NPR: Justice Sotomayor takes swing (and misses) at famed baseball case

Normally there is not much to be gained from trolling through the comments section of any blog or newspaper. 

Much like the Billy Madison bit, you just end up dumber for the experience and lose faith in your fellow man. 

Most of the time, you are reminded of the old Robert Heinlen quote, 

"Never teach a pig to sing; it wastes your time and it annoys the pig". 

But once in a while you stumble across a gem tossed in the garbage dump. 

This NPR piece about Supreme Court Justice Sotomayor takes a retrospective look at the Curt Flood case 

(which the Supreme Court botched IMO). Of course, Justice Sototmayor is going to make the Supremes 

look better in the rear-view mirror because she is one of them. But down at the bottom of the comments section

is a different view from one Curt Flood, Jr. and he takes her to task for her analysis. 

from Mr. Flood's diatribe below:

So what else is new in America? Not much in the way of social justice has changed. We race to 

bail-out banks, supposedly "too big to fail," with the urgency 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.

Of course, some will say that Curt Flood, Jr. is biased to make his Dad look better in the rear-view mirror and to 

that I would just sigh and say "He shouldn't have to." IMO, Junior knocked it out of the park defending his Dad's 

under-recognized role in shaping baseball into the $5-6 billion dollar industry it is today, along with Marvin Miller.

Those two (Miller and Flood) have every much right to be in the Baseball Hall of Fame for their "contributions" as 

many others who currently reside there. It's a growing list. Pretty soon we'll have more folks who should be in the

Hall who for one reason or another are permanently on the outside looking in. 

With all due respect, Jackie Robinson opened doors for black ballplayers that were previously closed, but Curt 

Flood helped remove the chains that bound ALL players into bondage to their teams in perpetuity (via the Reserve

 Clause) which gave real-life meaning to the phrase "Property of...".

  

Curt Flood, Jr.'s comments, and the entire farce of this exercise by this elitist, self-indulgent organization shows

how out of touch the Supreme Court is with life in America, which is tragic and has real-life consequences for 

those who have to deal with the yoke of their horrible decision-making.  In context, here we are talking about a 

game. Elsewhere, these clowns have whiffed on larger life issues like slavery, abortion, forced sterilization and 

the list goes on and on.  

more from Mr. Flood:

"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 "right time to overrule it?" Wow. She really should be ashamed of herself for saying 

something that one-sided, 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!

===

from npr.org

http://www.npr.org/2013/05/23/186314129/justice-sotomayor-takes-swing-at-famed-baseball-case

Justice Sotomayor Takes Swing At Famed Baseball Case

by NINA TOTENBERG

May 23, 2013 5:23 PM

Supreme Court Justice Sonia Sotomayor's wicked, waggish sense of humor — and knowledge of baseball — 
were on full display Wednesday, when she presided over a re-enactment of Flood v. Kuhn, the 1972 case that unsuccessfully challenged baseball's antitrust exemption.

The event, put on by the Supreme Court Historical Society, took place in the court chamber, and as 
Sotomayor took her place at the center of the bench, normally the chief justice's chair, she remarked 
puckishly, "This is the first time I've sat here. It feels pretty good."

For those who don't remember, the case was brought by St. Louis Cardinals great Curt Flood, who challenged baseball's

 reserve clause — the provision that allowed teams to virtually own players, set salaries and conduct trades, with the 

players for all practical purposes never able to negotiate freely with other teams. That meant that at the time Flood 

brought his challenge in 1970, he was earning what was then considered a top salary of $90,000. This, for a player who 

had signed with the Cards at age 18, with no agent or lawyer, and who in six of the next 12 seasons batted .300 and won 

seven Gold Glove awards. So, when he was traded to the Philadelphia Phillies, a definitely lesser team at the time, he 

refused to go, and could not play for any team.

He wrote to the then-baseball commissioner, Bowie Kuhn, protesting that he was "not a piece of property to be bought 
and sold." Kuhn denied his request for free agency — a concept unrecognized by baseball back then — and Flood sued, 
seeking to block the perpetual use of the reserve clause.

All of these facts, and more, were detailed on Wednesday night by University of Wisconsin law professor Brad Snyder, author of A Well Paid Slave.

In 1972, the U.S. Supreme Court ruled against Flood by a vote of 5 to 3. The decision, written by Justice Harry Blackmun, 
is widely disrespected today (more on that later). But because Blackmun frankly acknowledged that the court's previous 
rulings upholding baseball's antitrust exemption were wrong, his opinion led to the subsequent creation of a free agency 
system in baseball.

In 1994, however, nearly two decades after the Flood decision and the ensuing changes in baseball, the owners sought 
to effectively nullify the free agency system, and the baseball players struck, wiping out the playoffs and the World 
Series. The National Labor Relations Board went to court, contending that the owners were negotiating in bad faith, 
and the case came before a young federal district court judge named Sonia Sotomayor.

She agreed that the owners were colluding illegally to fix salaries and granted a temporary injunction barring them from 
doing that. Sotomayor, a wildly dedicated Yankees fan, issued her opinion in time to allow the new baseball season to 
begin as scheduled on opening day, with the old baseball contract in effect. She thus earned the title, "the judge who 
saved baseball."

So it was no accident that the Supreme Court Historical Society got Sotomayor to preside over the re-enactment of 
the Flood case this week.

Representing Flood at the re-enactment was Stanford Law professor Pamela Karlan, a frequent Supreme Court advocate,
and ironically, a former Blackmun law clerk. And representing Major League Baseball was another frequent Supreme 
Court advocate, Roy Englert.

Karlan opened, noting that the Supreme Court's 1922 and 1953 decisions upholding baseball's antitrust exemption were 
outliers and that the court had not permitted such an exemption for any other professional sport.

Sotomayor asked why the court should "break with tradition," thus depriving the owners of their "reliance" on previous decisions.

Karlan shot back that if the court were to side with the owners for a third time, it would amount to something done in 
 baseball only once before — three errors on a single play.

Sotomayor, with a straight face, opined that the court could apply another baseball rule: three strikes and you're out.

Karlan, undaunted, replied, "I'm swinging for the fences here, your honor."

Sotomayor asked what would happen if the court were to take away the antitrust exemption. Wouldn't the players move 
around so much that fans would have no team loyalty?

No, rejoined Karlan, the owners would just have to pay the players what they are worth in order to hold on to them, 
and instead of year-to-year contracts that leave players with no leverage, the owners would have to negotiate 
longer-term contracts.

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.

Returning to the legal question, Karlan noted that in the late 1800s and early 1900s baseball was competitive, with
 independent leagues, and that to interpret the antitrust law, as the Supreme Court did in 1922 when it said baseball 
was exempt, was ridiculous. Just as ridiculous was the court's assertion that the sport was not involved in interstate 
commerce.

Next up to the lectern was Roy Englert, representing the baseball commissioner and owners. He noted that some 50 
bills had been introduced in Congress over the years to eliminate the antitrust exemption, and none had passed. 
The court, he said, should leave the question to Congress.

But Sotomayor asked, "Where are the rights of the players?" Quoting Curt Flood, she said that the baseball system 
was a form of "involuntary servitude" that does not exist in any other industry.

Englert replied that "these young men are making on average $28,000 ... as much as Supreme Court justices." 
Moreover, unlike other sports, he observed, baseball puts enormous investment into training players in the 
minor leagues.

Sotomayor, however, had a deeper question. What do we do "to the integrity of the court" when we let a 
"clearly erroneous decision stand?" And how long should we let it stand?

Do we let it stand, asked the judicial Yankee fan, "as long as it takes the Red Sox to win a World Series?"

At the close of the argument, Sotomayor summarized the late Justice Blackmun's opinion, noting that it was 
"notorious" for its seven-page sentimental opening, reciting the history of baseball, and listing some 88 best 
players of all time. It was so un-judgelike, she observed, that Chief Justice Warren Burger (and Justice Byron White) 
refused to sign on to that section of the opinion.

They did, however, join those sections upholding the antitrust exemption and the reserve clause, a judgment 
based only on the doctrine of stare decisis, respect for precedent. Indeed, Blackmun conceded that the court 
had been wrong when it said the game was not involved in interstate commerce, and he concluded only that 
the exemption should continue because the court had previously said so and Congress had done nothing to 
overrule the court.

What would I have done, asked Sotomayor? Well, first of all she would have insisted that Joe DiMaggio be 
added to the list of baseball greats, and on that condition she would have joined the opening section of 
Blackmun's opinion.

But she would have dissented on the legal conclusions. There is "not much legal justification" for the ruling, 
she said, noting that the prior decisions were based on doctrine that was by 1972 "hopelessly outdated."

And in comments that might be read as applying to affirmative action or voting rights or abortion decisions 
of the past that the current conservative Supreme Court majority disagrees with, she had further observations.

"There are Supreme Court decisions that are wrong," she said. The court's 1896 decision upholding segregation 
was wrong, and the Supreme Court was right to reverse it in 1954. But sometimes, she said, the question is not 
whether the decision was wrong, but whether this is the right time to overrule it.

Today, she observed, we see as "horrible" the reserve clause that deprived players of any real negotiating power. 
But at the time, what both sides thought they were arguing about was "the very survival of baseball."

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  Dan Feller • 17 days ago
  

  There are some considerable inaccuracies in this story, which surprises me from Nina Totenberg, 
  who is presumed to know her stuff. The Supreme Court never reversed its antitrust exemption for 
  baseball and the reserve clause was never judicially overturned. It was simply interpreted (by a 
  labor arbitrator acting under the contractually stipulated arbitration procedure) to mean what it 
  literally said: that an unsigned player was bound for one year, but no more, to his present club. 
  The owners appealed that ruling to the courts and were rebuffed under the precedent set by the 
  Steeworkers Trilogy cases (argued and won by David Feller, my father) that courts should not 
  intervene to overturn an award made by an arbitrator acting within his proper authority.

  In short, her statement that "because Blackmun frankly acknowledged that the court's previous 
  rulings upholding baseball's antitrust exemption were wrong, his opinion led to the subsequent 
  creation of a free agency system in baseball" is itself completely wrong. The free agent system 
  was created by arbitration followed by contract negotiation. The Supreme Court had nothing to 
  do with it whatever.

  Marvin Miller got this right in A Whole Different Ballgame.

  
  
  
  
  
  
  
  
  

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  curtfloodjr • 13 days ago
  

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  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, at least one altrusitic bone in their body, to 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 bravely did–their jovial little reenactment party
  last week 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 "right time to overrule it?" Wow. She really should be ashamed of herself for saying 
  something that one-sided, 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 at all what they thought, at all.. 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 actually be worth more than 
  the parchment it's written on. But Bowie Kuhn and half the Supreme Court were in the pockets of 
  the baseball club owners. I know it and the good Justice Sotomayor knows it. And not only in the 
  private country club kinship and spirit of the time, but because Justice Lewis Powell recused 
  himself owing to his ownership of stock in Anheuser-Busch, which owned the Cardinals. 
  What a coincience.

  So what else is new in America? Not much in the way of social justice has changed. We race to 
  bail-out banks, supposedly "too big to fail," with the urgency 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.
  Los Angeles