Flood v. Kuhn: Paving the Way for Athletic Bargaining and Free Markets
| Publication year | 2021 |
| Author | By Phillip E. Stephan |
By Phillip E. Stephan
Phillip E. Stephan practices in the San Diego office of Klinedinst PC, in the firm's Professional Liability, Employment, and Business and Commercial Litigation practice groups. While attending law school, Mr. Stephan worked as the extern for Legal Affairs and Risk Management for the Los Angeles Angels baseball club in Anaheim.
This month marks the 50-year anniversary of the U.S. Supreme Court's grant of certiorari in Flood v. Kuhn (1972) 407 U.S. 258 (Flood). Plenty has been written about the case. It was the beginning of the end of Major League Baseball's notorious "reserve clause." Today, whether you're a baseball fan or not, the case, and its courageous plaintiff, Curt Flood, merit attention from lawyers, judges, and anyone who cares about justice.
For decades, baseball club owners wrote the reserve clause into the contract of every player they employed. The clause bound players to the clubs with which they first signed, for the rest of their playing days. Players could not escape from their clubs except by retiring or sitting out without pay. Nor could they veto trades. The reserve clause amounted to an almost-medieval perpetual contract. Club owners justified the reserve clause by arguing it prevented bidding wars from wrecking baseball financially and heightened fan interest. No player dared argue, for fear of losing his career and livelihood.
Enter Curt Flood. In October 1969, Flood was a 31-year-old, African-American, veteran center fielder for the St. Louis Cardinals. He had just finished his 12th full season in the major leagues. Flood was a defensive standout, who had just won his seventh consecutive Gold Glove at his position. He received a letter from his general manager, Bing Devine, containing three lines of the curt, prim prose favored by executives giving bad news: "Enclosed herewith is ... assignment of your contract to the Philadelphia Club of the National League. Best of luck." Flood had been traded, from a good team and his major league home of 12 years (the Cardinals) to a bad team (the Phillies).
Flood was not happy. He refused to report to his new club. Among other reasons, he felt Philadelphia fans were belligerent and racist. Flood wanted something that all of us take for granted today — free agency, the right to offer his services on an open market and contract with whom he wished.
In December 1969, Flood wrote to the commissioner of baseball, Bowie Kuhn: "After twelve years in the Major Leagues, I do not feel that 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....
"It is my desire to play baseball in 1970, and I...
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