest Court and who has dealt with political issues, even though he has resigned, to re-enter the political arena,” he said when he resigned as UN ambassador in 1968. “I do not intend to do so.”

With this in mind, Goldberg assured Miller that he had no intention of running for governor, the U.S. Senate, or any other elected office. He did not want to be governor, he had never run for office in his life, and he was not about to embark on a career in electoral politics at age 61. Five days later, Goldberg confirmed what he had told Miller by announcing that he had no intention of running for any office in 1970. “This decision is final and not subject to change,” Goldberg said.

With Dick Moss at his side, Miller went through the background of the case. He discussed the players' unsuccessful negotiations with the owners to modify the reserve clause; the two Supreme Court precedents,
Federal Baseball
and
Toolson
, which exempted baseball from the antitrust laws; and the 31-year-old ballplayer willing to sacrifice his career to challenge it all in court. He explained that Flood had retained local counsel in St. Louis, but that Miller wanted a lawyer with a national reputation to take the case all the way to the Supreme Court.

Miller could think of no one better suited for that task than Goldberg. He had seen Goldberg argue for two hours straight before a federal appeals court with only a scrap of notes in his hands. Although Goldberg was unsuccessful in overturning a lower court's order forbidding the Steelworkers Union from going on strike, one of the three appellate judges congratulated him from the bench on his outstanding argument. In the span of three weeks in late 1959, he challenged the constitutionality of that injunction all the way to the Supreme Court. His first Supreme Court argument, representing the Steelworkers Union as a third party when President Truman seized the steel mills in 1952, had been so good that, according to Judge Abner Mikva, a Supreme Court law clerk that term, “[i]t was the overwhelming consensus of the law clerks that he was the best oral advocate not only of the day but of the entire year.” In 1957 he argued and won a Supreme Court case in the Textile Workers Union's favor, and three years later he litigated a steelworkers' case to the Court before allowing one of his colleagues to argue it.

No one knew more about labor-management relations than Goldberg. He educated a callow Massachusetts senator named John Kennedy on the subject and drafted labor-reform legislation for him. Goldberg could see that Kennedy was going places. Goldberg endorsed Kennedy for president in 1960 and rallied support for him among the labor unions. Kennedy rewarded Goldberg by naming him secretary of labor. After accepting the cabinet position, Goldberg severed his ties to the labor movement and even gave up the $25,000-a-year Steelworkers Union pension that would have kicked in after he turned 60. One of the most visible members of the Kennedy cabinet, Goldberg traveled the world making speeches, mediated massive labor disputes, and earned the president's trust. When Kennedy nominated Goldberg to be a Supreme Court justice in 1962, the president wrote Mrs. Goldberg: “I gave away my right arm.”

Arthur Joseph Goldberg had dreamed of becoming a Supreme Court justice since he finished with the highest grade point average in the history of Northwestern's law school. The youngest of eleven children (including two who died before his parents emigrated from Russia), Goldberg grew up in a working-class neighborhood on the west side of Chicago. He was the only one in his family to attend school beyond the eighth grade. His father had left a Russian town near Kiev and traveled through Siberia, Manchuria, California, and Texas before settling in Chicago, where he peddled produce on a cart drawn by a one-eyed horse. He died at age 51, when Arthur was eight. Goldberg later worked his way through Crane Junior College (while taking night classes at DePaul University), Northwestern University, and Northwestern's law school. He then sued the Illinois Bar Association over its age minimum and won admittance before the age of 21.

Goldberg assumed the Court's “Jewish seat,” which had belonged to Benjamin Cardozo and Felix Frankfurter. Frankfurter had stepped down on August 28, 1962, shortly after suffering a stroke. His replacement could not have been more philosophically different. Frankfurter believed in judicial restraint—strictly adhering to the Court's past decisions and deciding cases on the narrowest possible grounds. Goldberg was a judicial activist—he saw the Court as the protector of the rights of individuals and minorities.

Goldberg's appointment reinvigorated the Warren Court's rights revolution, which had begun eight years earlier with the school-desegregation cases. Goldberg and fellow liberals Earl Warren, William Brennan, and William Douglas could often wangle a fifth vote from an increasingly conservative Hugo Black or moderate Tom Clark. They protected the powerless: instructing state legislatures to draw fairer voting districts, enforcing the separation between church and state, establishing new constitutional protections for the freedom of the press, safeguarding the rights of the accused, and overturning convictions of civil rights demonstrators.

Goldberg was in many ways perfectly suited to be a Supreme Court justice. Although not a gifted writer, he loved to generate ideas and relied on his law clerks to refine them into cogent judicial opinions. He circulated a confidential memorandum in 1963 urging his colleagues to declare the death penalty unconstitutional. Even though none of the six capital cases that term raised the issue, Goldberg made his views public in a three-page dissent. It was an idea that was a decade ahead of its time (the Court outlawed capital punishment in 1972 but changed its mind four years later). The law clerk who helped Goldberg plant those seeds of change was future Harvard law professor Alan Dershowitz. In
Griswold v. Connecticut
in 1965, Goldberg helped overturn a Connecticut ban on contraceptives. In a separate opinion, he wrote that the seldom-cited Ninth Amendment, which says the people retain any rights not enumerated in the Constitution, created a right to privacy.