Curt Flood

Curt Flood’s lawyer was unprepared


This comes from the “I never knew that” file.

Apparently Curt Flood’s attorney in front of the Supreme Court for his famous — and ultimately ill-fated — challenge of the reserve clause was woefully unprepared. That, via the New York Times, is the story that will be told in a documentary that will air tonight on HBO entitled “The Curious Case of Curt Flood.”

The lawyer was not just any lawyer, though. It was Arthur J. Goldberg, who was a justice on the freaking Supreme Court from 1962-1965, helping (for better or worse, depending on your point of view) take the court in a sharply more liberal direction than it had been in the past. Goldberg crafted decisions on the death penalty and privacy rights, among other things, which continue to help fuel fierce debate to this day.

Say what you want about the merits of those decisions, but you don’t make that kind of mark by half-assing things.  Goldberg had a very bad day representing Curt Flood in 1972, however, and as the story and the documentary explain, it was probably because he half-assed it:

He did not deliver pointed, persuasive arguments. He lost his place. He did not answer justices’ questions directly. He clumsily listed Flood’s season-by-season batting averages. He went past his allotted time. He repeated himself. He spoke as if he did not understand baseball, citing the several “Golden Gloves competitions” Flood won for his excellent work as a center fielder. Brad Snyder, the author of “A Well-Paid Slave,” about the Flood case, wrote that Justice William Brennan cringed at watching his friend’s struggles.

David Stebenne, Goldberg’s biographer, said Goldberg admitted that he had not prepared the way he should have, incorrectly assuming that the justices who had served with him would see the error of sticking by past decisions — and not wait any longer for Congress.

On the one hand, the effect of this may be overstated.  Most appellate judges and their clerks will tell you that, usually anyway, the judges’ minds are made up before the oral argument, based on reading and scrutinizing the legal briefs which have already been submitted.  Oral argument is used to test the preliminary decision that was made, suss out nuances which were unclear from the briefs and that kind of thing.  Sure, the arguments can change a judge’s mind, but if you’re going to strike out on one of the phases of the case, better to have a bad day at oral argument than to submit a bad brief.

That said, you should do neither. A lawyer can win a case if he or she is talented or relatively untalented. A lawyer can win a case if the law is mostly on their side or if they’re fighting an uphill battle. What a lawyer can rarely get away with, however, is being unprepared. It casts a pall on your entire case. It causes the judges to go back and look at that brief and wonder if it really was as good as they thought. It also freaks your client out, and that’s not good.

My guess: Goldberg’s awful, unprepared performance didn’t change the course of the Curt Flood case,* because the justices likely made up their minds beforehand.  But it sure as hell didn’t help.


*I don’t have HBO, so someone tell me tomorrow if the documentary comes to any strong conclusion about this.

The international draft is all about MLB making money and the union selling out non-members

SAN JUAN, PUERTO RICO - MARCH 13:  A fan flies the Dominican Republic flag during the game against Cuba during Round 2 of the World Baseball Classic on March 13, 2006 at Hiram Bithorn Stadium in San Juan, Puerto Rico.  (Photo by Al Bello/Getty Images)
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On Monday we passed along a report that Major League Baseball and the MLBPA are negotiating over an international draft. That report — from ESPN’s Buster Olney — cited competitive balance and the well-being of international free agents as the reasons why they’re pushing for the draft.

We have long doubted those stated motivations and said so again in our post on Monday. But we’re just armchair skeptics when it comes to this. Ben Badler of Baseball America is an expert. Perhaps the foremost expert on international baseball, international signings and the like. Today he writes about a would-be international draft and he tears MLB, the MLBPA and their surrogates in the media to shreds with respect to their talking points.

Of course Badler is a nice guy so “tearing to shreds” is probably putting it too harshly. Maybe it’s better to say that he systematically dismantles the stated rationale for the international draft and makes plan what’s really going on: MLB is looking to save money and the players are looking to sell out non-union members to further their own bargaining position:

Major League Baseball has long wanted an international draft. The driving force behind implementing an international draft is for owners to control their labor costs by paying less money to international amateur players, allowing owners to keep more of that money . . . the players’ association doesn’t care about international amateur players as anything more than a bargaining chip. It’s nothing discriminatory against foreign players, it’s just that the union looks out for players on 40-man rosters. So international players, draft picks in the United States and minor leaguers who make less than $10,000 in annual salary get their rights sold out by the union, which in exchange can negotiate items like a higher major league minimum salary, adjustments to the Super 2 rules or modifying draft pick compensation attached to free agent signings.

Badler then walks through the process of how players are discovered, scouted and signed in Latin America and explains, quite convincingly, how MLB’s international draft and, indeed, its fundamental approach to amateurs in Latin America is lacking.

Read this. Then, every time a U.S.-based writer with MLB sources talks about the international draft, ask whether they know something Ben Badler doesn’t or, alternatively, whether they’re carrying water for either the league or the union.

President Bill Murray speaks about the Cubs from the White House

CHICAGO - APRIL 12:  Celebrity Bill Murray clowns around with Chicago media before the opening day game between the Chicago Cubs and the Pittsburgh Pirates on April 12, 2004 at Wrigley Field in Chicago, Illinois. The Pirates defeated the Cubs 13-2.  (Photo by Jonathan Daniel/Getty Images)
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I don’t know why Bill Murray is in Washington today. I don’t know why he’s at the White House. But I do know that he was there in Chicago Cubs gear, standing at the lectern in the press briefing room, voicing his full confidence in the Cubs prevailing in the NLCS, despite the fact that Clayton Kershaw is going for the Dodgers tomorrow night.

“Too many sticks,” president Murray said of the Cubs lineup. And something about better trees in Illinois.

Four. More. Years.