By Brian Callaci, LaborNotes
Banning non-compete clauses is a complement to, not a substitute for, union power. Just ask trailblazing baseball star Curt Flood.
The Federal Trade Commission has proposed to ban the non-compete clause—a type of coercive labor contract that prevents workers from leaving their employer to work for a competitor.
One in five workers labors under a non-compete agreement, costing workers $300 billion annually. The AFL-CIO was part of a large coalition of organizations petitioning the FTC for a ban on non-competes in 2019. Now the FTC is considering banning them.
The long struggle of Major League Baseball players shows how the fight against non-competes can be linked with increasing union strength.
BOUND FOR LIFE
In the 1960s, the average baseball player was not particularly rich. Pitcher Nolan Ryan noted in his Hall of Fame acceptance speech that he had to work at a gas station in the offseason to make ends meet before the players unionized.
In 1965, a group of players approached United Steelworkers economist Marvin Miller and asked him to serve as executive director of a newly formed players’ association. The players, not being seasoned trade unionists, wanted a professional negotiator to get them a good deal from the owners.
Instead they got an organizer. “You have to understand, we are adversaries,” he told the players. “If at any point the owners start singing my praises, there’s only one thing for you to do, and that’s fire me.”
A major cause of the low salaries and poor working conditions was baseball’s version of a non-compete, known as the “reserve clause.” Inserted into all player contracts, the reserve clause gave team owners the option to renew their contracts each year for one additional year.
The problem was, owners and the courts interpreted the clauses to extend into perpetuity. In effect, a player was bound to his team for life.
Owners, of course, had the right to trade players against their will. Because baseball enjoyed an exemption from the nation’s antitrust laws, owners were free to collude against players in this fashion. In other words, baseball players were treated as the property of their employers.
‘A UNION LEADER’S DREAM’
As baseball players at the time and Miller saw it, ending the reserve clause was a basic building block to building up the collective power of the union. Even unionized property was still property. As Miller and his organizing committee plotted out a strategy to build up the union’s power, along came Curt Flood, the star center fielder of the dominant St. Louis Cardinals.
The team was home to some of the most recognizable and outspoken Black stars in baseball, including Flood, Lou Brock, and Bob Gibson. The Cardinals beat the Yankees in the 1964 World Series and took away the Boston Red Sox’s “Impossible Dream” in the 1967 championship. (Perhaps not coincidentally, Boston was the very last team to integrate.)
Flood had long been among the most vocal athletes of the time in speaking out against racial injustice. He was raised in Oakland, and wrote eloquently in his autobiography about the shock and pain of playing under Jim Crow laws as a minor leaguer in the South, and being subjected to racist abuse around the country as an All-Star Major Leaguer.
At the end of the 1969 season, St. Louis traded Flood to Philadelphia. Flood refused to go—claiming that since his contract term was up, he was now a free agent who could play for the team of his choice. St. Louis claimed its rights to assign Flood wherever they chose under the reserve clause. A confrontation ensued.
Flood contacted the union. Miller warned him of the consequences—even if he won, he would likely never play again. Flood said he knew the consequences, but if it would benefit future players, he wanted to do it. Miller told him, “You’re a union leader’s dream.”
