[In January 23, 1975, Joe Caldwell filed a multi-million-dollar federal antitrust suit against the American Basketball Association. As Caldwell and his lawyers alleged, he had been wrongly suspended a month earlier for advising a teammate (Marvin Barnes) on how to find a new agent. The suspension was wrong, Caldwell stated, because he was the president of the ABA Players Association and the union rep for the Spirits of St. Louis. Advising teammates on labor issues was his duty and hardly constituted “conduct detrimental” to the ABA, the basis of his suspension. The ABA then ratcheted up Caldwell’s suspension to “indefinite,” a softer way of saying Pogo Joe’s career was over.
The lawsuit’s broader antitrust component stemmed from Caldwell allegation that the league’s leadership, most notably Commissioner Tedd Munchak, had cooked up the suspension as part of a plan to get rid of him. Caldwell played in the ABA under a personal services contract with Munchak, the former owner of the ABA’s Carolina Cougars and the team that Caldwell joined after leaving the NBA Atlanta Hawks in late 1971. The following year, Munchak began contesting the terms of Caldwell’s superb pension, which was clearly written into the contract and clearly initialed by him. Munchak even went so far as to arrange for some of Caldwell’s former NBA teammates to ask him to jump back to Atlanta and ditch his ABA contract!
An April 1975 trial date was set in New York for the antitrust case, but Munchak was already two steps ahead of Caldwell. He had informed the president of Caldwell’s Greensboro, NC bank that Caldwell had no source of income now that Munchak and colleagues had kicked him out of the ABA. The bank president immediately sued Caldwell for $120,000, reportedly the sum total—plus interest—of a series of small loans that Caldwell had received from the bank. The case was referred to state bankruptcy court, where the judge stunningly ordered Caldwell into involuntary bankruptcy. The ruling meant a court-appointed trustee, against Caldwell’s will, would control all of his financial assets until the settlement of the bank debt, which now included mounting legal and processing fees.
With this sudden turn of events, a federal judge in New York suspended the ABA antitrust suit. The judge said Caldwell could refile the lawsuit, but only after he settled his NC bankruptcy case. Too bad the bankruptcy case would drag on for more than a decade. Caldwell later determined that the trustee issued more than $680,000 in payments and fees to settle a bank debt that ultimately totaled $80,000.
Where did the “bankrupt” Caldwell come up with $680,000? He entered bankruptcy with a number of investments—and Munchak owed him $150,000, the final payment on the personal services contract. (Caldwell sued Munchak for the money, and the court ordered the former ABA commissioner to pay $325,000 to Caldwell, which included his salary and damages. Caldwell never saw a penny. The money went to the trustee.)
When Caldwell finally emerged from bankruptcy in the early 1990s, the ABA had been out of business for more than a decade. More troubling yet, American sports law was now mostly litigated according to labor, not antitrust, law, and had a focus on arbitration and collective bargaining. Caldwell’s slam-dunk antirust case in the 1970s had become a legal longshot in the 1990s.
Caldwell refiled the antitrust case, and a fresh set of lawyers took up the original question: What cause did the ABA have to suspend Caldwell indefinitely? Here we have two of several depositions from the case. The depositions indicate that, in addition to Munchak’s personal vendetta against Caldwell, the ABA succeeded in sending a chilling message to the members of its players association: If we can destroy Joe Caldwell, we can do the same to you. (Imagine if the NBA had tried that with Oscar Robertson?) The message was part of the ABA’s desperate attempt to finalize a new collective bargaining agreement with its players. For a last gasp hope of a merger, the ABA needed a new agreement that mirrored the NBA’s CBA, and Caldwell, as union president, wouldn’t sign off.
But the message turned even chillier. Because Caldwell had by far the best pension in sports, the NBA couldn’t allow him to return in a merger. His outsized pension would set an expensive precedent for other NBA players. Plus, whichever NBA team drafted Caldwell in the ABA dispersal draft also legally picked up his expensive pension. If Caldwell went unselected in the draft, he could sue and hold up the merger while his case was litigated.
Realizing all the above, the ABA attacked Caldwell and a contract of the league’s own creation to win in its war with the NBA. The ABA’s planned takedown of Joe Caldwell marks an ethical low point in modern professional sports. Just ask Marvin Miller, the long-time executive director of the Major League Baseball Players Association. His deposition was taken on January 15, 1993.]
Marvin Miller, being duly sworn deposes and says:
1. From 1966 to 1983, I was the Executive Director of the Major League Baseball Players Association (“MLBPA”). Subsequently, I have served periodically as a consultant to that organization. I have been asked by plaintiff Joe L. Caldwell (“Caldwell”) to comment, from the perspective of an executive director of a professional sports players union, upon Caldwell’s indefinite suspension from the American Basketball Association and his subsequent exclusion from professional basketball. I have been asked to comment in particular on the effects which Caldwell’s suspension and exclusion from professional basketball would be expected to have on other professional basketball players and their subsequent dealings with team owners. I submit this affidavit in opposition to the defendants’ motions for summary judgment.
2. During my tenure as executive director of the MLBPA, I was involved in many negotiations and disputes between the owners of Major League professional baseball teams (the “Owners”) and the professional baseball players (the “Players”). As such, I became intimately familiar with the interrelationship and dealings between Owners and Players (as individuals, as union members and as union officers involved in furthering the interests of the players as a group). During my tenure, I observed that Owners seek to obtain negotiating advantages with individual players and with the Players Union through the use of disciplinary or other actions against individual Players. In my experience, Owners are able to intimidate Players generally—and Players active in the Players Union in particular—by disciplining or otherwise damaging the careers of high visibility Players. Such actions send a signal to the Players that the Owners can damage or even destroy a Player’s career if they so choose, almost regardless of the strength of the Players Union. These actions intimidate the Players and generally make them much less aggressive in both their individual contract and union negotiations.
3. In preparing this analysis, I have been asked by plaintiff’s counsel to accept the following facts:
a) In 1974, Caldwell, a professional basketball player, was under contract with the Spirits of St. Louis Basketball Club (the “Spirits”), one of the teams in the American Basketball Association (the “ABA”);
b) Caldwell was a well-known player of star caliber—a four-time member of the ABA or NBA All Star teams, the number 2 pick in the NBA draft, a former member of the United States Olympic basketball team, and an All American at Arizona State University;
c) On or about December 3, 1974, the Spirits suspended Caldwell indefinitely without justification;
d) The Spirits never lifted or terminated the suspension;
e) The By-Laws forbade member teams from employing or negotiating with a suspended player, even if the player’s contract had expired or had been terminated;
g) At the time of the suspension, Caldwell was the President of the ABA Players Association (“ABAPA”), the players union, and the players representative on the Spirits team;
h) Caldwell was an outspoken and tenacious advocate of the players’ rights;
i) As a result of the suspension, Caldwell no longer could exercise his functions as the President of the ABAPA;
j) When, in 1975, the Phoenix Suns, a team in the rival NBA, expressed an interest in hiring Caldwell, David DeBusschere, the then ABA Commissioner, called the team owner to dissuade him from hiring Caldwell; and
k) After December 3, 1974, Caldwell never again had an opportunity to play professional basketball.
I will refer to these circumstances collectively as the boycott of Caldwell.
4. Based on my experience in major league professional baseball, I am of the opinion that the boycott of Caldwell was a form of Player intimidation that Owners often employ in order to put negotiating pressure on Players. In blunt terms, actions such as the boycott of Caldwell, often are not intended solely as a punishment of a single player, but are designed to communicate to all players that their careers can be damaged or destroyed by the Owners. In my experience, such implicit threats to Players’ careers and financial well-being are generally quite effective in suppressing Players’ contract demands, both at the individual and union level.
5. The boycott of Caldwell was an extreme form of intimidation because it destroyed the career of an established, star player. It brings to mind a similar, but much less severe, situation in major league professional baseball which occurred while I was Executive Director of the MLBPA. In 1978, the New York Yankees wanted to trade Ken Holtzman, an accomplished left-handed starting pitcher on the Yankees pitching staff. Holtzman also was the Yankees Players’ representative to the MLBPA. Owners frequently traded Players’ representatives in order to: a) create turnover in the MLBPA’s governing body, thereby making it a less effective bargaining agent for the Players; and b) intimidate the Players’ representatives so that they would moderate their positions in negotiating with the Owners. Holtzman’s contract contained a “no-trade” clause, which meant that he could not be traded without his consent. When the Yankees advised Holtzman that they wanted to trade him, Holtzman refused unless the trade was to one of the Chicago ball clubs, the White Sox or the Cubs. Holtzman had lived for many years in Chicago and was willing to return there. However, he was not willing to relocate to another city.
6. In response to Holtzman’s opposition to any trade other than to a Chicago team, the Yankees punished him. First, he was demoted from the starting pitching rotation and converted into a relief pitcher, even though he had never been a reliever. Then, when he still refused to be traded, the Yankees attempted to place Holtzman on the disabled list to prevent him from playing at all—even though he was not injured. Such treatment could obviously hurt a player because it deprived him of: a) valuable playing time; b) the ability to establish a full record for that season (which could affect subsequent salary negotiations); c) the ability to maintain his skills, confidence and sharpness during the season; and d) exposure to the fans and the press. Ultimately, the MLBPA brought a labor grievance on Holtzman’s behalf and he was returned to the Yankees active list and, subsequently, traded to the Chicago Cubs.
7. After Holtzman was disciplined for asserting his rights under the no-trade provision of his contract, other Players, who also had contracts with no-trade clauses, had ample reason to fear that their careers might be damaged if they asserted their contract rights and refused to agree to a trade proposed by their team’s Owner.
8. The Holtzman incident demonstrates how measures taken against one Player are often effective to influence and intimidate other Players. Due to broad press coverage of professional sports, news of any measure taken by an Owner against a Player travels quickly and can be expected to be become known and understood almost immediately by the other Players in the sport. Moreover, actions taken against a star or a Player who has great name recognition or special fan appeal, can be expected to have a greater psychological impact on the remaining players than action taken against a marginal player with little fan appeal.
9. Based on my experience in major league professional baseball, I am of the opinion that the boycott with Caldwell was an act of intimidation which could be expected to intimidate other players in the ABA and cause them to suppress and moderate their positions in both their individual and union contract negotiations.
[Zelmo Beaty, the former president of the ABA Players Association, also provided a deposition. Beaty and Caldwell were former teammates in Atlanta and on friendly terms. But Beaty, who ran into his own troubles in Utah on a reneged contract, knew more than most just how dangerous union duty could be in a league that was going bankrupt and desperately needed to merge with the NBA. Beaty gave his deposition on January 19, 1993.]
I, Zelmo Beaty, being first duly sworn upon my oath, depose and state as follows:
1. I make this Affidavit based upon my own personal knowledge.
2. I played professional basketball in the American Basketball Association (“ABA”) from 1969 until 1974.
3. I was President of the American Basketball Players Association (“ABAPA”) from 1971 until 1973.
4. During the time that I was President of the ABAPA, JOE L. CALDWELL (CALDWELL”), was Vice-President of the union and active in union affairs.
5. After the expiration of the first collective bargaining agreement between the ABAPA and the ABA, difficulties arose in negotiating a second collective bargaining agreement.
6. Since I was involved in a dispute with my team, the Utah Stars, I stepped down as President of the union for those negotiations and CALDWELL became the President of the union.
7. In the negotiations, CALDWELL and the rest of the ABAPA leadership were unable to reach an agreement with [the] ABA over issues concerning player pensions, medical benefits, and the honoring of ABA player contracts in the event the ABA and NBA eventually merged. As a result, a Collective Bargaining Agreement was never finalized.
8. In October of 1974, after my contract with the Utah Stars expired, I left the ABA and returned to play professional basketball in the National Basketball Association (“NBA”).
9. I became aware of the indefinite suspension of CALDWELL by his team, the Spirits of St. Louis, in December of 1974.
10. I was deeply concerned that CALDWELL was indefinitely suspended and never allowed to play professional basketball again based upon allegations that he had counseled a teammate in connection with a contract dispute. I did not believe it lawful or proper to suspend a union leader for advising one of the union members regarding his contract.
11. I was personally familiar with the abilities and drawing power of all the players in the ABA in the 1974-76 timeframe.
12. Based upon my observations of the playing abilities of those players, it was my opinion that JOE CALDWELL was an established star player in the league and was a better professional basketball player than most of the professional basketball players in the ABA and the NBA. It is also my opinion that Joe Caldwell had exceptional fan appeal and had a powerful ability to draw fans to games. In my view, Caldwell’s star status and fan appeal resulted from his amazing ability to jump; his tenacious defensive skills which made him one of the NBA’s and ABA’s best and most exciting defensive players; and the fact that he was one of the most talented athletes in either league. These skills and characteristics gave Joe Caldwell a far greater power to draw fans to the games than most other players in the NBA and ABA enjoyed.
13. The indefinite suspension of Caldwell and his subsequent exclusion from professional basketball intimated and frightened the players. The owners’ ability to destroy the career of an established star who had a large contract in an important position in the ABAPA was a sobering message to the players. It meant that any player who was overly aggressive in his contract negotiations, overly aggressive in his activities on behalf of the players union or offensive in any way to the league or the team owners, could lose his professional career. This was a fact which I kept in mind in my own dealings with team owners after Caldwell’s suspension.