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If you wish to divide Americans into two unambiguous groups, what would you choose as the best criterion? Males and females, east and west of the Mississippi? May I suggest, instead, the following question: “What is Justice Blackmun’s worst decision?” Anti-abortionists, and conservatives in general, will reply without a moment’s hesitation: Roe v. Wade. Liberals might need to think for a moment, but if they are baseball fans as well, they will surely answer: Flood v. Kuhn. For, in 1972, the same Harry Blackmun who gave us Roe v. Wade also wrote the 5–3 decision (with the usual trio of Douglas, Marshall, and Brennan in opposition) denying outfielder Curt Flood the right to negotiate freely with other teams following the expiration of his contract with the St. Louis Cardinals, and upholding the admittedly illogical exemption of major league baseball from all antitrust legislation (on the preposterous argument that this game alone—for none other has such a waiver—is a sport and not a business).
Curt Flood was one of the best ballplayers of the 1960s, a fine outfielder with a nearly 300 lifetime batting average. Following the 1969 season, after twelve good years with the Cards, he was traded to the Philadelphia Phillies—and he didn’t want to go (or at least he wanted the option, available to any free man, of placing his services on the market and negotiating with other teams). But major league baseball, by explicit judicial sanction, had always enforced a system of peonage based upon the “reserve clause.” This statement, present in all contracts, “reserved” the player’s services to his club for the following season, even if terms had not been reached on a new contract. (That is, the player could be “reappointed”—without his approval, take it or leave it—for a following year at the same terms as the last season.) In effect, the reserve clause provided a perpetual contract because owners granted themselves the power of indefinite extension, year after year. Thus, teams owned players and could pay and trade them almost at will. A player had but one “recourse,” though it amounted to a death warrant, rather than a weapon: he could refuse to sign, but to what avail? No other team would hire him.
Owners insisted that they needed such a provision to prevent baseball’s wreckage by bidding wars—an odd argument that management must be protected from itself by oppressing workers. In two previous rulings, in 1922 and 1953, the Supreme Court had upheld baseball’s exemption from antitrust legislation, thereby depriving players of any judicial remedy for abuses of the reserve clause. (The Court did not present a constitutional defense of management, but rather passed the buck, stating that any regulation of baseball’s traditional ways must be instituted by Congress.) Blackmun’s regrettable decision of 1972 is a mixture of platitudes about the sanctity of our national pastime, combined with a third passing of the buck.
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