John is a Chicago lawyer with an insatiable interest in baseball-related litigation. When not rooting for his beloved Cubs (or working), he is probably reading a baseball book or blog, planning his next baseball trip, or enjoying downtime with his wife and family. He is probably the world’s foremost photographer of triple peanuts found at ballgames and likes to think he has one of the most complete collections of vintage handheld electronic baseball games known to exist. John is a member of the Emil Rothe (Chicago) SABR Chapter and Co-Chair of the SABR Baseball Landmarks Research Committee.
The offseason between 1998 and 1999 was busy for the Chicago Cubs marketing team and Vine Line magazine staff. A marketing campaign with Old Style beer was conceived to conduct a fan vote for the Cubs’ All-Century team in early 1999 that included the production of an accompanying 21-card set. As discussions of the greatest players of the century were ongoing, the marketing department proposed a second set of cards highlighting “greatest moments.” According to Cubs team historian Ed Hartig, however, the problem they grappled with was “top moments of what? Of the team? Of the team during the century? Of the park? Of the team at the park?”
Ultimately, they decided to do a card set highlighting the top ten Cubs moments that occurred at Wrigley Field. A Budweiser sponsorship provided for a 10-card set to be given out at the August 6, 1999 game.
Unlike the Cubs All-Century Team, there was no fan voting component for the top moments. Instead, Hartig was tasked with selecting the greatest moments at Wrigley Field. After surveying media members, media relations staff, broadcasters, and others, Hartig took their suggestions and made the call on the definitive Cubs moments at Wrigley Field. He wrote some notes for each event and reviewed them with the Vine Line staffers. Hartig had “a couple ‘extra moments’ in [his] back pocket in case there was any pushback.” However, the conversation went almost as planned.
The only moment they struggled with was Babe Ruth’s alleged “Called Shot” during the 1932 World Series. Hartig jokingly argued it should not be included “because it didn’t happen and wasn’t truly a Cubs moment.” They eventually agreed it was too big a happening (despite its apocryphal nature) not to be included; however, they decided to use a photo of Cubs twirler Charlie Root on the card instead of Ruth.
Once the “moments” were finalized, the project was turned over to the Vine Line staff to design the cards. Photos for the older moments were selected from the George Brace Collection and newer ones came from Cubs photographer Steve Green. Hartig wrote the highlights for each moment to be used for the card backs. They intentionally did not rank the moments, but instead chose to list the cards chronologically.
Hartig recalled “a little bit of pushback from fans” regarding some of the top moment selections. Some folks were critical of what constituted “the moment” of Kerry Wood’s 20-strikeout game pitched on May 6, 1998. Others suggested that Mark Grace’s catch for the final out of the 1998 Wild Card tie-breaker game against the Giants on September 28, 1998 was more of a “moment.” Regardless, Ed knows they made the right call including the Kerry Wood game because “the whole game was a special moment!”
Some other games/moments considered included the first Chi-Fed game at the ballpark (then called Weeghman Park) on April 23, 1914; the first Cubs game at the park on April 20, 1916; the August 25, 1922 game in which the Cubs beat the Phillies 26-23 (still the most total runs ever scored in a game); Game 6 of the 1945 World Series; Jackie Robinson’s debut at Wrigley Field on May 18, 1947; no-hitters by Sam Jones and Ken Holtzman; and All-Star games at Wrigley Field in 1947, 1962, and 1990.
If only Topps Now existed all along!
Here are Ed Hartig’s personal Top Three Moments (through 1999):
September 28, 1938 – Gabby Hartnett’s “Homer in the Gloamin’”
“Hartnett’s HR gets the number 1 spot for me because it checks off so many boxes. He was a Cubs legend and Hall of Famer, it was dramatic AND it had a significant impact on an improbable comeback to win the NL pennant. The HR didn’t win the pennant as many may claim, but it certainly crushed the Pirates’ spirit.”
May 6, 1998 – Kerry Wood Strikes out 20 Houston Astros in his fifth Major League start
“Wood’s 20 K game would be second. I’ve jokingly said that game reminded me of an adult playing in a kids’ game of Wiffle Ball—with the kids mouthing off. Rather than take it easy on the kids, the adult is throwing curve balls with two-foot breaks or blowing fastballs right past them. It just wasn’t fair.”
December 12, 1965 – Gale Sayers Scores Six Touchdowns
(Author created card)
“Number Three is the “Kerry Wood Game” equivalent for football—when [Bears running back] Gale Sayers scored six touchdowns against the 49ers. I know we didn’t include football in the top moments card set, but in a true list of top moments at the park, this game must be included. Sayers was the adult running through, over, and around a group of kids. It was the original ‘it just wasn’t fair.’”
May 12, 1970 – Banks’ 500th Home Run
August 8, 1988 – First Night Game at Wrigley Field
“The first night game and Ernie’s 500th would likely come next—I go back and forth on which is fourth and which is fifth. I got to know Ernie while working with the team and his 500th was the first great moment I can remember watching as a kid, so maybe that pushes him to fourth. But without the lights, the Cubs might not be playing in Wrigley Field today. Toss a coin which is fourth and which is fifth.”
October 1, 1932 – Ruth’s “Called Shot”
“A lot of people list Ruth’s home run high on their lists. As one who thinks it is more myth than truth, I personally don’t rate it very high. But I know others do, so I included it among the top ten—but it would be further down the list.” [Regardless of all the lore that has followed this alleged event, video footage clearly shows that Ruth was pointing at the Cubs’ dugout, not predicting a home run.]
Hartig also had a few ideas for moments that would crack the Top Ten today: the Cubs clinching the Central Division at home in 2008; knocking off the Cardinals in the 2015 NLDS; and Miguel Montero’s grand slam against the Dodgers in the 2016 NLCS. Kyle Hendricks’ two-hit gem over the Dodgers to win the NL pennant in 2016 would certainly be a worthwhile entry for that new list, too.
1999 Budweiser Wrigley Field Top Ten Moments Checklist
(Cards are unnumbered, list presented in chronological order)
May 2, 1917 – Hippo Vaughn-Fred Toney Double No-Hitter
October 1, 1932 – Babe Ruth’s “Called Shot” (photo is Charlie Root)
September 28, 1938 – Gabby Hartnett’s “Homer in Gloamin’”
May 15, 1960 – Don Cardwell’s No-Hitter
May 12, 1970 – Ernie Banks’ 500th Home Run
September 2, 1972 – Milt Pappas’ Near-Perfect Game (Cubs broadcaster Lou Boudreau in foreground)
June 23, 1984 – The Sandberg Game
August 8, 1988 – First Night Game at Wrigley Field (uncorrected error – “Wrigley Feild” on front of card)
May 6, 1998 – Kerry Wood’s 20 Strikeouts
September 13, 1998 – Sammy Sosa Hits Home Runs 61 and 62
Notes:
Special thanks to Chicago Cubs team historian and Chicago SABR member Ed Hartig for the behind-the-scenes information into how he helped the Cubs create this fantastic card set.
Like many Chicago kids of the 1960s and 1970s, Ed Hartig owes much of his baseball love to WGN-TV broadcasts of afternoon Cubs games from Wrigley Field. When his older siblings were at school, he would sit in front of the television with his baseball cards spread out in front of him arranged in the line-ups for each team. When his siblings got home from school, mom would kick them all out of the house. So Ed would grab his glove and play ball in the backyard while listening to the rest of the Cubs game on WGN-Radio. Little did he know at that point that he would someday help prepare an All-Century Team card set commemorating the ultimate Cubs roster for the 20th century.
Hartig began working for the Cubs as a freelance writer on special projects in 1988 and was a regular contributor to the Cubs’ Vine Line magazine by 1996. Shortly after the 1998 season ended, the team’s marketing and publications departments met to pitch story ideas and promotions for the coming year (perhaps a few of which may have involved the home run chase from the previous season). One of those ideas was selecting a Cubs all-century team in either 1999 or 2000. However, once Major League Baseball decided to run their All-Century promotion during the 1999 season, the Cubs decided to follow suit.
Hartig was tasked with compiling a ballot of the best Cubs players and managers whose careers took place in the 1900s and—crucial for our story—was told that the finalized team would be memorialized with a baseball card set. Hartig carefully put together a slate of the 40 most deserving individuals and got approval from the marketing and publications departments. The final ballot included 26 position players, 10 pitchers, and four managers.
The selection of the Cubs’ All-Century Team was then turned over to the fans. Voting began during spring training and ran through mid-April, which gave the team time to produce the first set of cards for a scheduled giveaway on May 15. Votes were accepted either by mailing in a paper ballot from the newspaper or on-line through Metromix.com, an entertainment-based division of the Chicago Tribune. The ballot was divided into position players, pitchers, and managers; however, fans were asked to simply select their favorite 20 Cubs with no special instructions for picking so many per category or position. The promotion was sponsored by Old Style beer and voters were automatically entered into a contest to win tickets and the chance to throw out the first pitch at a Cubs game later that season.
In total, Cubs fans cast over 120,000 votes and the All-Century Team was announced in early May. The final team consisted of 21 individuals, instead of the 20 originally planned, after a decision was made to add Frank Chance as the manager.
The baseball card fronts and backs included a handsome Wrigley Field marquee motif done by the Vine Line staff. Photos of older players were selected from the George Brace Collection and the more recent photos were those taken by Cubs team photographer Steve Green. Hartig prepared the card backs using the materials he had researched during the initial ballot construction and he separately authored full-page articles for the Vine Line’s All-Century Team. Unlike a number of the Cubs’ team-issued card sets, the Old Style All-Century Team cards were produced in the standard 2½” x 3 ½” size.
The set was distributed in seven-card packs across three home dates on May 15, June 26, and August 3. Because the card set was sponsored by Old Style, the cards were only handed out to the first 20,000 fans at each game who were 21 years of age or older. Accordingly, it is not easy to determine how many of these cards survived.
The living All-Century Team members—including current Cubs Mark Grace and Sammy Sosa—were honored at the September 25, 1999 game and the retired players serenaded the crowd of 39,000 with their rendition of “Take Me Out to the Ballgame” during the seventh-inning stretch.
Although there was some apparent recency bias in the fans’ voting, Hartig was generally satisfied with the results. If he had to pick one slight, however, it would have been 1940s outfielder Bill “Swish” Nicholson, “what a great slugger and an even nicer person!” Ed also wished that he had thought to honor a trainer (Andy Lotshaw), equipment manager (Yosh Kawano), and traveling secretary (Bob Lewis) on the All-Century team photo after the fan’s selections were tallied.
As for his All-Century starting lineup, Ed would have gone with this squad:
(Cards are unnumbered, list presented in alphabetical order)
Grover Alexander
Ernie Banks (Vine Line’s “Player of the Century”)
Mordecai Brown
Phil Cavarretta
Frank Chance
Andre Dawson
Mark Grace
Charlie Grimm
Stan Hack
Gabby Hartnett
Billy Herman
Fergie Jenkins
Andy Pafko
Ryne Sandberg
Ron Santo
Lee Smith
Sammy Sosa
Bruce Sutter
Joe Tinker
Billy Williams
Hack Wilson
Notes:
Special thanks to Chicago Cubs team historian and Chicago SABR member Ed Hartig for all of the behind-the-scenes information into how he helped the Cubs create this beautiful card set.
Baseball announcers occupy an odd space that straddles the line between team members and adoring fans. They often enjoy tenures longer than players and managers and can weather multiple ownership changes. Some broadcasters even become so connected with a ballclub’s identity that their popularity rivals the team’s Hall of Fame ballplayers. Numerous broadcasters have been inducted into team halls of fame and 47 individuals have received the Ford C. Frick Award, presented annually to a broadcaster for “major contributions to baseball,” an honor that includes recognition (but not official enshrinement) at the National Baseball Hall of Fame in Cooperstown. In fact, beloved announcers such as Harry Kalas, Bob Uecker, Dave Niehaus, Harry Caray, Ernie Harwell, and Jack Buck have been immortalized with statuary at the ballparks where they called (or continue) to call games for their given teams. Yet, there is seemingly little love paid to announcers by card manufacturers, especially with national issues.
The Trading Card Database (“TCDB”) lists just 471 results for a search of baseball cards in the “announcer” category, with the first result appearing in 1933. This list includes cards depicting nightly sportscasters and disc jockeys, which would tend to indicate that the “announcer” label is often used as a catchall for any on-air broadcasters, not just play-by-play commentators or game analysts.
The labeling issue becomes more apparent, however, when totaling the number of cards for the broadcasters who have been bestowed the Ford C. Frick Award. This number is 580, over 100 more cards than found on the “announcer” list.
Searching TCDB by individual broadcasters’ names demonstrates conclusively that the “announcer” label (“ANN”) is not used with any consistency. For example, a search for “Vin Scully” will produce 114 results, cards spanning from 1960 through 2023, including parallel releases and autographed editions. A search of “Vin Scully” and the “ANN” qualifier, however, produces only two results.
Considering that Pittsburgh’s KDKA first broadcast a baseball game on August 5, 1921 (an event itself worthy of commemoration on a baseball card), it seems incredible how few broadcaster cards have been issued in the past 100 years. Indeed, utility infielder Tommy LaStella has had more cards issued since 2011 (586) than all of the Ford C. Frick Award winners combined (580).
1976 Fleer Official Major League Patches – Baseball Firsts, #6
Radio (Baseball Card) Pioneers
The 1933 Minneapolis Millers of the American Association were managed by future Hall of Famer Dave Bancroft and featured first baseman Joe Hauser, who clobbered an incredible 69 home runs that season. Although Wheaties is best known for its collectible cereal boxes, the company also promoted minor league baseball across the country and particularly in Minneapolis, hometown of parent company General Mills. That season, Wheaties issued a set of 24 postcards (4″ by 5-9/16″) featuring the players, manager, and for the first time ever documented, a team’s radio broadcaster.
1933 Wheaties Minneapolis Millers Postcard
Jerry Harrington, dubbed “The Little Irish Tenor,” was a multi-talented performer for WCCO radio and was often called upon to sing and participate in dramatic productions for the station. In 1929, Harrington broadcast play-by-play accounts of the Millers’ away games from the sports office of The Star and beginning in 1930, was tabbed to broadcast both home games from Nicollet Park and the away contests. The 1933 Wheaties Harrington issue is his one and only baseball card.
A second set of similarly designed and sized postcards were purportedly produced by Wheaties for the Seattle Indians in 1933; however, only five postcards from this set have been found so it is unclear whether they were ever released to the public. One of the cards that has surfaced, however, is that of Indians broadcaster Leo Lassen. Lassen was named the publicity director of the Pacific Coast League Seattle club in 1931 and began broadcasting games for the team that season. He was a mainstay radio voice of the Indians and Seattle Rainiers through 1958 and was inducted into the Washington Sports Hall of Fame in 1974. The 1933 Wheaties Lassen issue is his one and only baseball card.
In 1938 Chicago’s Sawyer Biscuit company issued a set of 52 cabinet photos depicting Chicago Cubs and White Sox players available as a mail-in promotion. The set included Bob Elson, a tireless broadcaster who handled the home games for both the Cubs and White Sox from 1931 through 1942 for WGN radio.
1938 Sawyer Biscuit
TCDB also lists a second “broadcaster” card for Babs Gillen, but no example of the card has ever been found. According to some sleuthing by Pre-War Cards it appears that Delores “Babs” Gillen was Elson’s broadcast partner for certain radio programming, but she was not known to announce baseball games with him. Regardless, the Elson cabinet photo appears to be the first issue for a Major League broadcaster.
The Emergence of Baseball on the Radio
As of the 1940 Census, 28 million households in the United States (82.8% of the population) owned a radio and baseball owners began realizing that broadcasting games—both home and away—was a terrific way to promote live baseball at their respective ballparks, especially on the home front during World War II. Still, very few broadcaster cards were issued in the 1940s.
The Reds sold a boxed team card set in 1940 called the “The Cincinnati Reds by Harry Hartman, Radio Sports Expert” published by the Harry Hartman Publishing Company. Coincidently, Hartman was the radio voice for the Reds on WCPO and was entering his 13th season behind the microphone in 1940, a season in which the Reds won their first World Series championship since defeating the Black Sox in 1919. A card featuring Harry Hartman was included in his namesake set.
1940 Harry Hartman Cincinnati Reds (W711-2), Harry Hartman
The 1940 Playball set included a “Former Major League Star” card for Gabby Street, who had last played for Yankees in 1912 (although he had given himself an at-bat as Cardinals manager in 1931) and last managed for the Browns in 1938. The final line of his biography on the reverse of his card indicated “Today, he is doing baseball broadcasting in St. Louis.” Street was eventually paired with Harry Caray in the Cardinals’ booth, and they worked together from 1945 to 1950.
The balance of cards for the 1940s belong to Oakland Oaks announcer Bud Foster, with a string of issues in each of 1946, 1947, 1948 and 1949 sponsored by either Remar Bread or Signal Oil/Gasoline. Foster was voice of the Pacific Coast League’s Oaks from 1946 through 1956, as the team won three championships during his run (1948, 1950, 1954). In 1985 Foster reminisced how ballparks in the old days had no radio booths for him on the road so he would just set up behind home plate, which left him vulnerable to bombardment by cushions, peanuts, and insults hurled by the opposing fans. Additionally, Mel Allen was featured in Yankees Picture Packs in 1948 and 1949, with seemingly indistinguishable photos.
1946 Remar Bread Oakland Oaks
Video Killed the Radio Star
In 1950 approximately 9% of American households had a television, but by 1960 the figure had skyrocketed to 90%. Regardless, there were still just a smattering of announcer cards issued in the 1950s, even despite the rise of the national baseball card product offerings by Bowman and Topps that included non-players such as umpires and league executives.
In 1954, future Ford C. Frick Award winner Bill King was named fulltime sports director at KOLN and KOLN-TV in Lincoln, Nebraska and took over the play-by-play announcing duties for the Western League Lincoln Chiefs. Weaver’s Wafers were a potato chip brand that issued a set of cards for the Chiefs in 1954 that included a card for King that encouraged fans to follow the team on KOLN. Despite King having announced for the San Francisco Giants from 1958-1962 and the Oakland A’s from 1981-2005, the 1954 issue is the only card that appears to have been issued for the venerable broadcaster. The card itself is exceedingly rare and the distribution method is sure to send shivers up the spines of condition conscious collectors—the cards were affixed to the outside of the potato chip bags with staples!
1954 Weaver’s Wafers
Future Ford C. Frick Award recipients Russ Hodges (New York Giants and San Francisco Giants) and Lon Simmons (San Francisco Giants) both appeared on a number of team-issued cards at the end of the 1950s, but only in their capacity as broadcasters for the San Francisco 49ers football team. Simmons did not get a proper baseball card until 1999, the Giants’ final season in Candlestick Park. His famous home run call “Tell it Goodbye!” was a fitting farewell to the ballpark, where he had broadcast since the Giants first began playing there in 1960.
1999 Keebler San Francisco Giants, #27
The final announcer card issued in the 1950s featured Mark Scott, host of the popular Home Run Derby television show. The 1959 Home Run Derby baseball set contained 20 cards measuring 3-1/4” by 5-1/4” and included the participants in the game show filmed at Wrigley Field in Los Angeles. Scott died unexpectedly on July 13, 1960 from a heart attack and the show did not return for another season.
1959 Home Run Derby
Vin Scully and the Rise of the Beloved Broadcaster
The first TCDB entry for Vin Scully is the 1960 Union Oil 76 “Meet the Dodger Family” booklet, which he shares with Jerry Doggett. Scully’s first proper baseball card—a whopper at 4” by 6”—is the 1971 Ticketron Dodgers issue, which also happens to feature Jerry Doggett, with whom he worked from 1956 through 1987. All told, Scully is the leader of all broadcasters with 114 different cards listed on TCDB. Perhaps surprisingly, however, Scully did not make another appearance on a baseball card until 2004, when Fleer produced a 10-card “Greats of the Game” subset that paired announcers and players, such as Scully/Steve Garvey, Harry Caray/Ryne Sandberg, and Jon Miller/Cal Ripken Jr. Accordingly, the overwhelming majority of Scully’s cards were issued after he had already turned 77 years old.
1960 Union Oil 76 Meet The Dodger Family Booklets – Vin Scully / Jerry Doggett
Vin Scully’s first inning broadcast partner for the 1989 All-Star Game was former Chicago Cubs broadcaster (and newly former POTUS) Ronald Reagan. Reagan made a cameo on a recent Bo Jackson card, as a broadcaster.
2022 Topps Stadium Club Chrome, #95
Ernie Harwell is next on the list with 80 cards. Harwell is best known for his work for the Detroit Tigers after stints with the Brooklyn Dodgers, New York Giants, and Baltimore Orioles. By the time his first card was issued in 1981, Harwell was already beginning his third decade of work as the Tigers’ main play-by-play announcer. Harwell holds the distinction of having been traded for a player when he was acquired by the Dodgers to broadcast in 1948 from the Class-AA Atlanta Crackers in exchange for minor league catcher Cliff Dapper. Harwell broadcast for the Detroit Tigers from 1960 to 1991 and 1993 to 2002. Detroit’s Wayne State University’s baseball team plays its home games at Harwell Field, named in his honor.
1981 Detroit News Detroit Tigers
Harry Caray is third with 68 cards. Caray’s first known card is a playing card with a photo shared with another Chicago broadcasting legend, Jack Brickhouse, issued in 1985 (40 years after Caray broadcast his first game for the St. Louis Cardinals.) Caray popularized the live singing of “Take Me Out to the Ballgame” while a White Sox broadcaster and made the tradition so popular at Wrigley Field that a video of him signing the song is still played for the seventh inning stretch when the Cubs do not otherwise arrange for a celebrity to handle the honors. Perhaps Caray’s most interesting baseball card is his cameo on Michael Jordan’s 1995 Upper Deck, featuring a photo taken at Wrigley Field when the White Sox visited for an exhibition game against the Cubs on April 7, 1994.
1995 Upper Deck, #200
Mel Allen boasts 58 cards and was awarded the first-ever Ford C. Frick Award in 1978, along with Red Barber (the only year in which more than one award was given). Allen, a 1937 graduate of the University of Alabama Law School, immediately pursued a career in broadcasting and handled CBS radio duties for the 1938 World Series. He was hired as the Yankees’ play-by-play announcer in 1940 and saw 12 championship teams from his position behind the microphone through 1964. Allen eventually returned to the Yankees broadcast team in the mid-1970s, but it was his work with This Week in Baseball starting in 1977 that made Allen’s voice synonymous with Saturday baseball highlights to kids across the country. How about that?!
1948 New York Yankees Picture Pack
Rounding out the top five is Philadelphia’s Harry Kalas with 33 cards. Kalas first appeared on a Tastykake card in 1984, along with fellow Phillies broadcasters Chris Wheeler, Andy Musser and Richie Ashburn. Kalas began his broadcasting career in 1961 with the Hawaii Islanders and made his Major League announcing debut with the Astros in 1965. After moving over to Philadelphia in 1971, Kalas became a mainstay in the booth, working side-by-side with Ashburn until Ashburn’s unexpected passing in September 1997.
1984 Tastykake
Comprising some of the most popular men to ever call a baseball game, Vin Scully has a star on the Hollywood Walk of Fame (and a statue at Dodger Stadium cannot be far behind). Ernie Harwell has a statue at Comerica Park in Detroit. Harry Caray has a statue at Wrigley Field in Chicago. Mel Allen has a plaque in Monument Park at Yankee Stadium in New York. Harry Kalas has a statue at Citizens Bank Park in Philadelphia. A bust of Jack Buck is displayed outside Busch Stadium in St. Louis. And Bob Uecker (who has 23 cards for broadcasting and another 51 related to his role as a player) is honored with two statues at American Family Field in Milwaukee.
The Disconnect
By contrast, Denny Matthews has just two cards, despite having been inducted into the Royals Hall of Fame and having been in the Kansas City broadcast booth since the team’s inception in 1969.
2012 Panini Cooperstown Voices of Summer
Similarly, Jaime Jarrín, the Dodgers’ Spanish-language play-by-play announcer from 1959 through 2022 (also honored with a star on the Hollywood Walk of Fame) only has two cards.
Felo Ramirez was the Spanish radio announcer for the Miami Marlins from 1993 until April 2017. His prior broadcasting work included calling Roberto Clemente’s 3000th hit, and Hank Aaron’s 715th home run. Despite his distinguished career, no cards of Ramirez have ever been listed on the TCDB. All three of these men are Ford C. Frick Award recipients. In fact, 36 of the 47 Frick Award winners have nine or fewer cards, with eight having none.
Card manufacturers are seemingly content to issue the same card with a border in every conceivable color combination. Allen and Ginter issues feature eggs, spiders, and even the Taylor Ham versus pork roll debate. Yet, broadcasters remain largely ignored.
2022 Topps Allen & Ginter
A closer inspection of the checklists for each of the broadcasters listed here quickly reveals that a large proportion of the most recent issues comprise rare, autographed cards or other limited releases for which photos are not even available.
The men and women who dedicate their lives to the craft—and provide the soundtrack for our collective summers—deserve more cardboard love. These amazing tributes by Mike Noren of Gummy Arts are a great start.
Gummy Arts – Mel Allen
Gummy Arts – Bob Uecker
Gummy Arts – Vin Scully
Mic drop.
Special Thanks:
Mike Noren of Gummy Arts graciously allowed the SABR Baseball Cards Committee to include images of his cards in this article, including the Bob Uecker card, which has never been shown publicly before.
Jason Schwartz and Nick Vossbrink for their typically brilliant guidance and support.
Notes:
TCDB is mainly crowdsourced and there are numerous examples of cards not marked with the announcer label or otherwise improperly classified. The numbers cited herein are as accurate as possible based upon the available information. Moreover, several broadcasters cover multiple sports and may have cards that are more properly classified as a football, Olympic or multi-sport issue. Regardless of sporting classification, all cards were counted, except for those individuals who were players and had separate playing-days cards issued. Playing-days cards were not included.
In near lockstep with the explosion of legal online sports gambling sites, the card-collecting industry has seen a proliferation of card breakers—parties that buy unopened boxes of sports cards and open them live on social media streams. Hobbyists (a/k/a gamblers) pay for spots in the “break” that will entitle them to keep all the cards in the box or case from a particular team. The outfits publicize their breaks with fantastic claims, “No matter which breaking method you choose, you always have a chance at uncovering the next Holy Grail!”
2022 Bowman’s Best case break offering from Filthbomb Breaks
In most breaks participants pick a team or several teams (typically priced commensurate with the potential values of the most expensive cards for each such team) or a random distribution of teams (usually for a less expensive entry fee that is the same for each participant). The card packs are opened live, and the cards are shown individually so that all viewers can see who gets what.
The main enticement for participants is the hope for a “hit,” a valuable—if not contrived—insert like a 1/1, rare parallel, or autographed card that far exceeds the entry fee. Card breakers profit by charging more for spots than the cost of the unopened box or case. If all of this sounds a bit like gambling, you are probably right.
“While surprise-based products can be sold, they are currently restricted on our platform. This means that sellers who wish to sell or promote such products must abide by our TikTok Shop Gambling, Gifting and Surprise-based Product Control Guidelines.”
TikTok guidelines
Social media giant TikTok announced in early March 2023 that it will no longer allow card breakers to broadcast their videos on its platform because of concerns that the activity may constitute illegal gambling. TikTok’s terms and conditions regarding surprise-based products were updated to specifically include “Surprise Trading Card Packs” and now require any presenter (e.g., card breaker) to sell any baseball cards in “the manufacturer’s original packaging and content without any alterations. All sold product(s) must also be sealed.”
PayPal had previously cracked down on breakers through its gambling prohibition, even when the specific activity was lawful or not legally defined as gambling, including: “Games of chance and games of skill – Includes any activity with an entry fee and a prize, regardless of whether the outcome is determined by chance or skill.”
Although the actual factors vary by state, the elements of gambling typically require (1) consideration [the price charged for entering the break], (2) chance [that the box(es) opened may contain chase cards such as 1/1s, parallels, and autographed cards, or alternatively, that the cards that are worth less than the entry fee] and (3) a prize [the insert cards (“hits”) have significant value on the secondary market].
You may be familiar with the phrase “no purchase necessary” when entering a contest promoted by a reputable company. Offering participants an option to enter a contest for free eliminates the “consideration” requirement—required to deem a contest illegal—even if a particular entrant had paid to purchase a product for entry. Not surprisingly, card breakers rarely allow free entry.
There are dozens of highly regarded card breakers operating now, however, the industry is unregulated and susceptible to issues. In 2022, Backyard Breaks got into some hot water when they decided to keep a Trevor Lawrence “Gold Kaboom” card (they believed to be valued in excess of $15,000) found during a break, instead of sending it on to the person to whom it was originally promised.
Otherwise, a breaker who is adept at slight-of-hand can easily make sure valuable cards are not seen or distributed. In fact, there are articles available to help new breakers appear trustworthy. These recommendations include: keeping both hands on the screen, using multiple cameras, and showing that the box is empty.
Several baseball card manufacturers faced charges of illegal gambling in the 1990s when valuable insert cards first took the hobby by storm. [The card manufacturers ultimately won because a customer’s disappointment from not finding an insert card was not sufficient to establish damages under the Racketeer Influenced and Corrupt Organizations Act.] It seems like it is just a matter of time before a disappointed break participant pursues a similar case against a breaker.
It remains to be seen whether other social media outlets like YouTube, Facebook, and Twitch will follow TikTok’s lead due to the potential that card breaks constitute illegal gambling or if lawmakers will seek to impose any regulations on the booming card breaking business. As for now it is still the Wild West out there for gamblers—caveat emptor.
Author’s Note: This is the fourth, and final, installment in a multi-part series that explores the legal backstories that have shaped (and continue to shape) the baseball card industry.
Worth a Gamble?
In 1996, a group of plaintiffs filed lawsuits against card manufacturers in federal courts across the country claiming that including insert cards in their wax packs constituted illegal gambling activity under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and that they were entitled to damages for not having received one of the rare autographed cards in the packs purchased. “RICO, in pertinent part, defines ‘racketeering activity,’ as ‘any act or threat involving … gambling. which is chargeable under state law and punishable by imprisonment for more than one year.’ 18 U.S.C. § 1961(1)(A).” Plaintiffs claimed all elements of gambling were met, which required (1) consideration [price of the pack], (2) chance [chase cards were inserted randomly] and (3) a prize [chase cards had significant value on the secondary market].
Back of 1996 Pinnacle Baseball package showing odds of finding insert cards
The first of these cases to be decided was the lawsuit filed against Pinnacle Brands in Texas. On April 2, 1997, the court dismissed the case because the purchasers of the packs of cards “got exactly what they paid for,” namely “six to twenty cards in a pack with a chance that one of the cards may be of Ken Griffey Jr.” Accordingly, the plaintiffs “had not suffered any injury to their business or property.” Without a tangible financial loss, plaintiffs had no standing to pursue a RICO action. This decision was affirmed by the Fifth Circuit Appellate Court on April 22, 1998.
While the Pinnacle case was ongoing, a RICO action was pending in California against Upper Deck. That court, however found that because plaintiffs alleged that “a portion of the purchase price” was paid as consideration for the chance of winning a chase card, they had adequately alleged a cause of action under civil RICO. Upper Deck’s motion to dismiss the case was denied.
The court held that the value of the chase cards were “readily ascertainable in Beckett’s monthly trading card magazine.” Further, “when someone enters a hobby shop or trading card shop and purchases a package of Upper Deck cards, that person can immediately sell any chase cards he receives to the shop owner for the value quoted in the price guides.” (Though the assumption a shop owner would pay full price for a card is a leap of logic.) This potential arrangement made the chase cards “almost as good as cash,” tantamount to a winning scratch-off lottery ticket.
The court also made an astute observation that seemingly persists to this day—pack buyers “do not care whose face is on the card; they only care about its value in the secondary market.” In the footnotes, however, the court warned that if the odds on the packages were set correctly, there would be no net gambling losses, though the record did not divulge whether the odds stated correctly reflected the value of the chase cards on the secondary market.
Eight of these similar baseball card-RICO cases were eventually consolidated in California where the court was asked to decide whether the random inclusion of limited-edition cards in packages of otherwise randomly assorted cards constituted unlawful gambling in violation of RICO. The district court ultimately dismissed all of the lawsuits trading card purchasers “were not injured in their business or property” as required by the RICO statute. The district court’s opinion was affirmed by the Ninth Circuit on August 20, 2002, which held that “disappointment upon not finding an insert card” was not an injury to property and did not give the plaintiffs standing to sue for civil damages under RICO. Likewise, the plaintiffs could not recover for having developed a “habit” of buying cards to find the chase cards.
Upper Deck and Ken Griffey Jr. take on Topps
Although the Major League Baseball Players Association (MLBPA) had negotiated a licensing agreement with Upper Deck for use of players’ names and likenesses, that agreement did not control game-used items obtained directly from the player. Several stars including Ken Griffey Jr., Sammy Sosa, Jose Canseco, and Alex Rodriguez executed “highlight agreements” with Upper Deck that purported to give Upper Deck the exclusive right to sell cards that incorporated game-used equipment and memorabilia.
When Upper Deck learned that Topps was advertising certain cards in its 2001 Topps Gold Label issue would include tiny sections of game-used jerseys and bats, Upper Deck and Ken Griffey Jr., individually, sued to stop Topps from releasing cards of those players with whom they had contracted. They alleged that Topps did not have a license or permission from the players or the MLBPA to produce cards containing game-used equipment.
Topps countered that it had a licensing agreement with Ken Griffey Jr. that was valid through 2003 and dated originally to 1987, “before Upper Deck even existed.” This agreement gave Topps the non-exclusive right to use Griffey’s name and likeness, “the very right that Upper Deck purports to have obtained exclusively through a later agreement.” Topps argued that it legally obtained the Griffey jersey on the secondary market “at a relatively modest cost and at no injury to Griffey.” Topps even mentioned that Upper Deck had already litigated and lost the same issue when they tried to stop Score Board, Inc. from selling autographed Mickey Mantle memorabilia (as covered in Part III).
2001 Topps Gold Label
MLB Award Ceremony Relics Ken Griffey Jr. (Jersey Relic – #GLR-KJ)
Upper Deck’s motion for temporary restraining order was denied on March 6, 2001. The case was dismissed voluntarily without prejudice on June 12, which gave Upper Deck the right to refile if they had so chosen. Regardless, Topps issued its special edition 2001 Gold Label award winner cards, including cards honoring Ken Griffey Jr.’s 1997 MVP season that incorporated bat and jersey relics.
Squeeze Play: Topps and Upper Deck Survive
Production of distinct baseball card products peaked in 2003 as card companies inundated the market with 91 separate major issues packaged under brand names including Bazooka, Bowman, Donruss, Finest, Flair, Fleer, Leaf, Playoff, SP, Stadium Club, Topps, Ultra, and Upper Deck. Another 87 major issues followed in 2004 and 90 in 2005. (You may recall that the MLBPA had admitted to a “glut” in the trading card market a decade earlier in the Cardtoons litigation.)
On July 21, 2005 the MLBPA made a major announcement—it was scaling back its baseball card licenses to just two manufacturers: Topps and Upper Deck. The MLBPA’s Director of Trading Cards and Collectibles, Evan Kaplan, explained “the presence of fewer products in the marketplace will reduce consumer confusion and clutter on retail shelves” with a goal to have no more than 40 MLBPA-endorsed baseball products. The MLBPA also mandated that a rookie card logo would be required to appear on cards of players who had made their MLB debuts and that “rookie cards will no longer be issued before they reach the Majors.”
Venerable manufacturer Fleer had closed its doors in May 2005, unable to service $30 million in debt. Fleer filed an assignment for the benefit of creditors action in Burlington County, New Jersey (a state court process akin to a federal Chapter 7 bankruptcy filing) and was appointed a lawyer to manage the repayment of its debts. As part of the liquidation, Upper Deck purchased Fleer’s intellectual property and diecast toy car business for $6.1 million in July—a fraction of the $25 million Upper Deck had reportedly offered Fleer just a year prior. On September 9, an auction was held in which Fleer’s remaining office furniture, equipment, sports cards, and a memorabilia stockpile was sold off.
Major issues in 2006 plummeted to just 38 sets, all manufactured by Topps and Upper Deck. Still viable, Donruss was left out in the cold, but this was not the last time we would hear from the company.
Cool Papa Bell and the Cards that Shouldn’t Have Been
Connie Brooks was James “Cool Papa” Bell’s daughter and executrix of his estate following his death on March 7, 1991. Brooks granted licenses to Upper Deck to issue Bell cards in 1994 and 2001, along with other licenses for clothing, throw blankets, and Wheaties boxes in 1996.
In late 2004 Topps called Brooks to negotiate a license to issue Bell cards in 2005. At the time of this call Brooks did not know—and the Topps representative did not mention—that Topps had already issued seven different Cool Papa Bell cards in 2001 and 2004. Following the call, Topps sent Brooks a licensing proposal dated December 17, 2004 that offered $5000 in exchange for the right to use Bell’s name and image for 2005. The cover letter sent with the blank agreement stated that Brooks had agreed to the arrangement during the call, though she denied having done so. Brooks did not sign or return the proposal.
Not long thereafter Brooks learned that Topps, in 2004, had already produceda Cool Papa Bell card without her knowledge or permission. She contacted Topps and was provided a copy of the 2004 eTopps card and 2004 “Tribute Hall of Fame” card featuring Bell, along with a promise the company was “still looking for other cards Topps may have published depicting Bell.”
2001 Topps What Could Have Been – James “Cool Papa” Bell (#WCB4)
Later in 2005 Brooks learned that Topps had also issued Bell cards in 2001. She took exception to the narrative on the back of the 2001 card, which stated, “Cool Papa, who once stole more than 175 bases in a 200-game season, earned his nickname after falling asleep right before a game.” Brooks asserted the description was false and derogatory. William (Bobby) Robinson’s daughter Patricia Hawkins wrote to Judge Cote imploring that Bell “was a credit to his family, his race, his teammates and history as set by examples of his life and lifestyle, both impeccable.” Brooks added that Bell “never indulged in alcohol, smoked cigarettes, or used drugs. He was not a clown, drunkard, or nodding buffoon.” Without any pension provided by the Negro League, Bell worked 22 years as a custodian and night watchman at the St. Louis City Hall until his retirement.
Brooks complained that “Topps’ false statement [regarding the origin of the ‘Cool Papa’ nickname] will be read by many children and may be their only glimpse into the world of Negro League baseball and my father’s career.” Topps responded with an offer of $35,000 in exchange for Brooks executing a settlement agreement and release of liability. She refused and demanded a listing of all Bell cards Topps had produced.
By letter dated January 31, 2006, Topps provided Brooks with a list of “all cards of Cool Papa Bell produced by Topps from 2001-2005.” Brooks responded by filing a lawsuit against Topps on March 27, 2006 claiming Topps had used Bell’s “name, likeness, signature, intellectual property rights, and publicity rights” without authorization and had published defamatory information about Bell. Brooks asserted formally that Bell earned the nickname “Cool” for remaining calm under pressure and his manager Bill Gatewood added “Papa” to the end.
Topps countered that Bell’s right of publicity died with him and the company was free to use his image on baseball cards without needing permission from Brooks. Alternatively, Topps claimed it had been granted permission by Major League Baseball to use Bell’s likeness on the cards it issued (though Topps never produced any evidence to support this doubtful contention). Further, Topps responded that it had taken the information regarding the source of Bell’s nickname from the book Players of Cooperstown: Baseball’s Hall of Fame, published in 1997.
On December 21, 2007 Judge Denise Cote issued her decision granting Topps’ motion for summary judgment. Unfortunately, Brooks had not filed the right of publicity case within the one-year statute of limitations afforded by the underlying state law. The court found that the most recent Bell card was published on November 1, 2004 and refused consider Brooks’ argument that the card really had not been truly “published” on that date because it was distributed in sealed packages. Moreover, Topps had not made affirmative misrepresentations regarding the prior publication of Bell cards to Brooks within the year that those most recent cards were marketed. Brooks’ claims of false endorsement, false advertising and unfair competition also failed; Judge Cote found in Topps’ favor. In other words, Topps was free to have issued over 87,000 individual cards depicting Cool Papa Bell without permission.
Brooks filed an appeal, which was dismissed on November 3, 2008, presumably because the parties had reached a voluntary settlement.
Major League Baseball v. Donruss
Major League Baseball (MLB) reported revenues from baseball card licensing in excess of $75 million for the decade preceding 2009. However, a shift in demand had decreased the total market for all trading cards from approximately $1 billion at its height to $200 million. Further, the baseball card segment within the trading card market (including non-sport cards) had decreased from 75%-80% in the mid-1980s to just 15%-20%. In light of the prevailing market conditions in the mid-2000s, MLB had chosen to pare down its list of companies licensed to manufacture baseball cards to help stem further diminution of trading card licensing value.
2008 Donruss Threads Tom Seaver (#19), Madison Bumgarner (#91)
When its licensing agreement with Donruss expired on December 31, 2005, MLB chose not to renew. That expired license agreement provided explicitly that Donruss would not use any MLB trademarks “in any capacity” without prior written consent, to include “primary colors of the MLB clubs in combination with baseball indicia or the MLB Clubs’ geographic designation.” Donruss eased its way back into the baseball card market in 2007 with its Elite Extra Edition set of 143 cards, which showed draft picks in their college uniforms or business suits and referenced the drafting team only by city name and an “AL” or “NL” league designation.
The Donruss Threads issue in 2008, however, caught MLB’s eye because the set included “numerous cards depicting former Major League Baseball players in the MLB Uniform Trade Dress and featuring various other MLB Marks.” MLB acknowledged that Donruss attempted to obscure or alter team logos, but the uniforms remained readily identifiable. (MLB also objected to the use of Minor League Baseball trademarks in the set pursuant to an agency agreement by which the names and likenesses of MiLB ballplayers were controlled by the respective parent MLB club.)
The matter was settled for a confidential dollar amount. A consent judgment was entered on August 14, 2009 in which Donruss was permanently enjoined from using any MLB marks and went as far as to prohibit Donruss from using an image featuring “a component of a Major League Baseball uniform that is airbrushed, intentionally blocks or covers, or otherwise alters, any of the MLB marks.” All offending product that had not been previously sold was to be destroyed. Finally, Donruss was precluded from opposing, cancelling, or interfering with the use or registration of MLB trademarks.
Panini bought Donruss in March 2009 and the newly christened “Panini America” issued Donruss Elite Extra Edition sets in 2009 and 2010 featuring draftees in their college uniforms and listing their drafting club only by city name. The 2011 Donruss Elite Extra Edition was a 25-card set that featured current MLB players, but Donruss cleverly had each player pose in generic pants and a plain t-shirt (and probably with a company lawyer in attendance).
Exclusive Details: MLB Cuts Ties with Upper Deck
In August 2009, Major League Baseball Properties (MLB) announced that it had awarded Topps a multiyear deal effective January 1, 2010 to become its exclusive trading card partner, with the hope that by dropping Upper Deck, Topps could “invigorate card collecting, especially with young fans.” Former Walt Disney Company CEO, Michael Eisner, who had acquired Topps in 2007, declared “it’s been difficult to promote cards as unique and original.”
In the wake of the news, Upper Deck voiced its intention to continue manufacturing cards and that they were going to analyze whether they could really be banned from depicting MLB logos and jerseys as MLB claimed. Perhaps not surprisingly, Upper Deck continued to market cards, often showing MLB logos and would have to engage in a separate fight with Topps of the alleged appropriation of trademarked Topps card designs from the 1960s and 1970s.
The major card set offerings in 2010 (21) would be the leanest since 1991 (25).
Topps v. Upper Deck
Canadian bubblegum manufacturer O-Pee-Chee (whose mark was based on a robin named “Opechee” in Henry Wadsworth Longfellow’s epic poem “The Song of Hiawatha”) had a licensing agreement with Topps from the late 1950s through 1992 under which O-Pee-Chee produced trading cards using O-Pee-Chee trademarks for sale in Canada. During this time, Topps and O-Pee-Chee produced nearly identical baseball card sets but for card stock differences, branding, occasional photo variations, and the O-Pee-Chee versions including bilingual wording on baseball cards (required as of 1970 after the Canadian Parliament enacted the Official Languages Act in 1969, which gave English and French official status).
Throughout their longstanding relationship, however, none of Topps’ card design copyrights were transferred to O-Pee-Chee—theirs was strictly a licensing arrangement. In 1992, O-Pee-Chee severed ties with Topps and independently issued sets of baseball cards in 1993 and 1994 featuring original card designs.
In 2001, Upper Deck issued its first “Vintage” set comprised of cards—both front and back—that strongly resembled the 1963 Topps set. Similar Upper Deck Vintage sets followed in 2002 and 2003, each of which strongly resembled the 1971 and 1965 Topps sets, respectively. [Presumably Topps was not flattered by the imitation, but the author has not uncovered any litigation pertaining to Upper Deck’s production of these cards.] The final Vintage offering in 2004 sort of resembled 1954 Red Heart card fronts but featured completely different backs.
In 2007, Upper Deck announced it had acquired rights to relaunch the O-Pee-Chee brand name. Upper Deck produced hockey sets under the O-Pee-Chee banner immediately and in 2009 announced it would issue a 600-card baseball set under the O-Pee-Chee name. Available insert cards included separate series that resembled Topps’ 1975 baseball issue and Topps’ 1979-1980 hockey issue.
Upper Deck’s early promotional materials for the 2009 baseball set included mockup cards for Ichiro and Albert Pujols that were dead ringers for the 1971 Topps set design, with an additional insert set that resembled the 1977 Topps baseball card fronts. Ultimately, however, the 2009 Upper Deck O-Pee-Chee issue utilized a unique card design that did not appear to resemble any prior Topps products.
Topps took issue with the perceived design misappropriation and sued Upper Deck in federal court claiming that Upper Deck had not acquired any Topps’ copyrights when it made the deal with O-Pee-Chee. Topps also objected to Upper Deck’s use of autographed Topps cards having been incorporated into SP Legendary Cuts insert cards. Topps sought damages and an injunction to prevent Upper Deck from selling the cards that allegedly infringed on their copyrights.
Ultimately, Upper Deck’s attempted end around to use Topps designs by acquiring O-Pee-Chee rights was unsuccessful. Upper Deck settled for an undisclosed amount at a mediation held on November 2, 2009. No further O-Pee-Chee baseball sets were issued after 2009.
Upper Deck Thumbs its Nose at Major League Baseball
Despite its licensing agreement with MLB having expired on October 31, 2009, Upper Deck issued its 2009 Signature Stars and 2009 Ultimate Collection sets in January 2010. Upper Deck was also about to issue its full-blown 2010 flagship baseball card set (“Series I”) totaling 600 cards and complimented by a multitude of separate insert sets. The cards in each one of these sets, however, included photographs depicting MLB logos and marks that Upper Deck was no longer authorized to use.
2010 Upper Deck Albert Pujols (#463)
While the cards were licensed by the MLBPA, Major League Baseball sued Upper Deck in February 2010 to stop the sale of the cards and prevent the distribution of additional planned issues including a planned second series for the 2010 flagship set (cards 601-650). In its complaint, MLB alleged Upper Deck displayed “a pattern of utter disrespect for the contractual and intellectual property rights of those from whom it licenses valuable trademarks.” MLB otherwise claimed Upper Deck had defaulted on payments totaling over $2.4 million across a number of licensing agreements.
The parties reached a settlement in which Upper Deck agreed to pay $3,065,824.92 to Major League Baseball and on March 17, 2010, entered a consent judgment in which Upper Deck acknowledged it had used MLB’s marks without permission in its 2009 Ultimate Collection, 2009 Signature Stars, and 2010 Series I issues. Upper Deck was permitted to sell any remaining cards that had been manufactured on or before February 1, 2010.
As part of the agreement, Upper Deck was permanently enjoined from using MLB’s marks: “in whole or in part of current or former players, coaches or managers wearing any item resembling a Major League Baseball uniform,” including “jerseys, pants, jackets, caps, helmets, and catchers’ equipment.” The judgment also prohibited Upper Deck from using an image featuring “a component of a Major League Baseball uniform that is airbrushed, intentionally blocks or covers, or otherwise alters, any of the MLB marks.”
On February 29, 2012, Major League Baseball had to file a subsequent lawsuit against Upper Deck in an effort to collect the remaining $265,000, plus interest, that Upper Deck had failed to pay under the settlement agreement reached in 2010.
How to Catch a Buzz
Topps issued an “American Heritage: American Heroes Edition” set in 2009 that featured cards of famous athletes, politicians, scientists, and other historic figures and events on cards using designs from Topps’ past. Several of these cards honored NASA space missions and depicted patches, rockets, and the Space Shuttle.
2009 Topps Heritage American Heroes box
After being unable to negotiate a licensing fee with Topps, Dr. Edwin “Buzz” Aldrin took exception to several cards in the set Topps issued anyways that featured his name and likeness. He was also upset the product box used the famous “Visor Shot” photo of Aldrin taken by Neil Armstrong during the Apollo 11 moon landing—along with Mickey Mantle and Abraham Lincoln. (Aldrin objected even though his face is not visible, and he can be identified only if one were to focus in on his name badge.) The card for the Gemini XII mission, in particular, included this historical description on the reverse:
“Astronauts had operated outside the spacecraft before, but astronaut Buzz Aldrin’s smooth, multi-tasking 140-minute space walk outside of Gemini XII was what finally confirmed NASA’s highest hopes for extravehicular astronaut activity. Gemini XII’s flawless, computer-guided re-entry marked the end of Project Gemini; America was ready to shoot for the moon.”
On December 27, 2010, Aldrin filed a lawsuit against Topps in California claiming his name, image, and likeness were used improperly. Topps countered that it was permitted to use the photos and descriptions of Aldrin and his historic accomplishments because they were matters of free speech and an issue of public interest. Ultimately, the court found that Topps had a First Amendment right to use Aldrin’s name and likeness without need for permission or payment. The cards simply used “Aldrin’s name in the course of conveying information about his historically significant achievements” and were not advertisements for some other, unrelated product. Further, the photo used on the box was deemed a “mere adjunct” to the cards themselves and was also protected.
A Case of Mistaken Identity?
2007 Topps Fausto Carmona (#497)
Fausto Carmona went 19-8 with a 3.06 ERA for the 2007 Cleveland Indians, a season in which he finished fourth in Cy Young Award voting and garnered MVP votes. Carmona was an All-Star in 2010, and the Indians’ Opening Day starter in 2011. On January 19, 2012, Carmona was arrested in his native Dominican Republic for allegedly using a false identity. It was revealed that Carmona’s real name was Roberto Hernandez Heredia, and he was 31, three years older than he had claimed.
Ohio educator Aaron Cookson had invested heavily in his Fausto Carmona personal collection consisting of “323 rookie cards of Carmona/Hernandez, mostly autographed cards with a lot of high-end and high-grade examples.” Cookson estimated he had spent in excess of $5,000 for the cards and he felt betrayed by the false identity revelation.
On August 1, 2012 Cookson filed a small claims lawsuit against Roberto Hernandez in Franklin County (Ohio) Municipal Court seeking $3000 in damages (the statutory maximum). Cookson protested, “as you know, the age of an athlete plays an important factor in his/her on-field performance and how collectable investors/collectors view their cards or memorabilia. I spent a lot of time and money collecting and investing in a guy that I thought was three years younger than he really was. I believe I was defrauded.”
According to Cookson, who remains an avid card collector, the parties reached a confidential settlement subject to a non-disclosure agreement and the case was dismissed. Pitching under his actual name, Hernandez was ineffective in three starts for Cleveland in 2012 and was released after the season. He bounced around for another four more years but was never able to recapture the magic of his 2007 campaign.
The Mastro Auctions Scandal
As of February 2009, Mastro Auctions had reportedly auctioned off more than 100,000 lots and sold in excess of $300 million worth of collectibles, including high-end baseball cards and memorabilia. Principle, Bill Mastro, was indicted in 2012 on federal mail fraud charges for his role in artificially inflating auction lot prices through shill bidding practices (i.e., bogus bids used to create illusion of demand and boost final auction prices) and for his role in altered sports memorabilia items.
The infamous Mastro-trimmed T-206 Honus Wagner
On October 10, 2013, Mastro entered a guilty plea in which he admitted to the shill bidding scheme and specifically to having personally trimmed a T-206 Honus Wagner before selling the card in 1987. He failed to disclose his alteration of the card during his involvement with an auction of the card in 1991 by Sotheby’s (when the card was famously purchased by Wayne Gretzky and Bruce McNall for $451,000), when the card was submitted to PSA for grading in 1992 (famously the first card ever submitted to PSA for grading), and at a subsequent online Robert Edwards auction in 2000 for $1.1 million plus commission (famously the most ever paid for a single baseball card at the time). Mastro also admitted to having known that laboratory test results on the “1869 Cincinnati Red Stockings Trophy Ball” sold by Mastro for $62,000 revealed that it contained paint manufactured after World War II.
Based on his guilty plea to the felony charges, Mastro was sentenced to 20 months in federal prison and assessed a fine of $250,000.
Caveat Emptor
When famed collector and New York Yankees minority owner Barry Halper announced he would be auctioning off his sizeable collection in 1999, it caused quite a stir. The collection was so renowned the catalog became a collectible in its own right and auction house Sotheby’s produced a set of baseball cards to commemorate and promote some of the most important pieces up for auction. The Halper Collection auction was wildly successful and reportedly accounted for $21.8 million in sales.
The 16-card set produced by Sotheby’s featured photos on the front of famous events combined with select items up for sale. The set contained several Babe Ruth cards, a Pete Rose card with the Expos jersey worn when he smacked his 4000th hit (signed of course), a Black Sox card, Jackie Robinson card, and a Lou Gehrig card promoting the auction of his “final glove,” among others. The back side of each card bore an uncanny resemblance the 1953 Topps issue, complete with a cartoon.
1999 Sotheby’s Barry Halper Collection of Baseball Memorabilia Willie Mays (#7)
A Willie Mays card featured a photo of “The Catch” on the front and a 1950s Willie Mays Giants travel bag and signed hat up for auction. The reverse side offered auction estimates for a 1951 Willie Mays New York Giants signed rookie road jersey ($25,000-$35,000), travel bag ($1000-$1500), and signed hat ($100-$200).
Pennsylvania collector Michael Jacobs was the high bidder on two items at the September 1999 sale, having paid $63,000 for the rookie Mays jersey and $8625 for the bag. In July 2012, Jacobs had the jersey appraised by Leland’s of New York for insurance purposes. It appraised for $400,000.
About June 2013, Leland’s brokered a deal to buy the jersey from Jacobs for $675,000 in order to sell it immediately to a third-party buyer. Unfortunately, a subsequent examination deemed the jersey inauthentic—apparently, the name and number had been added sometime after the fact to a standard 1951 New York Giants jersey. Also, it was discovered that the stenciling on the travel bag was inconsistent with the style used at the time.
Jacobs sued the Halper estate, Sotheby’s, and Grey Flannel Collectibles, Inc., the company that had authenticated the jerseys according to the auction catalogue, which stated “Grey Flannel Collectibles, Inc. is honored to have had the opportunity to evaluate and authenticate this wonderful collection of uniforms and jerseys belonging to Barry Halper.” Grey Flannel undertook a basic authentication (e.g., comparing the jerseys to photos or genuine exemplars) and removed approximately 100 jerseys from the auction it could not confirm as authentic.
The auction catalogue also included a five-year authenticity guarantee that would serve to rescind the purchase of an inauthentic item and refund of the purchase price. Jacobs was well beyond the five-year timeframe when he learned of the issue but argued that defendants could not hide behind the guarantee when they fraudulently misrepresented that Grey Flannel had authenticated the jersey.
Ultimately, the court found that Jacobs could not show “Sotheby’s displayed an extreme departure from the standards of ordinary care applicable to auction houses in selecting and relying upon third-party authenticators for sports memorabilia.” The case was dismissed on July 26, 2016, a true example of “may the buyer beware.”
The Jacobs lawsuit was just another in a long line of cases in which the parties sparred over what appeared on a baseball card—and somewhat fittingly, a card (back) that resembled one of those early 1950s Topps issues where this all began.
Conclusion
Fanatics bought Topps for about $500 million in early 2022. As of 2026, Fanatics will have the exclusive right to design, manufacture, and distribute baseball cards per licensing agreements with both the MLBPA and MLB. Will this put an end to baseball card-related litigation? Not likely.
In October 2022, a Michigan man was sentenced to 30 months in prison for selling packs of vintage baseball cards that were opened, had the valuable cards removed, and resealed to look like unopened packs. Bryan Kennert had reportedly engaged in schemes to sell counterfeit sports cards and searched packs for at least 30 years. In fact, federal agents found bogus sports cards at his home that would have been worth $7.3 million if authentic.
Elsewhere, lawsuits roll on dealing with Topps redemption cards, Upper Deck logos on counterfeit cards, and a man in New York who has sued his mother to seek the return of valuable baseball cards she has refused to return to him.
More things change, the more they stay the same.
Notes
A sincere thank you to anyone who has enjoyed this series in light of its length and often tedious legal discussions. There are dozens of other cases that could have been included and may be given separate treatment down the road. If you know of a particular baseball card-related matter you think would make for an interesting article, please let me know.
Also, a hearty thank you is necessary for Jason Schwartz for his generous time with review and in making suggested edits along the way.
www.tcdb.com “Major Issues” comes straight from the Trading Card Database website. The author was unable to find a defined methodology for what constituted a “Major Issue,” but it seems like the sets listed were typically sold nationally (U.S. and/or Canada) in individual packs.
Cases
Price v. Pinnacle Brands, Inc., 96CV2150 (N.D. Tex. 1997).
Schwartz v. The Upper Deck Co., 956 F.Supp. 1552 (S.D. Cal. 1997).
Dumas v. Major League Baseball Properties, Inc., 104 F.Supp.2d 1220 (S.D. Cal. 2000).
Dumas v. Fleer/Skybox International, LP, 99CV1793-B (AJB) (S.D. Cal. 6/21/2000) (S.D. Cal. 2000). Major League Baseball Properties, Inc. v. Price, 105 F.Supp.2d 46 (E.D. N.Y. 2000).
The Upper Deck Company and Ken Griffey Jr. v. The Topps Company, Inc., 01CV00329 (S.D. Cal. 2001). The reason why Upper Deck gave up on the case is not clear but if a settlement had been reached, the dismissal would have been with prejudice.
Chaset v. Fleer/Skybox Intern., LP, 300 F.3d 1083 (9th Cir. 2002). Eight similar cases were consolidated against the ever-expanding list of defendants to include not only trading card manufacturers but the Major League Baseball Players Association, Major League Baseball Properties, Inc., NBA Properties, Inc., NFL Properties, Inc., National Football League Players Association, National Hockey League Enterprises, NHL Players Association, Walt Disney Company, Nintendo of America, Inc., Wizards of the Coast, Inc., and others. Judgments were entered dismissing the RICO claims without leave to amend and dismissing the supplemental state law claims without prejudice pursuant to 28 U.S.C. § 1367(c).
The Upper Deck Co., LLC v. Federal Ins. Co., 358 F.3d 608 (9th Cir. 2004). Upper Deck submitted the RICO claims to its insurance carrier, Federal Insurance Company, claiming that the alleged acts were covered under its policy. Federal refused to cover the claims on the grounds that there was “no accident or occurrence” as required under the policy. Despite having prevailed in the RICO cases, Upper Deck filed suit against its insurance company seeking to recoup the money it spent defending the case. The court found in favor of the insurance company, agreeing with the Federal there was no “occurrence” to have triggered the policy and, accordingly, there was no duty on the part of Federal to pay for Upper Deck’s attorneys.
Miller v. Collectors Universe, Inc., 65 Cal.Rptr.3d 351, 154 Cal.App.4th 1047 (Cal. App. 2007).
Brooks ex rel. Estate of Bell v. The Topps Co., Inc., 2007 WL 4547585 (S.D. N.Y. 2007).
Card / Release Date / Total Number of Cards in Series / Total Number of Bell Cards in Series
(1.) 2001 Topps Series II Baseball (base card) / April 16, 2001 / 51,800,000 / 34,800
(3.) 2001 Topps Chrome (refractor parallel card) / May 21, 2001 / Same series as (2) above / 5000
(4.) 2004 Topps Tribute Hall of Fame (base card) / November 1, 2004 / 217,000 / 2170
(5.) 2004 Topps Tribute Hall of Fame (gold parallel card) / November 1, 2004 / Same series as (4) above / 74
(6.) 2004 Topps Tribute Hall of Fame (Cooperstown Cut Signature Card) (“2004 Signature Card”) / November 1, 2004 / Same series as (4) above / 1
(7.) 2004 eTopps Classic (base card) / August 2, 2004 to August 9, 2004 / N/A / 938
Major League Baseball Properties, Inc. v. Donruss Playoff, L.P. and Donruss, LLC, 09CV00593 (S.D. N.Y. 2009).
The Topps Company, Inc. v. The Upper Deck Company, Inc., 09CV3780 (S.D. N.Y. 2009). The first O-Pee-Chee baseball card set was produced in 1965.
Major League Baseball Properties, Inc. v. The Upper Deck Company, LLC, 10CV00732 (S.D. N.Y. 2010).
Aldrin v. Topps Co., CV1009939 (C.D. Cal. 2011). After the ruling in their favor, Topps filed a motion to recover attorneys’ fees. Aldrin filed an appeal. The motion for attorney’s fees was denied and on May 2, 2012, the appeal was voluntarily dismissed, presumably because the parties were able to reach some type of confidential agreement.
Major League Baseball Properties, Inc. v. The Upper Deck Company, LLC, 12CV01512 (S.D. N.Y. 2012).
Cookson v. Hernandez, Franklin County (Ohio) Municipal Court, Case No. 2012 CVI 029028.
United States of America v. William Mastro, 12CR00567 (2012). The Mastro-trimmed T-206 Wagner was the first card ever submitted to PSA and received an 8/10 grade, but would not have been eligible for a number grade if the alteration had been disclosed or independently discovered by PSA.
Jacobs v. Halper, 14CV06515 (E.D. Pa. 2014); 116 F. Supp. 3d 469 (E.D. Pa. 2015). Note: The checklist for the “1999 Sotheby’s Barry Halper Collection of Baseball Memorabilia” set found on www.tcdb.com is inaccurate. Here is the actual checklist: 1. Sotheby’s header card, 2. The Babe’s Last Bat, 3. Lou Gehrig Day, 4. Joe D’s Rookie Year, 5. The Black Sox Series, 6. The M&M Boys, 7. Willie’s Catch, 8. The Shot Heard ‘Round the World, 9. King of Competition (Ty Cobb), 10. Pine Tar Rhubarb, 11. A Whole New Ballgame (Internet Auction), 12. Pete Rose’s 4000th Hit, 13. Babe Ruth Shows Kids How It’s Done, 14. Babe Ruth, Newspaperman, 15. The Barnstormers (Bob Feller and Satchel Paige), and 16. Jackie’s Promise.
Upper Deck v. Miguel Flores, 21CV01182 (S.D. Cal. 2021).
Wheeler v. The Topps Company, 22CV02264 (S.D. N.Y. 2022).
Articles
Alan Walker, “Hey! Wow! Lookithat! Look at all that bubble gum!,” Calgary Herald, May 8, 1971: 77, 79, 81.
Daryl Slade, “Company is bringing back rookies,” Calgary Herald, September 13, 1992: 57.
Rod Hirsch, “Wagner card is heavy hitter for collectors,” The Courier-News (Bridgewater, New Jersey), June 29, 2000: 91.
“Wagner card sells for $1.265M,” The Daily Times (Salisbury, Maryland), July 19, 2000: 21.
Bill Wagner, “Topps, Upper Deck still in baseball as competitors axed,” Record Searchlight (Redding, California), July 24, 2005: 21.
Erik Schwartz, “Outta here: Bidders get Fleer assets,” Courier-Post (Camden, New Jersey), September 10, 2005: 9.
“’Cool Papa’ was no buffoon, sez lawsuit,” Daily News (New York, New York), November 23, 2007: 8.
Author’s Note: This is the third in a multi-part series that explores the legal backstories that have shaped (and continue to shape) the baseball card industry.
You may recall that Fleer and Donruss entered the baseball card market in 1981 after a Pennsylvania district court found that Topps and the Major League Baseball Players Association (“MLBPA”) had illegally restrained trade in the baseball card market. The court voided Topps’ player contract exclusivity clause and the MLBPA was ordered to enter into at least one additional licensing agreement “to market a pocket-size baseball card product, to be sold alone or in combination with a low-cost premium.” This freewheeling baseball card market was short-lived, however, once the Court of Appeals for the Second Circuit reversed the Pennsylvania district court’s order on August 25, 1981 and held the exclusive rights in Topps’ player contracts were legal and enforceable.
Ultimately victorious, Topps filed separate matters in Delaware (seeking to disgorge Fleer of its 1981 profits) and New York (seeking to recover Fleer’s profits for 1982/1983 claiming that Fleer’s team logo sticker was a “sham product”). Both cases were settled on confidential terms, though with a provision that allowed Fleer to continue selling baseball cards with team logo stickers.
The MLBPA Turns the Screws on Topps
Despite settlement between Topps and Fleer in the Delaware and New York matters, the case continued as to the counterclaim by the MLBPA against Topps, which the court astutely observed had likely been filed “in order to exert some pressure on Topps to abandon or at least modify the breadth of its interpretation of its player contracts.” Specifically, the MLBPA sought declaration that the word “alone” in Topps’ contracts did not include “low-cost non-confectionary items like Fleer’s team logo sticker.”
Marvin Miller, however, had admitted under oath in the prior Pennsylvania matter that Topps’ rights would be infringed by the sale of cards with a “completely valueless item” and that the MLBPA would have denied any proposal for baseball cards to be sold with a “trivial product.” Additionally, the court took issue with the absence of evidence regarding how much it cost to produce the stickers or “the extent, if any, to which the sticker motivates purchases” of Fleer wax packs. Topps argued the only way for Fleer to avoid an infringement claim would be to “make sure that the production cost of the [logo sticker] at least equal[ed] the production cost of the cards in the package.”
(L) 1982 Fleer logo sticker, (C) 1984 Fleer logo sticker front, (R) 1984 Fleer logo sticker back
However, the settlement of the underlying case between Topps and Fleer had altered the nature of the contract issue that the MLBPA wished to litigate. Although the precise terms were confidential, the settlement agreement required Fleer to increase the production cost of the logo sticker compared to the cost of the cards in each pack and specified that the logo sticker needed to be featured prominently on packaging and advertisement for the product.
Because Topps was satisfied that Fleer’s logo stickers no longer infringed on their rights to market cards alone, the court held that the MLBPA was seeking remedy for a package of cards (containing a “sham” sticker) that was no longer being marketed and that the MLBPA’s claim was nonjusticiable—it simply did not present an active controversy over which the court could preside. Accordingly, the matter was dismissed on August 25, 1986.
Turnabout is Fair Play
Separate litigation continued between Topps and MLBPA in New York. There, Topps alleged that the MLBPA had instigated a group player boycott; had attempted to monopolize Major League Baseball players’ publicity rights in violation of the Sherman Act; and had tortiously interfered with Topps contractual relationships with the players.
The compensation Topps offered for player contracts had remained unchanged since 1975—players received $5 upon signing the initial contract and received a $250 advance against his pro rata share of a royalty pool for every season he was a member of a major league club (and Topps used his picture on a card). All-Star pitcher Jim Kern described the deal with Topps rather pithily, “you get $250 from Topps, hell or high water, if your face is on a card.”
Marvin Miller had repeatedly attempted to negotiate better terms, but Topps ignored all demands—mainly because Topps’ individual contracting system left the MLBPA with little bargaining power. In fact, Topps had offered a lower royalty rate for exclusive rights than Fleer and Donruss had for non-exclusive rights prior to the 1982 season.
In an effort to increase their bargaining power, the board recommended that no player enter into or renew an agreement with Topps. Executive board member Buck Martinez acknowledged the MLBPA “simply wanted to negotiate a new contract with Topps.” The matter came to a head in January 1986, when Miller and Don Fehr distributed a memo that declared “the Executive Board has determined that it cannot, and will not recommend that any player enter into a new agreement with Topps, or renew or extend any existing agreement with Topps, pending the outcome of the discussions between the association and Topps.” Accordingly, few players signed renewals with Topps. The MLBPA thereafter presented Topps with a licensing offer of “commercially reasonable terms.”
Topps’ player contracts were set to expire with approximately 100 individual Major League players (a group that included most of the players deemed “superstars”) on December 31, 1986. Topps complained that it would be unable to produce a complete set of cards for 1987 if those contracts were allowed to expire.
In its opinion issued on August 1, 1986, the court found questions of fact regarding whether the MLBPA intended to obtain monopoly power. However, denial of Topps’ request for a preliminary injunction was a monumental win for the MLBPA, “Topps can easily avoid the irreparable harm it claims it will suffer by accepting the offer the MLBPA has made.” In other words, Topps could simply pay for the rights to renew those 100 players with expiring contracts, however unpalatable it was to Topps. Forced into the corner, a deal was struck that allowed Topps to market a full set in 1987 and beyond.
Though card manufacturers like Topps generally kept production numbers private, “one trade magazine estimated the tally at 81 billion trading cards per year in the late ‘80s and early ‘90s, or more than 300 cards for every American annually.”
In Re: Nolan Ryan Rookie Card
In April 1990, a 12-year-old collector walked out of the Ball-Mart card shop in Addison, Illinois with a beautiful 1968 Topps Nolan Ryan card. The owner of the shop, Joe Irmen, had been in the baseball card business for just a few weeks and had marked the card “1200” without a dollar sign, comma, or decimal point ($1200 was essentially top dollar for the card at the time). During a blitz of customers at the card shop, Irmen asked a clerk from his next-door jewelry store to help out. Unfortunately, that clerk had no knowledge about the value of the card and mistakenly sold it for $12.
After being inundated with requests for cheap Ryan rookie cards, Irmen discovered the $1200 card in his case had been sold at a steep discount—the receipt on file clearly showed the $12 purchase price.
The case was literally frontpage news in 1990.
Irmen initiated a manhunt and posted a sign in his store offering a $100 reward for information about the person who had purchased the card. Once the buyer (a minor) was identified, Irmen went to the child’s house, but no one answered the door. Thereafter unable to negotiate its return, Irmen filed a lawsuit in an effort to recover the card. The family, who felt the card was purchased fairly, filed a $60,000 counterclaim for defamation.
The matter was set for trial on March 5, 1991 in front of DuPage County Judge Ann Jorgensen. Before the proceedings began, it was revealed that a trade had been made the night before in which the 1968 Ryan card had been exchanged for a 1965 Joe Namath rookie and 1967 Tom Seaver rookie. The bombshell revelation resulted in a shouting match between the attorneys. Bailiffs had to clear the courtroom.
Once order was restored, the case was continued and eventually settled by way of the parties agreeing to have the card auctioned off for charity. On June 21, 1991 the card was sold for $5000, and the proceeds split between the parties to be donated to charities of their choice.
Cutting Cards: A Cautionary Tale
In what may qualify as the original “cart art,” Dad’s Kid Corporation produced a set of “Tri Cards” in 1992 that were assembled using three identical baseball cards issued by Donruss, Fleer, Score, or Upper Deck. The top two cards were die-cut such that only the body of player remained. Those two pieces were then stacked and glued atop an uncut card to create a neat 3-D effect. Each card was encased in a plastic box and sold individually or in a two-pack, packaged such that each card was visible to potential buyers.
Front and back of Wade Boggs Tri Card, constructed from three 1991 Upper Deck cards.
The owner of Dad’s Kid Corporation, Christopher Kamar, had struck deals with Toys R Us, F.A.O. Schwartz, Spencer Gifts, and other retailers to sell his Tri Cards. Almost immediately, the Tri Cards were so popular that Dad’s Kid had to run three shifts of 100 assemblers per shift just to meet demand. In fact, its initial shipment to Toys R Us was so successful, Dad’s Kid had a reorder on the table worth upwards of $20 million when Upper Deck, Score, Leaf, and the MLBPA filed coordinated lawsuits in New York and California seeking to stop Dad’s Kid from selling its Tri Card products. The respective lawsuits alleged that any modification of existing baseball cards, without prior written permission, violated trademark and copyright law.
For its part, Dad’s Kid had undertaken a thorough legal analysis before it began the manufacturing process and was operating under a good-faith belief it was not infringing on any rights; it was simply using cards purchased legally on the secondary market. Moreover, the company posted an explicit disclaimer on each box alerting consumers it was not claiming any rights with respect to the cards and was otherwise not affiliated with any of the card manufacturers, MLB, or the MLBPA.
In the New York case, the MLBPA moved for an injunction asking the court to stop Dad’s Kid from selling Tri Card products. The district court refused, citing the “first-sale doctrine” in a ruling issued on November 12, 1992:
“The fact that an enormous secondary market exists for baseball cards and baseball card derivative works leads me to conclude on this record that baseball players have little if any continuing publicity rights with respect to the use and reuse of their pictures on cards by subsequent purchasers and sellers of duly licensed baseball cards following a perfectly proper first sale into commerce for which the players get a royalty.” Effectively, the players did not have the right to control what was done with the cards after the initial sale and had no claim for any additional compensation. On the heels of this victory, Dad’s Kid announced its Tri Cards would be back in 1993.
The lawsuits rolled on, however, and in April 1993 the New York case was consolidated with the California matters to continue there. Unfortunately for Dad’s Kid, the California district court did not agree with (and was not bound by) the New York first-sale ruling and instead issued a permanent injunction on August 12, 1994 that prohibited Dad’s Kid from producing any further Tri Cards. The court further ordered that Dad’s Kid reimburse the plaintiff card manufacturers and MLBPA over $1 million collectively in attorneys’ fees and costs.
Dad’s Kid appealed and the case was eventually dismissed on March 8, 1996, pursuant to a confidential settlement.
Johnny Bench Hit by his Own Pitch
Sports cards and memorabilia sales continued to soar in the 1990s and quickly became a fixture on shop-at-home television stations. This format often preyed on those unfamiliar with the actual value of items and otherwise created an environment where even sophisticated collectors might get caught up in the frenzied sales tactics.
Hall of Fame catcher Johnny Bench appeared on the Home Shopping Network on August 5, 1993 to hawk baseballs he had signed. In typical shop-at home fashion, viewers were initially told the autographed balls were worth $129. They claimed the baseballs would sell out at $99.95. Finally, the Bench-signed baseballs were dropped to the low, low price of $49.95.
Unfortunately for the Home Shopping Network and Bench, however, the New York Department of Consumer Affairs had started to monitor the values claimed for sports card and memorabilia. With the help of a trusted price guide, they determined that an autographed Johnny Bench baseball was worth $35, only 70% of its final “sensational” sales price.
The first celebrity endorser to face such charges in New York, Bench was personally cited for misrepresenting the value of his own signature on a ball. Bench was hit with a $5000 fine in December and Home Shopping Network was ordered to pay $30,000.
Poking the Bear
Seeking to “put the fun back in baseball card collecting,” Cardtoons readied a 1993 release of parody baseball cards intended to poke fun at the egos and greed in the game (and the world) with an issue that was equal parts Wacky Packages, Garbage Pail Kids, and traditional trading cards. The set of 130 cards lampooned current players, retired legends, Michael Jordan (the baseball player) and political figures like Bill Clinton.
Clockwise: Raging Tartabull (No. BB-15), The Say What Kid (No. 40), Treasury Bonds (No. 8), Slick Willie (No. S-3).
Cardtoons tapped free agent sportswriter Mike Sowell to create the players’ alter egos and write the card backs. Caricatures by Dayne Dudley and Dave Simpson were deftly rendered so that each individual was recognizable without including team logos that might run afoul of MLB’s rights. In fact, even the team names were changed to cheeky monikers (e.g., Orioles/Bore-Ioles and Cubs/Scrubs). The glossy cards were distributed in foil packs along with chase cards, foil versions, insert sets, puzzles, and redemption cards intended to skewer the baseball card industry, itself. Cardtoons’ initial run called for some 13 million cards to be printed.
Cardtoons first advertised their cards in the May 14, 1993 issue of Sports Collector Digest. This caught the attention of the MLBPA (who had not issued a license to Cardtoons to use the likenesses of the players depicted). The MLBPA sent Cardtoons a letter on June 18 asserting that its product violated the “valuable property rights of MLBPA and the players” and threatened legal action if any cards of active baseball players were sold. A similar letter was sent to the printing company, who immediately halted production.
Just days after receipt of the cease-and-desist letter, Cardtoons filed a lawsuit against MLBPA seeking a declaration that it could sell parody baseball cards without license from the MLBPA pursuant to First Amendment protection. At a subsequent evidentiary hearing, Cardtoons revealed it was sitting on nearly 4000 cases of product ready to ship. The MLBPA claimed it would never have licensed a parody set that poked fun at individual players (and also admitted to a “glut” in the market for baseball cards!).
The district court considered that parodies (such as political cartoons) were generally protected by the First Amendment and “deserving of substantial freedom—both as entertainment and as a form of social and literary criticism.” The issue the court wrangled with, however, was whether “one can sell a parody” and ultimately decided that Cardtoons could not profit from the players’ likenesses and fame. An order was entered that prohibited Cardtoons from selling cards containing the likenesses of active Major League ballplayers (101 of the 130 cards in the set). Damages were denied because none of the cards had actually been sold at the time the decision was rendered on November 23, 1993.
The Cardtoons set eventually saw the light of day, however, because raunchy rap group 2 Live Crew sampled a Roy Orbison song without permission. In a case that went all the way to the U.S. Supreme Court, 2 Live Crew prevailed in a ruling handed down on March 7, 1994 in which it was held that a commercial (i.e., made specifically for sale) parody song could constitute fair use.
Cardtoons sought reconsideration in light of the 2 Live Crew ruling and on October 25, 1994, the district court reversed its prior decision, this time finding it reasonable that Cardtoons would seek compensation for its efforts and recognized that “parodists will seldom get permission from those whose works are parodied. Self-esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee.” The court ultimately ruled that that right of publicity did not “confer a shield to ward off caricature, parody and satire” and that the Cardtoons cards were protected by the First Amendment, regardless of their commercial nature.
Finally clear to distribute their cards, Cardtoons released the set in 1995—the product’s overarching message elegantly punctuated by intervening strike and cancellation of the 1994 World Series. While the original version of cards was set to be “90 percent positive in the way they portrayed players,” Sowell’s opinion soured as the court battle raged. He decided there was “no need to be nice” and satirized the players as he saw fit.
Front and back of Egotisticky Henderson (No. 35).
The appeal filed by MLBPA was denied in 1996, the Tenth Circuit ruling succinctly that “the last thing we need, the last thing the First Amendment will tolerate, is a law that lets public figures keep people from mocking them.” But for the protracted lawsuit, Cardtoons had plans to issue card sets for other sports.
Mickey Mantle v. Upper Deck
On February 1, 1993 Mickey Mantle entered a three-year contract that gave Upper Deck “exclusive worldwide rights to use and reuse. . .Mantle’s name (as well as any nicknames), image, likeness, artists’ portrayal of image or likeness, visual representation, signature (or facsimile thereof), photograph, voice, biography, statistics and endorsements” for baseball cards and associated promotional materials. Upper Deck’s 1993 Mantle issues were relatively modest, including several “All-Time Heroes” multiplayer cards and a “Then and Now” card featuring a young Mantle aside a holographic image an older Mantle wearing an Upper Deck jersey.
In 1994, Upper Deck produced a slew of Mantle cards, including one that was personally signed by both Mantle and Ken Griffey Jr. That year, Topps also issued a Mantle card as part of its Archive set, styled as a 1954 Topps card and clearly indicating on the reverse that it had rights to issue the card per an agreement with Upper Deck. (Mantle was signed with Bowman exclusively in 1954 and 1955 and Topps had not issued Mantle cards those seasons.)
Though labeled as a Topps Heritage issue, this card (No. 259) was actually distributed as an insert card in packs of 1994 Upper Deck All-Time Heroes because Upper Deck held exclusive rights.
Despite Upper Deck wholeheartedly issuing a multitude of Mantle cards in 1994, the company reportedly soured on the deal after Mantle publicly admitted he had undergone alcohol rehabilitation. Mantle filed a lawsuit late in the year claiming that Upper Deck had threatened to rescind the contract unless he agreed to take a pay cut. Upper Deck admitted, “discussions regarding restructuring Mr. Mantle’s contract were the product of his disability and other performance-related concerns.” Upper Deck claimed Mantle had “failed to live up to his commitments as effective spokesperson for the company.”
In February 1995 the parties agreed to participate in arbitration (an alternative dispute resolution process in which three arbitrators—not a jury or judge—decide the case and amount of damages, if any). Despite the ongoing dispute, Upper Deck went ahead and issued a set of metallic Mickey Mantle baseball cards in 1995.
Somewhat ironically, Upper Deck sued several parties in a separate action on February 14, 1995 claiming that those companies could not sell items autographed by Mantle during the term of Upper Deck’s exclusive contract with Mantle. One of those companies, Score Board, prevailed because its contract with Mantle specifically provided it could sell off remaining merchandise after that contract expired on January 31, 1993. At the same time, Score Board had separately sued Upper Deck in New Jersey claiming that Upper Deck was improperly selling autographed Ken Griffey Jr. signatures that Score Board had exclusive right to sell.
On May 28, 1995, Mantle was hospitalized and underwent a liver transplant on June 8. After Mantle passed away on August 13, 1995, collectors scrambled to acquire Mantle items and Upper Deck, alone, sold more than $500,000 worth of Mantle memorabilia on the heels of his death. Mantle’s (estranged) widow Merlyn and personal attorney Roy True continued to prosecute the Upper Deck case on behalf of Mantle’s estate.
On May 22, 1996 the arbitration panel awarded the estate nearly $5 million (approximately $9.7 million in today’s dollars), which included actual damages for having sold Mantle merchandise without a license to do so, punitive damages, and attorney’s fees. Upper Deck sought to have the award vacated, but their efforts failed, and the lawsuit was closed in April 1997.
Orel Hershiser Adds Another Shutout
Orel Hershiser is probably best known for his amazing 1988 pitching performance in which he tossed 59 consecutive shutout innings. A decade later, Hershiser sued Vintage Sports Plaques (“Vintage”) for infringement of licensing and publicity rights after learning that Vintage was selling Hershiser’s baseball cards affixed to wooden plaques and labeled with his name. (Deluxe plaques included a “clock with a sports motif.”) The Hershiser cards used by Vintage were purchased from licensed manufacturers and framed without alteration. Vintage, itself, had no licensing agreements with any parties.
1989 Topps Record Breaker (No. 5) Wouldn’t this make an amazing clock?
Vintage argued that the “first-sale doctrine” was a complete defense to the publicity claims. The first-sale doctrine provides that “once the holder of an intellectual property right consents to the sale of particular copies. . .of his work, he may not thereafter exercise the distribution right with respect to such copies.” The court rightly recognized that its failure to apply the first-sale doctrine in the Hershiser case would “render tortious the resale of sports trading cards and memorabilia” and would have a chilling effect on the secondary market for trading cards. In fact, refusing to apply the first-sale doctrine here would essentially make it impossible for a child to sell a baseball card to a friend.
Ultimately, the court found that Vintage was merely reselling cards that it had lawfully obtained. “This is more appropriately classified as a case of an entrepreneur repackaging or displaying the trading cards in a more attractive way to consumers rather than a case of an opportunist using Plaintiffs’ names and likenesses to sell frames and clocks.” The appellate court affirmed and the plaintiff’s declined to pursue any further appeal to the U.S. Supreme Court. Hershiser was shutout.
An Ocean of Cards
Although the MLBPA had long been involved in baseball card-related disputes and litigation, the owners of the ballclubs had not been quite so active, perhaps because collecting money for the use of their trademarked logos and uniforms, while very lucrative, was not the lifeblood that licensing revenue represented for the MLBPA.
This changed in 1998, however, when Major League Baseball Properties, Inc. (“MLB”) learned that Pacific Trading Cards was in the process of manufacturing and distributing cards that depicted players in their MLB uniforms, despite MLB having refused to grant a license to Pacific for the current set. (MLB had authorized previous Pacific issues).
Pacific was fully licensed by the MLBPA and went forward with manufacture “either believing mistakenly that it would receive a license from MLB or not caring whether it would.” The MLB sued to stop Pacific from distributing their cards. The MLB’s request for a preliminary injunction was denied, inter alia, because the court felt that the inclusion of the logos or trademarks were only incidental to the depiction of the player and did not imply any sponsorship by MLB for the card.
An appeal followed by MLB and Pacific implored the court for permission to ship their cards immediately or the results would be financially ruinous. Ultimately, MLB and Pacific were able to reach a settlement and Pacific continued to issue sets of baseball cards through 2001.
Throughout the 1990s, card companies, like Pacific, continued to churn out nearly innumerable piles of cards. An exclusive license for Topps was on the horizon, but the fighting would continue in nearly every corner of the hobby.
To be continued…
Sources/Notes:
Cases
Fleer Corp. v. Topps Chewing Gum, Inc., 501 F.Supp. 485 (E.D. Pa. 1980). The only trading card product ever to outsell baseball cards was Wacky Packages in 1973-74. The court noted that the slab of gum weighed “4.30 grams” in 1978. Fleer had a net operating loss in 1978 and its net income (loss) was as follows: 1977—$346,621; 1976—$502,257; 1975—$720,274; 1974—($309,261); 1973—$382,354; 1972—$268,926; 1971—$148,494; 1970—($200,016). Roughly two thirds of baseball cards purchased are purchased by “heavy” buyers (i.e., those who purchase more than 200 cards per year.)
Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 658 F.2d 139 (3rd Cir. 1981). The number of players included in each licensing agreement varied. Some contracts, like those with Coca-Cola and Kellogg’s covered all the players, while others included “not less than 72, and not more than 300.”
Fleer Corp. v. Topps Chewing Gum, Inc., cert. denied, 455 U.S. 1019 (1982).
Topps Chewing Gum, Inc. v. Fleer Corp., 547 F.Supp. 102 (D. Del. 1982).
Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F.Supp. 785 (E.D.N.Y. 1983). Tetley Tea manufacturer sued Topps for including “Petley Flea Bags” in its Wacky Packages release. Approximately 200,000 of the sticker was issued between 1975 and 1977 and Topps had produced approximately 400,000 more of the sticker for its 1982 release. Topps agreed to discontinue distribution of the offending sticker once the printed run was fully depleted.
Topps Chewing Gum, Inc. v. Major League Baseball Players Association, 641 F.Supp. 1179 (S.D. N.Y. 1986) Topps paid royalties to the MLBPA computed at 8% of Topps’ first $4 million in net sales and 10% of Topps’ net sales in excess of $4 million.
Topps Chewing Gum, Inc. v. Fleer Corp., 799 F.2d 851 (2nd Cir. 1986). The MLBPA was granted intervention as a defendant in Topps case against Fleer; Topps had not sued the MLBPA directly in this action. The matter was remanded to the district court to be dismissed without prejudice, which would have allowed the MLBPA to have filed a new lawsuit against Topps, if they desired. No such suit was filed.
Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F.Supp. 1031 (N.D. Ga. 1986). The makers of Cabbage Patch Kids sued Topps for copyright and trademark infringement caused by the sale of its Garbage Pail Kids stickers. Between May 1985 and August 1986, Topps had sold more than 800 million stickers. Before issuing the Garbage Pail Kids product, Topps had unsuccessfully tried to obtain a license for Cabbage Patch Kids. Topps eventually agreed to a confidential cash settlement and design changes to the cards. “Cabbage Patch Dolls are Victorious Over Garbage Pail Kids.” The Columbus (Georgia) Ledger, February 4, 1987: 8.
Fleer Corp. v. Topps Chewing Gum, Inc. 539 A.2d 1060 (Del., 1988). “Restitution serves to ‘deprive the defendant of benefits that in equity and good conscience he ought not to keep, even though he may have received those benefits honestly in the first instance, and even though the plaintiff may have suffered no demonstrable losses.’”
Cardtoons v. Major League Baseball Players Ass’n, 838 F. Supp. 1501 (N.D. Okla. 1993). The six companies with MLBPA licenses to sell baseball cards at the time were producing an estimated $1.3 billion in annual sales. Caricature was defined as “the deliberate distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect.”
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The District Court had granted summary judgment for 2 Live Crew, holding that its song “Pretty Woman” was a parody that made fair use of the original Roy Orbison song “Oh, Pretty Woman.” The appellate court reversed because they felt 2 Live Crew had “taken too much” of the original for their own use and that the song constituted a commercial use. The Supreme Court subsequently reversed and remanded holding that 2 Live Crew’s commercial parody might qualify as fair use.
Cardtoons v. Major League Baseball Players Ass’n, 868 F. Supp. 1266 (N.D. Okla. 1994).
Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 39 USPQ2d 1865 (10th Cir. 1996). “Because Cardtoons’ First Amendment right to free expression outweighs MLBPA’s proprietary right of publicity, we affirm.” The court noted that royalties from baseball cards generated over 70 percent of the MLBPA’s licensing revenue.
Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Texas, 1997). Mantle sued The Upper Deck Company and Upper Deck Authenticated, Ltd. These related companies are referred to collectively as “Upper Deck” for the reader’s benefit. Judgment confirmed for Estate of Mickey Mantle against defendants in the principal amount of $2,725,258.00, exemplary damages in the amount of $1,000,000.00, attorney’s fees in amount of $1,241,628.00, prejudgment interest at 10% per year from the date of the award until the date of judgment, and post-judgment interest at 5.81% per year.
Upper Deck Authenticated, Ltd. v. CPG Direct, 971 F.Supp. 1337 (S.D. Cal. 1997). Defendants included Shop at Home, Inc., CPG Direct, B&J Collectibles, William Rodman, Kenneth Goldin, Classic Games, Inc., Catch a Star Collectibles, Inc., The Score Board, Inc., Score Board Retail Corporation, The Score Board Holding Corporation.
The Score Board, Inc. v. Upper Deck Co., 959 F.Supp. 234 (D. N.J. 1997).
Allison v. Vintage Sports Plaques, 136 F.3d 1443 (11th Cir. 1998). Hershiser had otherwise earned $230,000 from licensing and endorsement deals from 1993 through 1996. Stockcar driver Cliff Allison’s widow Elisa was also a plaintiff in the case.
Major League Baseball Properties, Inc. v. Pacific Trading Cards, Inc., 1998 WL 241904 (S.D. N.Y. 1998).
Major League Baseball Properties, Inc. v. Pacific Trading Cards, Inc., No. 98-7700 (2nd Cir. 1998).
Cardtoons v. Major League Baseball Players Ass’n, 182 F.3d 1132 (10th Cir. 1999); Cardtoons v. Major League Baseball Players Ass’n, 208 F.3d 885 (10th Cir. 2000); Cardtoons v. Major League Baseball Players Ass’n, 335 F.3d 1161 (10th Cir. 2003). Cardtoons tried, and failed, to collect monetary damages from the MLBPA.
Articles
Paul Lomartire, “Baseball Cards and the Snaps of Spring,” The Tampa Tribune, April 4, 1982: 133.
John Leptich, “Boy sued over baseball card,” Chicago Tribune, November 10, 1990: 1.
“Nolan Ryan rookie card snafu headed to court,” The Tribune (Scranton, Pennsylvania), March 6, 1991: 12.
John Leptich, “Baseball card returns, trial goes on,” Chicago Tribune, March 8, 1991: 49.
John Leptich, “Charity delivers winning pitch in baseball card suit,” Chicago Tribune, April 23, 1991: 47.
John Leptich, “Ryan card brings $5000 and another flap,” Chicago Tribune, June 22, 1991: 41.
“Upper Deck Sues Rival Card Firm; Claims Trademark Infringement,” North County Times (Oceanside, California), August 2, 1992: 31.
Anne Michaud, “Small Baseball Card Firm Takes Hit from Big Leagues,” Los Angeles Times, October 22, 1992: 265.
“For the Record,” Los Angeles Times, October 23, 1992: 195. Dad’s Kid filed a counterclaim for $955 million.
Jim Bullard, “More than kids’ stuff,” Tampa Bay Times, January 1, 1993: 96.
Owen Canfield, “ML Players Association not amused by ‘Cardtoons,’” Central New Jersey Home News (New Brunswick, New Jersey), July 9, 1993: 24.
“Bench’s ink pitch draws ire,” Herald and Review (Decatur, Illinois), October 8, 1993: 30.
“Mantle files lawsuit against Upper Deck on contract balk,” Logansport (Indiana) Pharos-Tribune, November 4, 1994: 12.
Jay D. Preble, “Leagues fighting unlicensed cards,” Tampa Tribune, November 12, 1994: 24.
Gene Collier, “How do you spell egomaniacal?,” Pittsburgh Post-Gazette February 12, 1995: 25.
John Mabry, “Satire cards aren’t a hit with big-league players, Kansas City Star, April 16, 1995: 44.
Christopher Kamar, telephone interview with author, October 21, 2022.
Michael Sowell, telephone interview with author, November 5, 2022.
Special Thanks
Special thanks to Jason Schwartz for reviewing this article and offering helpful suggestions.
Appendix 1
Tri Cards Checklist (Cards are not identified with a Tri Cards set number or date of issue by Dad’s Kid Corp. Cards are individually numbered to 50,000. Production was halted before 50,000 of any card was manufactured and no records remain regarding the actual number produced of each Tri Card. Additionally, no checklist of Tri Cards manufactured exists, so the following list may be incomplete.)
Author’s Note: This is the second in a multi-part series [Part I] that will explore the legal backstories that have shaped (and continue to shape) the baseball card industry. Once considered mere ephemera used to induce children to buy penny confections (or cigarettes!), the industry has been inundated by costly legal battles waged in the name of baseball card supremacy.
Although Fleer had hoped to wield the Federal Trade Commission as its cudgel, the commission ultimately found that Topps’ business practices did not constitute an unlawful monopoly and the matter was dismissed in Topps’ favor on April 30, 1965. Undaunted, Fleer renewed its efforts in 1966 to sign players at spring training camps and issued its “All Star Match Baseball” set, which featured a 66-piece puzzle of Dodgers ace Don Drysdale on the reverse side of the game cards. After this set was issued (and perhaps a result of disappointing sales) Fleer’s resolve faded, culminating in the sale of its entire player contract portfolio—some 3000 players—to Topps later that year for $395,000 (approximately $3.4 million in today’s dollars).
1967 Topps Bill Skowron (#357), Bill Denehy/Tom Seaver (#581), Bob Gibson (#210)
Having dispatched its closest competitor, Topps was poised for sustained dominance in the baseball card market. Indeed, the 1967 set was its largest to date with a checklist comprising 609 bright, colorful cards. Unfortunately for Topps, its newly bought peace would be fleeting. The next assault, however, would be waged not by rival card manufacturers, but by new adversaries—the Major League Baseball Players Association (MLBPA) and Major League Baseball (MLB).
Frank Scott and the Proto-MLBPA
A “short, feisty, impeccably dressed man,” Frank Scott was road secretary for the New York Yankees from 1947 through 1950 and developed close relationships with Yogi Berra, Whitey Ford, and Mickey Mantle. In exchange for a 10% commission, Scott began to represent those players for off-field income opportunities—namely personal appearances and product endorsements—and eventually developed a client list of over 90 baseball stars including Willie Mays, Jackie Robinson, Hank Aaron, Eddie Mathews, and Robin Roberts. At his peak, Scott was earning $250,000 per year (approximately $2.4 million today) pursuing endorsement deals. One of those deals included landing Mickey Mantle a $1500 payment from Bowman for rights to a photo of Mantle blowing a bubble (although no such card was ever issued).
The Sporting News, September 23, 1953
In May 1959, Scott was named director of the nascent MLBPA—an organization originally created to help ensure the players’ player pension fund was being adequately funded. He continued his player representation business and staffed a provisional MLBPA office at a New York City hotel. Although he had been paid $1000 ($9600 today) a year by Topps for his assistance getting players to sign baseball card contracts, Scott ceased all relationships with Topps after becoming head of the MLBPA.
Considered “too smart to meddle in the players’ salary debates,” Scott avoided contract negotiations between his clients and their respective ballclubs. Similarly, the MLBPA was not yet recognized as a union under Scott’s leadership and did not engage in collective bargaining with MLB on behalf of the players. The direction of the MLBPA, however, changed drastically in late 1965 as a search was undertaken to find a full-time director and establish a permanent office.
The Marvin Miller Experience
Though not their first choice, the stars aligned when the players’ landed Marvin Miller, then chief economist for the United Steelworkers. Under Miller’s leadership, the MLBPA saw unprecedented progress for players’ rights and eventually led to his election to the Baseball Hall of Fame in December 2019.
2015 Topps Heritage (#NF-9)
Miller’s nomination for Executive Director was ratified by a player vote on April 11, 1966. He was given a two-and-a-half-year contract starting July 1, at $50,000 per year (approximately $430,000 today), plus a $20,000 expense budget. In need of quick revenue to fund association operations, Miller prioritized a group licensing program. With Frank Scott’s help, the MLBPA first inked a deal with Coca-Cola to print player photos on the underside of bottlecaps. The team owners demanded that Coca-Cola pay separately to use of their club logos. Coca-Cola refused, however, so the bottlecaps were printed with blank hats.
At the time Miller took the helm, the players were still being paid $125 per year by Topps to use their photographs, the amount unchanged for over a decade. Miller met with Topps’ president Joel Shorin in the fall of 1966 looking to renegotiate. Shorin was dismissive of the ballplayers’ leverage as he quipped, “I don’t see your muscle.” Miller, however, was ready to play hardball with Topps:
“In early 1967 Miller suggested to the players that they stop renewing their individual Topps contracts and boycott Topps photographers. This was the only way, Miller advised, that they could get Topps to deal with them. Although the action was voluntary, Topps was able to take no more than a handful of photos during the 1967 season, and, with the dispute unresolved, none at all in 1968.”
Around this same time, the baseball club owners established Major League Properties, Inc. looking to monetize the use of their logos depicted in the photos taken of the ballplayers. After initially refusing to engage with the owners for these rights, Topps was warned that future player photos should be taken in “street clothes, or in pajamas or bathing trunks.” Accordingly, uncertainty created by the demands made by the club owners and the MLBPA were the main reason hatless, underbrim, and duplicative photos proliferated Topps’ offerings the second half of the 1960s.
The players’ boycott convinced Topps to pursue further talks with the MLBPA in early 1968. Topps’ opening volley was no olive branch, however. At a meeting on April 23, Shorin presented Miller with a legal opinion stating that the MLBPA’s group licensing program violated antitrust laws. The MLBPA responded with an opinion that Topps’ contracts with the players violated antitrust laws. (Ironically, both Topps and the MLBPA would soon have to defend a lawsuit that alleged that they conspiredtogether to violate antitrust laws.)
Fleer (Briefly) Back in the Mix
In a move designed to enhance the MLBPA’s bargaining position with Topps, Miller proposed giving Fleer exclusive rights, beginning in 1973, to sell baseball cards with gum for up to 80% of the MLB player pool—in exchange for $600,000. Alternatively, the MLBPA offered Fleer immediate rights for all players sold with a product other than gum. Fleer rejected both offers, claiming it was only interested in cards sold with gum, and that 1973 was simply too long to wait.
Detente
Despite the hostile start to their renegotiations, Topps and the MLBPA were able to reach an accord on November 19, 1968 that doubled the player’s annual payment to $250. More importantly, Topps agreed to pay royalties on its annual baseball card sales revenue, resulting in $320,000 (approximately $2.5 million today) paid to the MLBPA in the first year of the deal alone. The deal also allowed the MLBPA to grant a license for any products that were at least 5” x 7” and sold for 25 cents, although Topps reserved the right of first refusal as to any such proposal.
The MLBPA issued numerous trading card licenses during the 1968-1974 period to companies like Beatrice Foods, ITT Continental Baking, Kellogg’s, Pro Star, Inc., Madaras, Inc., Pasco, Inc., and Charles Linnett Associates—several of which were granted over Topps’ objection. In 1969 the MLBPA granted Sports Promotions, Inc., a license to market baseball cards “with cheap novelty rings, iron-on patches, and similar novelties so long as the value of the novelty represented half of the total retail value.” Topps complained to the MLBPA that their rights had been infringed when they learned of the agreement. Topps also objected to Kellogg’s selling baseball cards alone through the mail in 1974. Officially licensed by the MLBPA, Kellogg’s sold sets 54 baseball cards for $1.50, plus a box-top from box of cereal (that typically cost 60 cents). The MLBPA did not revoke Kellogg’s license but obtained a waiver from Topps to allow the continued license for cards sold in that fashion. (Topps could not object to the Kellogg’s cards inserted as premiums in Kellogg’s cereal boxes.)
Despite some occasional complaints to the MLBPA, several years of prosperity followed for Topps and by 1974, its sales of baseball cards and gum approached $6 million annually (approximately $34 million today). Pleased with their arrangement, the contract between Topps and the MLBPA was extended through 1981.
A Fleer in the Ointment
In 1974, Fleer’s president Donald Peck approached the MLBPA seeking approval to market 5” x 7” satin patches to be sold for 25 cents each. The proposal appeared to exploit the product size loophole granted by Topps but appears to have been bit of clever subterfuge in hindsight suggested by Fleer’s paltry $25,000 guarantee on projected sales of $1 million. Moreover, Fleer was likely aware Topps and the MLBPA routinely discussed whether proposed licenses infringed upon Topps’ rights.
Topps took the bait and advised the MLBPA that Fleer’s proposal “was probably not worthwhile.” Without explicitly asking that the license be denied, Shorin warned that the large-format satin patches proposed by Fleer would sit on store shelves and likely depress the sales of Topps’ baseball cards, along with the players’ royalties. Not surprisingly, Topps declined its right to claim the license for the satin patch product.
Miller presented both Fleer’s proposal and Topps’ criticism to the players’ executive board for consideration. Fleer’s offer was rejected unanimously because of fears “Fleer’s product would remain unsold on store shelves, prompting store owners to cut back on orders of Topps’ baseball cards.” Additionally, the executive board was skeptical of Fleer’s sales projections and inadequate guarantee. Miller suggested several changes that might secure a license for the product, but Fleer declined. By April 1975, Fleer had dropped its 5” x 7” product proposal all together.
Peck met with Joel Shorin on April 17, 1975 and threatened to file a lawsuit unless Topps granted Fleer the rights to sell “stickers, stamps, and decals depicting active major league players.” Shorin refused, so Fleer approached the MLBPA about joining in a lawsuit against Topps. The MBLPA declined.
The Monopoly Defense, Part Deux
Even though it had apparently abandoned a desire to produce baseball cards of current players by selling off its contract portfolio to Topps in 1966, Fleer kept a toe in the water by selling team logo cloth stickers with its gum from 1967 through 1972. While Curt Flood’s antitrust case captured headlines throughout the early 1970s and pitchers Andy Messersmith and Dave McNally played out their 1975 seasons without contracts in an effort to gain free agent status, Fleer pursued an antitrust case of its own in July 1975, filing a federal lawsuit against Topps and the MLBPA alleging they were co-conspirators in an illegal restraint of trade under the Sherman Act.
1970 Topps Curt Flood (#360) – Flood never played for the Phillies but appears on this card, a perfect example of the “underbrim” shot favored by Topps’ photographers.
Donald Peck claimed that “Topps’ methods had made it impossible for a competitor to bid for rights to the players’ pictures, that the players had been deprived of a chance to maximize their income,” and “the gum and candy industries had been deprived of open competition.” In its complaint, Fleer alleged that it had attempted to obtain the rights needed to produce a set of current major league baseball 5” x 7” cloth stickers as recently as 1974 and was otherwise equipped to reenter the market, but for its lack of “suitable contracts with baseball players.”
Now united, Topps and the MLBPA vowed to vigorously defend the case, which made antitrust accusations eerily similar to those Topps had successfully defended just a decade earlier in the FTC matter. Joel Shorin remained confident that Topps “had complied with all relevant laws.” Likewise, Marvin Miller was satisfied with the Topps’ arrangement and “would not like to see it disrupted.”
In response, Topps filed a motion to dismiss asking the court to find that Fleer was a de facto party in the FTC matter, alleging “Fleer took such an active part in the FTC hearings, and its interests were so aligned with those of the FTC complaint counsel, that it had a “full and fair opportunity . . . to present its evidence and arguments on the claim.” Because the FTC matter had already been resolved in Topps’ favor, they felt it unfair to allow Fleer another bite at the apple.
It seems reasonable to infer that Fleer had no intention of ever issuing a set of 5” x 7” satin stickers, especially when they rebuffed Miller’s attempts to restructure the deal. Most likely, Fleer’s proposal was engineered to be rejected by the MLBPA, both by its puny guarantee and bold expectation Topps would exert its influence to sink the project. By perpetuating this bluff, however, Fleer could allege the requisite intention and capacity to reenter the baseball card market necessary to prove its antitrust case.
The court found that Fleer had undertaken substantial steps to compete in the marketing of current baseball player picture cards and had sufficiently pled that the alleged conspiracy between Topps and the MLBPA prevented them from entering the market. The defendants’ motion to dismiss the case was denied on May 28, 1976; Fleer survived round one.
The Pure Card Set
In late 1974, Topps was alerted that Mike Aronstein and Sports Stars Publishing Company (SSPC) was interested in issuing cards featuring current baseball players. Topps notified the MLBPA, who issued a cease-and-desist letter to Aronstein asserting Topps’ status as the “exclusive licensee for baseball cards sold alone or together with confectionary products” of the MLBPA. Up until Fleer’s request for a license to issue its 5”x7” cloth stickers, the MLBPA had refused but one license request—Aronstein’s—because the SSPC cards conflicted with Topps’ rights to sell cards alone.
1976 SSPC cards: George Brett (#167), Steve Stone (#302), Ron Cey, back (#75)
Undeterred by Topps’ monopoly and after success with Mets and Yankees team sets and a 24-card “puzzle back” set in 1975, SSPC set its sights high for 1976, with plans to issue a massive 630-card “Pure Card Set” inspired by Aronstein’s admiration of 1953 Bowman’s clean design. SSPC partner, Bill Hongach, (former Yankees’ batboy and Renata Galasso’s husband) helped obtain the photographs. A young Keith Olbermann wrote the card backs. The issuance of the Pure Card Set in 1976 (though copyrighted 1975), however, involved a fair bit of daring.
Two of Mike Aronstein’s other partners in SSPC were attorneys who opined the company could legally issue the cards because (1) the current players were public figures and (2) SSPC was simply disseminating editorial information about each player. They believed the SSPC format (despite its dimensions corresponding precisely to those of a Topps baseball card) was not substantively different than a photograph of a player accompanying a magazine article. Regardless, Aronstein said they “waited to be clobbered by Topps” once the set was advertised for sale.
Distribution of the Pure Card Set—printed and ready to ship as of January 21—was stopped in its tracks when Aronstein received notice that Topps had been granted a temporary restraining order. Despite Topps’ later admission it had no issue with TCMA’s minor league and reprint sets (as long as they did not contain any cards of active MLB coaches of managers under contract with Topps), the order also halted distribution of all TCMA card sets and otherwise attempted to put Aronstein’s Collector’s Quarterly magazine out of business. The SSPC operation was small (i.e., no employees) and had gone $40,000 in debt to print the Pure Card Set. Topps, on the other hand, tallied $8 million in revenue (approximately $40 million today) on sales of 250 million baseball cards produced in 1976.
Photos courtesy Andrew Aronstein
Eventually, Aronstein was able to reach a deal that allowed SSPC to distribute the Pure Card Set to anyone who had ordered it on or before February 20, 1976. Aronstein was thrilled—SSPC had sold some three million cards (distributed as complete or team sets), which allowed them to cover the printing costs and claim a tidy profit. The deal also permitted SSPC to produce cards of current players in sizes other than the standard 2½” x 3½” size, which led to SSPC’s creation of fully sanctioned 27-card uncut sheets that the Phillies and Yankees included in their 1978 yearbooks.
Closing out the 1970s
In 1976, Topps and Fleer began to lose market share with their flagship hard bubblegum products (“Bazooka” and “Dubble Bubble, respectively) due to the introduction of “Bubble Yum,” a soft bubblegum product. Despite its new competition, revenue remained healthy for Topps through 1978, with total sales about $67 million (roughly $290 million today), $9.2 million of which (approximately $40 million today) originated from the sales of baseball cards. With revenue of $15.2 million in 1978 (about $66 million today), Fleer surely salivated at the opportunity to issue baseball cards as a way to close its revenue gap.
In 1978, royalty income for the MLBPA approached $1.1 million (approximately $4.7 million today). Topps’ royalty payments accounted for about $847,000 (approximately $3.65 million today) of that total. That Topps payment comprised more than 75 percent of the MLBPA’s total licensing revenue neatly explains why the MLBPA was reluctant to cross Topps.
The Bubble Bursts
Fleer’s antitrust case against Topps and the MLBPA rolled on for the better part of four years in Pennsylvania without much publicity until the defendants were dealt a massive blow on June 30, 1980. After trial on the matter, the district court issued its decision finding that Topps and the MLBPA had acted in concert to exclude Topps’ competitors and were in violation of the Sherman Antitrust Act by having restrained trade in the baseball card market. Damning to be sure.
In order to arrive at its decision that Topps and the MLBPA conspired to monopolize, the court had to find a “specific subjective intent to gain an illegal degree of market control.” As a result, Fleer was entitled to monetary damages and the court was empowered to grant equitable (non-monetary) relief that could levy restrictions on Topps and the MLBPA and/or impose mandatory injunctions that would require defendants to perform specific actions. The equitable relief granted by Judge Clarence Newcomer would change the baseball card landscape forever.
In order to calculate any monetary damages owed to Fleer, the court assumed that, absent the conspiracy to monopolize, “the MLBPA would have granted Fleer a non-confectionary license for some product” at the market price. The court, however, considered the realities of Fleer’s chances for success in the market, “Fleer has never had a great deal of success marketing trading cards of any type (Topps and Donruss are the leaders in the field), and had it obtained an expensive license, its expertise would have been greatly tested. Fleer’s distribution system is not as effective as that of Topps (Topps uses its own sales force; Fleer works through brokers and wholesalers), and Topps could have been expected to have beaten Fleer to the shelves in the spring. Finally, Topps’ product has a great deal of market acceptance among retailers and consumers.” The court admittedly could not find that “Fleer would have been the company to succeed at the endeavor,” but it at least should have had the opportunity to try.
Damage, Inc.
Generally, monetary damages must be provable in order to be recovered. Unfortunately for Fleer, the court found that trying to quantify Fleer’s losses depended on “an unacceptable amount of speculation,” especially because Fleer was “not a particularly robust company at the moment.” Its sales were roughly a fifth of those of Topps and both companies were suffering loss of market share at the hands of soft bubble gum products sold by larger competitors. Moreover, Fleer had never sold a trading card item that achieved $750,000 in sales.
Even without any conspiracy between Topps and the MLBPA, “Fleer would have faced two obstacles between it and its first dollar of profit. First, it would have had to obtain a license from the MLBPA to market a set of cards. Second, it faced the significant market power of a firmly entrenched competitor.” Because of this uncertainty, the court awarded Fleer symbolic damages of $1 (which was trebled to $3 pursuant to statute). The defendants were also ordered to reimburse Fleer its attorneys’ fees—likely hundreds of thousands of dollars incurred to pursue the protracted litigation.
More importantly, the court permanently enjoined Topps from enforcing the exclusivity clause in its player contracts and prohibited Topps from entering into any player contract that gave Topps the exclusive right to sell that player’s photograph. Wow.
The MLBPA was ordered to carefully consider any applications it received for licenses to market baseball cards and was explicitly required to enter into at least one such licensing agreement before January 1, 1981 “to market a pocket-size baseball card product, to be sold alone or in combination with a low-cost premium, in packages priced at 15 to 50 cents.” Fleer was granted right of first refusal as to any such license. The MLBPA was also cleared to grant as many similar baseball card licenses as it chose to.
Fleer and Donruss Enter the Fray
1981 Topps Bill Buckner (#625), 1981 Fleer Mark Fidrych (#462), 1981 Donruss Pete Rose (#131)
Following the court’s decision in June 1980, Fleer scrambled to assemble its 1981 set. At 660 cards, it was by far the largest set the company had ever produced. President Donald Peck was downright giddy, “I don’t know why we succeeded this time. I guess our case was just presented better. . .We’re just having a lot of fun competing in this area.” He predicted Fleer would sell less than Topps, but “more than Topps thinks.”
In 1980 the standard Topps wax pack contained 15 cards and a stick of gum for 25 cents. Topps included 15 cards and a stick of gum for its 1981 set but increased the price to 30 cents per pack. It also added “The Real One” tagline to its boxes and wrappers for the first time.
1981 Topps Wax Box
Fleer tried to outdo Topps by inserting 17 cards and a stick of gum in its 1981 wax packs, sold for 30 cents. It also included two extra packs in each wax box, promising retailers “60 cents extra profit”! Fleer’s 1981 issue was the first to market.
Donruss was an experienced player in (mostly non-sport) trading cards but had to scramble to produce a set once it was granted a license by the MLBPA in September 1980 (reaping the rewards without having to engage in expensive litigation. Although not a party, Donruss personnel was involved in the Fleer case only as witnesses).
Donruss’ president Stewart Lyman reached out to New York sportswriter Bill Madden, who was hired to write the backs for the 1981 set. Mike Aronstein was granted the exclusive right to sell complete hobby sets that year. Donruss sold its wax packs, 18 cards and a stick of gum, through its established distribution channels.
Unfortunately, the 1981 Fleer and Donruss issues were plagued by errors as they rushed to produce their sets, prompting collectors to question whether the errors were included intentionally to stimulate publicity. Fleer corrected some of its errors in its second printing, some more in its third. By June 7, Donruss was in its third printing and had made corrections to most of the errors that dogged its hastily assembled set. Lyman denied Donruss had intentionally included the error cards as a way to increase sales, “I’m embarrassed we made any errors, but I’m proud so few were made considering the timetable we had to put out the set.”
Can you spot the errors? 1981 Fleer Fernando Valenzuela (#140) and Graig Nettles (#87), 1981 Donruss Bobby Bonds (#71)
Interestingly, the district court observed that as of 1980, “no baseball cards are marketed which include statistics on stolen bases or fielding percentage, game winning hits, successful sacrifice attempts, or any number of other statistics which a competitor might choose to offer to attract baseball card purchasers.” Perhaps it is not a coincidence that Topps and Fleer both included stolen bases on their card backs in 1981.
The Appeal
Despite having prevailed, Fleer was not fully satisfied and appealed the district court’s decision. Fleer wanted the court to bar Topps from the baseball card market for at least one season and to require Topps to deal only with the MLBPA rather than through its exclusive individual player agreements. In addition, Fleer sought reconsideration of the award of nominal damages ($3). Topps appealed as well, seeking a reversal of the court’s findings of liability, damages, and injunctive relief.
In a bit of déjà vu, the Third District Appellate Court found that the agreements in place between Topps and the MLBPA “were neither unreasonable restraints of trade. . .nor monopolization of the relevant market.” Topps had won the appeal (again). The court held that just because Topps had managed to obtain licensing agreements with the overwhelming majority of major league players “did not make the aggregation of these contracts an unlawful combination in restraint of trade.” They noted further that Fleer chose to leave the trading card market in 1966 and sold all its existing licensing agreements to Topps.
In addition, Fleer had admitted it could compete against Topps for license agreements in the minor leagues, but it would take several years before it could produce a marketable product. The court found that this argument simply “identified a characteristic of Major League Baseball, rather than an illegal restraint of trade” or “an indictment of Topps’ licensing agreements.” While a Fleer may not have been able to sign major league players already under contract to Topps, it could still compete for player licenses at the minor league level. That this might take six or seven years to bear fruit did not make Topps’ agreements anticompetitive.
An examination of licenses granted by the MLBPA for the sale of trading cards with non-confectionary goods demonstrated that the fear of decreased royalty payments did not stop the MLBPA from licensing products competitive with Topps. As a licensor, “the MLBPA is free to grant licenses to any competitor, or none at all.” Ultimately, appellate court held that Fleer had not proven any intent on the part of Topps and the MLBPA to monopolize the trading card market.
In 1982, the U.S. Supreme Court declined to hear Fleer’s appeal, which made final the Third District’s decision.
Restitution in Delaware
No longer free to market their cards with gum, Fleer and Donruss set about to distribute their cards in 1982 with a non-confectionary premium to exploit the loophole in Topps’ exclusive rights to market cards alone or with gum, candy, or confectionaries. (Fleer did not resurrect the cookie packed with cards in 1963.) Though Topps presumably protested to the MLBPA that Fleer’s team logo stickers and Donruss’s Babe Ruth puzzle pieces were simply “sham” products tantamount to selling cards alone, the MLBPA continued to officially sanction Fleer and Donruss, presumably content with the fruits of the royalty arrangements with each.
In May 1982, shortly after Fleer’s appellate recourse was exhausted, Topps filed a lawsuit in Delaware’s chancery court alleging Fleer was unjustly enriched by “sales of products to which Topps had the exclusive rights to manufacture and sell.” Topps sought to recover the profits Fleer realized on its $4 million in sales (approximately $12.4 million today) of 1981 cards. Fleer president Donald Peck dismissed the charges as meritless and assured that Fleer had no intentions of pulling its 1982 cards from the market. Regardless, in the course of the lawsuit Fleer acknowledged that did owe some amount of restitution but urged that disgorgement of its profits was unreasonable.
While the Delaware case was pending, Topps filed a separate lawsuit against Fleer in the Southern District of New York on March 29, 1983 seeking to recover all of Fleer’s profits for 1982 and 1983—along with $3 million in punitive damages—claiming that Fleer’s team logo sticker was a “sham product.” This lawsuit was settled confidentially in 1985, with Fleer given consent to “continue with the baseball cards and team logo stickers, as before.”
Back in Delaware, Fleer filed a motion asking the chancery court to declare that Topps was not entitled to recover Fleer’s profits “because those profits were earned under the protection of a court order and not as the result of any illegal infringement of Topps’ exclusive contract or licensing rights.” The court denied Fleer’s motion, finding that even though Fleer had legally marketed its 1981 cards in accordance with the Pennsylvania district court’s order—once the decree was reversed by the appellate court, it was as though Fleer had infringed on Topps’ exclusive rights all along.
In 1988, the Delaware Supreme Court affirmed the lower court’s ruling that Fleer had issued cards in 1981 under a wrongfully issued injunction and were responsible to reimburse Topps damages equal to the “net profits received by Fleer arising out of Fleer’s use of Topps’ previously exclusive license agreements.” The matter was returned to the lower court for an accounting. It is unclear how the chancery case ultimately resolved, but it seems likely that the parties reached confidential settlement. (No newspaper articles reporting on the resolution of the case have been located and no information is available remotely from the court.)
1988 Topps Jose Cruz (#278), 1988 Fleer Edgar Martinez (#378), 1988 Gregg Jefferies (#657), 1988 Sportflics Wade Boggs (#50), 1988 Score Bo Jackson (#180)
Otherwise, the MLBPA began preparing in 1988 for a potential work stoppage in 1990 when the collective bargaining agreement with MLB expired. At the time, baseball card royalties paid into the MLBPA garnered each player roughly $18,000 per year in additional income (approximately $43,000 today). The MLBPA used those royalty payments (only $5000 of the $18,000 total was distributed to the players) to fund a war chest, which proved a savvy move when the owners implemented a 32-day lockout that delayed the start of the 1990 season.
Also in 1988, newcomer Score joined Topps, Fleer, Donruss, and Sportflics (who began producing sets in 1986) as a major set manufacturer. Deep in the throes of the junk wax era, Dr. James Beckett expected some five billion cards would be manufactured in 1988. Predictably, more industry players would mean more fighting.
In re Topps Chewing Gum, Inc. 67 F.T.C. 744 (1965).
Flood v. Kuhn, 407 U.S. 258 (1972). In January 1970, Curt Flood filed a lawsuit in the Southern District of New York against the Commissioner of Baseball (Bowie Kuhn), the presidents of the two major leagues (Joe Cronin and Chub Feeney), and the 24 major league clubs after he refused an October 1969 trade from the St. Louis Cardinals to the Philadelphia Phillies. Flood’s complaint alleged violations of federal antitrust laws, civil rights statutes, and the imposition of a form of peonage and involuntary servitude contrary to the Thirteenth Amendment, which had abolished slavery. Flood refused to report to the Phillies in 1970, despite a $100,000 salary offer, and sat out for the season. He appeared in 13 games for the Washington Senators in 1971 but left the club, and organized baseball, for good on April 27 unsatisfied with his performance. On June 19, 1972, the United States Supreme Court issued its opinion in the Flood v. Kuhn matter, holding that, in accordance with Federal Base Ball (1922), the business of baseball—including the reserve clause—was exempt from antitrust laws. No other business (i.e., vaudeville, professional boxing, National Football League) that had sought antitrust exemption in reliance on Federal Baseball had been successful. Accordingly, MLB had (has) the only legally sanctioned monopoly in the United States. Despite candidly admitting that “professional baseball is a business and it is engaged in interstate commerce,” a majority of the Supreme Court ruled against Flood, imploring any change to the law be had “by legislation and not by court decision.”
Fleer Corp. v. Topps Chewing Gum, Inc., 415 F.Supp. 176 (E.D. Pa. 1976). With regard to the FTC matter, “Fleer’s representatives were star witnesses and, in proportion, carried the burden of making the record in this proceeding. They were in constant attendance throughout the hearing. . . In retrospect, much of the struggle for contracts with ballplayers seems to be Fleer’s private struggle with Topps . . .The Hearing Examiner is, however, of the opinion that the delegation of the Commission’s ‘adjudicative fact-finding functions’ does not embrace a policy question going to the public interest.”
Fleer Corp. v. Topps Chewing Gum, Inc., 501 F.Supp. 485 (E.D. Pa. 1980). The only trading card product ever to outsell baseball cards was Wacky Packages in 1973-74. The court noted that the slab of gum weighed “4.30 grams” in 1978. Fleer had a net operating loss in 1978 and its net income (loss) was as follows: 1977—$346,621; 1976—$502,257; 1975—$720,274; 1974—($309,261); 1973—$382,354; 1972—$268,926; 1971—$148,494; 1970—($200,016). Roughly two thirds of baseball cards purchased are purchased by “heavy” buyers (i.e., those who purchase more than 200 cards per year.)
Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139 (3rd Cir. 1981). The number of players included in each licensing agreement varied. Some contracts, like those with Coca-Cola and Kellogg’s covered all the players, while others included “not less than 72, and not more than 300.”
Fleer Corp. v. Topps Chewing Gum, Inc., cert. denied, 455 U.S. 1019 (1982).
Topps Chewing Gum, Inc. v. Fleer Corp., 547 F.Supp. 102 (D. Del. 1982).
Topps Chewing Gum, Inc. v. Fleer Corp., 799 F.2d 851 (2nd Cir. 1986). Fleer’s contract with the MLBPA required that the production cost of the logo sticker had to be “not less than 15 percent of the production cost of the baseball cards in a package.” No evidence was presented to show the production costs for the team logo stickers.
Fleer Corp. v. Topps Chewing Gum, Inc. 539 A.2d 1060 (Del., 1988). “Restitution serves to ‘deprive the defendant of benefits that in equity and good conscience he ought not to keep, even though he may have received those benefits honestly in the first instance, and even though the plaintiff may have suffered no demonstrable losses.’”
Articles
“Mickey’s Bubbles Busted by Ol’ Case,” The Sporting News, September 23, 1953: 17. Mantle was redressed by Yankees manager Casey Stengel for having the audacity to blow a bubble while playing in the outfield.
Dick Young, “Young Ideas,” (New York) Daily News, December 2, 1967: C26.
Richard Wright, “Off-Season Paydirt for Pro Stars,” Detroit Free Press (Detroit, Michigan), December 8, 1968: 59.
“Lawyer Probed on Ballplayers’ Complaints,” Detroit Free Press, November 2, 1970: 30.
Don Lenhausen, “Lawyer Linked to Tigers Is Accused of Misconduct,” Detroit Free Press, December 17, 1970: 16.
“Bad Check Charge Lawyer Sentenced,” Detroit Free Press, July 28, 1971: 17.
“Competitor Sues Topps Over Players’ Pictures,” Wilkes-Barre (Pennsylvania) Times Leader, July 10, 1975: 4.
“Gum Firm to Pop Rival’s Bubble,” Detroit Free Press, July 10, 1975: 25.
“The battle of the baseball cards,” The Record (Hackensack, New Jersey), March 10, 1976: 62.
Mike Aronstein, “The Great Card War,” Collectors Quarterly, Summer 1976.
“The Topps-sponsored Bubble Gum Blowing Championships of 1975,” The Tampa Tribune, September 5, 1976: 118. In 1976, Topps issued a card honoring Milwaukee Brewers infielder Kurt Bevacqua as the “Joe Garagiola/Bazooka Bubble Gum Blowing Champ.” The win netted Bevacqua a first prize of $1000 ($5200 today) for his 18¼” bubble. Phillies catcher Johnny Oates was second with a 14½” bubble that won him $500.
Andy Lindstrom, “Kids still trade their baseball heroes,” News-Pilot (San Pedro, California), September 10, 1976: 11.
Michelle Mitkowski, “Baseball Card Collectors Have Field Day at Show,” Daily Record (Morristown, New Jersey), January 12, 1981: 19.
Paul Marose, “Just like runs and cards, errors part of the game,” The Dispatch (Moline, Illinois), June 7, 1981: 13-14.
“Bubble gum game goes into extra innings,” Baltimore Sun, June 1982: 38.”
“No Hits, Runs, Errors Yet in Chewing Gum Lawsuit,” Scranton Times-Tribune, March 30, 1983: 11.
“Topps gum firm agrees to buy-out,” Philadelphia Inquirer, November 17, 1983: 121.
“Gumming up the works,” Santa Fe New Mexican, April 8, 1985: 11.
“Investment in Baseball Cards is Topps,” Record-Journal (Meriden, Connecticut), April 18, 1988: 14.
Claire Smith, “Players saving for strike in ’90,” Hartford Courant, June 18, 1988: 191, 194.
Frank Litsky, “Frank Scott, 80, Baseball’s First Player Agent,” New York Times, June 30, 1998: Section B, Page 9.
Michael Haupert, “Marvin Miller and the Birth of the MLBPA,” Baseball Research Journal, Spring 2017.
Interview
Mike Aronstein, telephone interview with author, March 10, 2022.
Miscellaneous Notes
The players’ first choice for Executive Director was Milwaukee County Judge Robert Cannon, who turned down the offer because his request to place the MLBPA office in Milwaukee or Chicago was refused and the association would not guarantee him a pension equal to what he would have received as a county judge. Cannon was later instrumental in moving the Seattle Pilots franchise to Milwaukee. The licensing deal with Coca-Cola was $60,000 per year for two years and was instrumental in securing funding needed to keep the MLBPA solvent until dues were first collected in May 1967. Topps agreed to pay an 8% royalty on the first $4 million in sales and 10% thereafter.
The MLBPA group licensing program applies to any company seeking to use the names or likenesses of more than two Major League Baseball players in connection with a commercial product, product line or promotion must sign a licensing agreement with the MLBPA. The license grants the use of the players’ names and/or likenesses only and not the use of any MLB team logos or marks.
Presumably a deal was reached between Topps and Major League Properties considering team logos appear in every set of the 1960s, but the terms of this deal have eluded the author.
The author has been unable to identify any products marketed under the name “Sports Promotions, Inc.” although this appears to be a company linked to Livonia, Michigan attorney Edward P. May, who along with Tigers pitcher Joe Sparma sold Tiger player caricatures in 1968 and had attempted to “merchandise bubblegum cards on a nationwide basis.” May had represented Al Kaline, who complained to the Wayne County prosecutor’s office that May had defrauded him out of $14,000 tied to a health club named for the slugger. Denny McLain complained he lost $100,000 on an ill-fated paint company venture May arranged. The MLBPA complained May had not paid royalties on baseball cards sold and accused him of forging the signature of a printing company executive on a document that guaranteed those royalties. In 1971, May was placed on three years’ probation for writing bad checks and suspended indefinitely from practicing law in Michigan.
Before 1981, Topps had only included stolen base statistics on the backs of its 1971 cards.
Special Thanks
Special thanks to Jason Schwartz for reviewing this article and offering several helpful suggestions.
After pouring over the wildly popular articles detailing the special baseball card sets produced for the Cubs Conventions held in 1996 and 1998, you may have wondered whether the Cubs have ever issued any other cards for distribution to conventiongoers. The 2020 Cubs Convention is the most recent incarnation of the event, held just months before COVID-19 pandemic shutdowns were mandated in Illinois. Much in the same way Pink Floyd’s David Gilmour waited 22 years to issue his solo follow-up to About Face, the Cubs issued cards at the 2020 Convention for the first time since 1998.
While there is always some fun discourse regarding what constitutes a “card,” this three-card set offers an odd size (2 ⅞ x 4 ¾), a full-bleed lenticular front, and a back that contains only the Cubs Twitter handle. The cards are not numbered, and no biographical information or stats are provided. In fact, the players depicted on the obverse are not even identified.
2020 Cubs Convention card back
The cards were given away (along with emoji-like keychains) in the Cubs’ Social Media room, placed individually on a table for anyone to grab for free. The set’s checklist is small: Yu Darvish, Javy Báez, and a combo featuring Jon Lester and Anthony Rizzo.
Javy Báez emoji keychain
Manipulation of the cards offered instant familiarity: each card depicted a memeified moment from the 2019 season that had been shared millions of times via social media (nice job @Cubs social media team!). Minimal research was needed to identify the game where each depiction originated.
Yu Darvish
2020 Cubs Convention Yu Darvish Card
Presented chronologically, the Yu Darvish card was taken from a reaction by Darvish that occurred during the Cubs’ game at Miami on Jackie Robinson Day, April 15, 2019, a 7-2 victory for Darvish and the Cubs. (The first clue to determine the date of this game was quite easy to decipher because the top portions of the “42” on Darvish’s jersey were apparent.)
Although it is not clear precisely when this reaction by Darvish occurred during the game, it was turned into a WTF-style GIF used to represent disbelief:
Javy Báez
2020 Cubs Convention Javy Báez card
The second card is Javy Báez sliding into third base on May 9, 2019, during a game against the Marlins at Wrigley Field—another win for the Cubs, 4-1. In the bottom of the first, Báez drew a (rare) base on balls and went from first to third on a single by Kyle Schwarber, where “El Mago” made this smooth-as-silk slide into the bag.
2020 Cubs Convention Jon Lester/Anthony Rizzo card
The final card is interesting in that it depicts opposite angles of a celebratory hug between Anthony Rizzo and Jon Lester, which occurred after Rizzo’s third-inning grand slam in the Cubs’ rout over the Pirates 17-8 on September 13, 2019. The two-out blast came off Steven Brault and scored David Bote, Albert Almora, and Lester, who was waiting at the plate for Rizzo. (The card also shows Nick Castellanos and Kris Bryant in the background during the celebration.)
These cards are an awful lot of fun, especially because the action depicted on each can be traced to a specific game/event in the 2019 season. Hopefully, the Cubs will continue issuing similar cards once the Cubs Convention is cleared to resume!
Cards in Action
Notes:
“Wildly popular” has been used liberally in the article, above.
Author’s Note: This is the first in a multi-part series that will explore the legal backstories that have shaped (and continue to shape) the baseball card industry. Once considered mere ephemera used to induce children to buy penny confections (or cigarettes!), the industry has been inundated by costly legal battles waged in the name of baseball card supremacy. Punctuated by the recent announcement that Fanatics has agreed to acquire Topps’ trading card business, the players in the industry have endured nearly constant cannibalism, infighting, and subterfuge. Thank goodness for us, right? — John Racanelli
A Very Brief History of the Right of Privacy
Although perhaps difficult to believe, individuals were once without legal recourse if their names or likenesses were used commercially without permission. The “right of privacy” was essentially without basis at common law in the United States before 1902. Emerging privacy rights, however, would eventually become a central battleground as trading card makers fought to secure the pocket change of (mostly) American boys after World War II. The resulting litigation would shape the baseball card industry and provide Topps with nearly unassailable baseball card dominance by the 1960s. The story starts, however, at the turn of the twentieth century with a teenaged girl’s surprising discovery in a Vermont tavern.
As an 18-year-old from Rochester, New York, Abigail Roberson visited an “out-of-the-way tavern” in Vermont while on vacation. There she discovered an advertisement for Franklin Mills flour prominently featuring her photograph. The shocking discovery made Roberson physically ill—Franklin Mills had used the photograph without her knowledge or consent and refused to disclose how they obtained the image.
Franklin Mills advertisement featuring photograph of Abigail Roberson
Roberson was humiliated by use of the photo (although admittedly flattering) and learned that some 25,000 copies of the advertisement had been distributed to stores, warehouses, saloons, and other public places. She sued to prevent the further distribution of the poster and asked for $15,000 in damages (approximately $475,0000 today). The trial court found in Roberson’s favor and the appellate division affirmed.
The case went up to New York’s highest court, however, where Chief Judge Alton Parker wrote for the 4-3 majority that Roberson had failed to state a cause of action because her complaint did not allege defendants acted maliciously or published a defamatory photo. They held that Franklin Mills was lawfully able to use Roberson’s photograph for its advertising without having to ask or compensate her.
Not surprisingly, a wave of public outrage followed Roberson’s loss. In the wake, the New York legislature enacted laws to codify the right of privacy, which allowed an aggrieved party to seek court intervention to enjoin use and sue for monetary damages if a photograph was used intentionally without consent.
A Bat Fight: Hanna Manufacturing Company v. Hillerich & Bradsby Co.
The baseball world would first see a battle over privacy rights in 1935, when Louisville Slugger sued the Hanna Manufacturing Company alleging Hanna was infringing on its trademarks by selling bats bearing the names of players under exclusive contract to Louisville Slugger, such as Babe Ruth and Lou Gehrig.
The bats at issue retailed “for as much as $2.50 each” (approximately $28.00 today) and were bought by customers who were “careful and well-informed.” Louisville Slugger took pride in crafting bats of the size, shape, and balance that each major league player preferred and for a small (undisclosed) consideration, these players gave Louisville Slugger the exclusive right to use the player’s name, autograph, and photograph in connection with the sales of baseball bats for a lengthy term, typically 20 to 25 years. The contract signed by the players did not require them to use Louisville Slugger bats, however. In fact, Lou Gehrig had used Hanna bats for two years despite having signed with Louisville Slugger.
Hanna promotional material
Hanna countered that the bats it sold bearing the names of “Babe Ruth” and “Lou Gehrig” were not sold based on the player’s name having been stamped on the bat, but because the purchasers (often college teams) wanted bats of that player’s particular shape and style. The district court found for Louisville Slugger, “baseball players, like any other individuals, have a property right to their names that has been assigned by certain players to Louisville Slugger, and Louisville Slugger used and advertised such right and has such right exclusively, irrespective of any trademark or unfair competition law.”
The appellate court reversed, however, remarking that there were some “interesting discussions as to a ‘right of privacy’” ongoing but that a “public man waives his right so that the public becomes entitled to his likeness.” The court continued, “fame is not merchandise. It would help neither sportsmanship nor business to uphold the sale of a famous name to the highest bidder as property.” [Wow is this shortsighted when viewed in the modern athlete endorsement landscape!]
The court was further convinced that the “name on the bat” was commonly understood to refer only to the model or style of the bat and implied no endorsement by the player. The court specifically ruled that Hanna could market bats bearing players’ names as long as the descriptive mark included the words “style” or “shape” conspicuously, such that a Hanna bat marked “Babe Ruth style” would be acceptable. Ultimately, those Louisville Slugger contracts operated only to prevent the ballplayers from objecting to Louisville Sluggers’ use of their names and likenesses.
“No matter what may be said about the habits and nature of ball players, they are not naïve.” It would not be long before “right of privacy” claims would invade the baseball card industry.
The Big Cat Takes a Swipe
On August 26, 1941, Johnny Mize went 4-for-8 with a double and home run as his Cardinals split a Tuesday doubleheader against the Dodgers at Ebbets Field in Brooklyn. That same day, Mize’s attorneys filed a right of privacy lawsuit against Gum Products, Inc. in Cambridge, Massachusetts alleging that it had used photos of Mize in its Double Play Gum baseball card set without his permission.
Double Play cards featuring Johnny Mize
In what appears to be the first baseball card-related lawsuit, Mize asked the court for a restraining order and damages commensurate with his appearance on some 140,000 cards issued by Gum Products. On September 5, the court issued a temporary injunction that prevented Gum Products from using Mize’s name or picture further in connection with the sale of gum. Mize’s “right of privacy” victory was short lived, however.
At a subsequent hearing on June 25, 1942, Gum Products admitted it had not directly obtained Mize’s permission, but had done so through the purchase of the picture from an agency. The defense also argued that as “a leading ballplayer of the country,” Mize had no right of privacy in connection to the publication of his name or photograph. On June 28, Judge Francis Good dismissed the case “without comment.” Despite their ultimate victory, Gum Products never produced another set of baseball trading cards.
Leaf: Blown Away
In 1949, Bowman Gum Company and a number of individual players, including Warren Spahn, sued Chicago-based Leaf Brands, Inc. and several east coast gum wholesalers for distributing cards featuring pictures of ballplayers under contract with Bowman. The lawsuit was filed in Philadelphia, where Bowman was based, and a friendly hometown judge issued a temporary restraining order that prohibited Leaf from selling cards with its gum anywhere in the United States (straining the bounds of enforceability).
1949 Leaf cards of individual ballplayers who, along with Bowman sued Leaf
Leaf took the defeat seriously and reached a settlement with Bowman in which Leaf agreed to withdraw from the baseball card business until at least 1951. Leaf tried in vain to work out arrangements with Topps to share printing rights, but Topps was not interested.
Bowman v. Topps: Birth of the Right of Privacy
Topps first dipped its toe in the baseball card market with its Magic Cards release in 1948. The 19-card baseball series was part of a much larger modern Allen & Ginter-like set that also included cards of football players, boxers, movie stars, famous explorers, and dogs. The tiny cards (roughly 1” x 1½”) featured sepia-toned photos that would appear on the card when exposed to sunlight. The baseball checklist consisted of highlight cards from the 1948 Cleveland-Boston World Series and individual cards of Indians player/manager Lou Boudreau and Braves 3B Bob Elliott. The balance of the baseball checklist was comprised of retired greats such as Babe Ruth, Walter Johnson, Rogers Hornsby, and Joe Tinker/Johnny Evers.
In 1951, Topps issued a set of baseball cards featuring current players in direct competition with Bowman, who had produced “Play Ball” sets from 1939-1941 and their own branded sets starting in 1948. To create their set (commonly referred to as “red backs”), Topps licensed rights to the players’ names, photos, and biographical information from a third-party company, Players Enterprises, Inc. This initial set of 52 cards was designed like a deck of cards and was intended to be played as a game. The cards were distributed in a rather nondescript box of “’Doubles’ Baseball Playing Cards” that identified Topps cryptically (and perhaps by design) only by “T.C.G. Brooklyn 32, N.Y.” on the bottom of the box and wrappers. When Players Enterprises merged with Russell Publishing Company in April 1951, Topps was given an additional stable of players under contract that allowed them to distribute a second series of 52 cards (“blue backs”) sold in a redesigned box as “Baseball Trading Card Candy.”
1951 Topps box and cards
Unhappy with the competition, Bowman sued Topps following their release of the red/blue back cards claiming trademark infringement, unfair competition, and impairment of contract rights. They sought to prevent Topps from selling any product having the appearance of gum with the word “baseball” connected to it.
Topps argued that they had lawfully obtained rights from Players Enterprises to use the names, pictures, and biographical data shown on the cards; denied there was any confusion with Bowman’s products; and claimed that the contracts Topps had with the players constituted a waiver of the player’s right to privacy—but conveyed no rights on Bowman to sue Topps. Topps also argued that it had not infringed on Bowman’s contracts with players because it had inserted a caramel candy—not gum—with its cards.
The evidence established that Bowman had contracted with 340 baseball players through Art Flynn Associates for the right to use the name, signature, photograph, and descriptive biological sketch of each. In exchange, Bowman paid $100 and provided a wristwatch to each player for 1951. (The 1951 contract included the word “confections” for the first time, which seemingly presaged knowledge Topps was intending to issue a baseball card set with candy.) The players were also eligible to complete for the Jack Singer Annual Good Sportsmanship awards sponsored by Bowman.
Topps proved it had contracts with 248 active major league players through the rights acquired by Players Enterprises and Russell. These contracts gave Topps the right to use players’ names, pictures, and biographical data in connection with the sale of candy in 1951 and candy andchewing gum for 1952.
Following a bench trial, Judge Clarence Galston ruled in Topps’ favor and dismissed the case. He found it significant that there was no player biographical data on the reverse side of the 1951 Topps cards; the packaging between Bowman and Topps was different; and there was no record of any confusion between purchasers of the two products.
More importantly, the court (in reliance on § 51 of New York’s Civil Rights Law enacted in the wake of Roberson) held that the contracts Bowman made with the players conveyed no rights on Bowman to sue a third-party, such as Topps. Accordingly, only the individual ballplayer would have a cause of action for an injury to his person. No “right of privacy” was applicable to a business.
Bowman v. Topps: The Appeal and Establishment of the “Right of Publicity”
Bowman took the matter up on appeal to the Second Circuit claiming their contracts were exclusive for use in connection with the sale of gum and that Topps deliberately induced the ballplayers to sign contracts giving Topps the same rights. Topps continued to argue that even if Bowman proved its case, there was no actionable wrong because any contract between Bowman and a ballplayer did not convey any right on Bowman to enforce those rights as to third parties.
Just prior to the start of the 1953 season, the appellate court formally established the “right of publicity” by way of recognizing an enforceable property right in each player’s name and likeness. This was huge. Accordingly, the ballplayers could grant exclusive rights to their pictures that could be enforced by third parties, such as Bowman. “For it is common knowledge that many prominent persons (especially actors and ballplayers), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.” That the appellate court recognized the right of publicity was an unprecedented hallmark for ballplayers’ ability to control (and cash in) on their names and likenesses.
The case was sent back to Judge Galston to determine if Topps had knowingly used photographs of players under contract with Bowman. This was a complicated case-by-case task in that up to six separate contracts were now at issue for players who appeared in any of the 1951, 1952 and 1953 sets issued by Bowman and Topps.
Billy Pierce was 1 of just 24 players to appear in each set issued by Bowman and Topps 1951-1953
By May 1953, both Topps and Bowman had continued to issue sets of fluctuating sizes as their competition to ink players to contracts intensified. In fact, Topps pulled six cards from its 1953 set due to the ongoing litigation. The court also required Topps to remove the cards of players it was enjoined from using from stacks of cards printed but not yet wrapped, which allowed Topps to distribute any offending cards that had already been packaged. (Unfortunately, identification of these particular cards is not immediately discernable from the published decision.)
Bowman v. Topps: The Aftermath
The litigation continued, however, and on May 10, 1955 Judge Galston remanded the case to the New York state courts. This litigation was expensive for Bowman, which spent in excess of $110,000 in legal fees ($1.12 million today); it cost Topps only slightly less. Bowman had been losing money each year since 1952, culminating with a net loss in 1954 of $224,000 (approximately $2.3 million today).
In April 1955, Bowman was merged into cardboard box manufacturer Connelly Container Corporation. Connelly’s stewardship of the Bowman gum and trading card brand was fleeting, however, as it looked to shed the gum/baseball card line, which had averaged between 15% to 30% of total sales. On January 20, 1956, Topps settled the litigation with Connelly by acquiring Bowman’s gum-producing facilities, baseball player picture rights, and an agreement on the part of Connelly not to manufacture gum or picture card products for five years in exchange for $200,000 (approximately $2 million today). [Connelly was apparently much more interested in Bowman’s other business pursuits at the time of the merger, including an all-nylon squeeze bottle in development.]
All the while, Leaf wanted to get back into the baseball card business. After the Bowman litigation settled, Leaf again approached Topps with a proposal to share player rights. With main competitor Bowman eliminated, Topps had no interest in making any arrangement with Leaf. In fact, Topps sent a letter to the player representative of each ballclub on August 14, 1956, indicating it was not going to be sharing its baseball card picture rights with any other companies.
By 1959, Topps was the largest manufacturer of bubblegum in the United States with total sales of $14 million annually (approximately $133 million today). Leaf would eventually get back into the baseball card business in 1960 when it produced a black and white 144-card set that was sold with marbles.
Fleer Stirs the Pot
At the end of 1958, the Frank H. Fleer Corporation launched an offensive against Topps for control of the baseball card market by offering ballplayers contracts that would become effective upon the expiration any existing contracts with Topps. This started with a mail solicitation in December and followed up with visits at training camps in 1959 by ten of its sales and marketing personnel. Fleer was even able to enlist representatives who were active players on teams such as Charlie Lau and Chuck Cottier.
The Fleer contracts paid players $5 as initial consideration and $125 upon reaching the major leagues. Further, Fleer offered a monetary gift or reward for players who provided Fleer with copies of their Topps contracts. After learning of this practice, Topps stopped sending copies of its contracts to the players (but would provide information regarding the terms of the contract upon request). Topps was flooded with requests once they started offering $75 for the players to sign extensions.
Fleer successfully lured Ted Williams and produced an 80-card set of the mercurial slugger in 1959. The Williams set accounted for $250,000 in sales (approximately $2.4 million today), which was just a fraction of the $3.8 million (approximately $36 million today) worth of Topps baseball cards sold in 1959.
During the 1960 and 1961 seasons, Fleer issued sets featuring “Baseball Greats,” each of which featured Ted Williams and a cast of retired Hall of Famers and stars. Sales of these sets again paled in comparison to Topps’ baseball offerings. Leaf also issued a small set of current player cards in 1960, sold along with marbles. The 1960 Leaf contract paid the players $50 and provided for rights when distributed in combination with “marbles or other non-edible novelties such as charms made of plastic or metal.”
Fleer cards from 1959 Ted Williams set and 1961 Baseball Greats set
The Federal Trade Commission filed a complaint against Topps on January 30, 1962—with Fleer’s enthusiastic support—alleging that Topps violated § 5 of the Federal Trade Commission Act, which made illegal “unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.” This section also outlawed business practices that were “unscrupulous, oppressive, exploitative, or otherwise indefensible.” The FTC alleged further that Topps created a monopoly in the manufacture and distribution of baseball picture cards “contrary to public policy” and “to the detriment of free and open competition.” The Hearing Examiner made sure to emphasize that “[m]onopoly is condemned without qualification,” somewhat ironic considering that Major League Baseball enjoys the protections of a legally sanctioned monopoly.
At the heart of the complaint was the allegation Topps had completely foreclosed Fleer from the baseball card market by entering exclusive contracts with almost all major league baseball players and practically all minor league players with major league potential. It was further alleged that Topps had the power to impose tie-in requirements and imposed retail price control on vendors because it “wanted to know about anybody who was not selling the cards at six for a nickel.” On the heels of the FTC filing, Fleer bombarded college coaches with correspondence attacking Topps’ contracts and accusing Topps of monopolistic practices that were under investigation by the FTC.
Page 1 of the 98-page FTC decision
Taking a page from their prior battle with Bowman, Topps began drafting their contracts to give themselves broader rights and further restrict the players from contracting with others. In 1957, the Topps contract gave exclusive rights to cards associated with gum and candy; in 1958, Topps added “confections” to the list; in 1959, the Topps’ contract extended to cards sold without gum in bulk vending boxes (despite the fact that vending boxes were an exceedingly small part of its total sales); and in 1960, the Topps contract included an agreement by the player not to enter into any other contracts while under contract with Topps. By May 1961, Fleer had contracted with only five major league ballplayers who had not contracted with Topps.
At the time the FTC got involved, Topps had exclusive rights with 95% of major league baseball players and contracts with more than 6500 ballplayers in both the major leagues in minor leagues. Topps first approached players in the minor leagues with a payment of $5 to sign a contract that would pay the player $125 per year for five years if he were promoted to Major League Baseball. Those players who reached the big leagues were paid regardless of whether Topps issued a card of the individual. (Topps would not have to pay if it decided not to market a complete series of cards, except they had to pay the Yankees either way.) Topps’ network included “agents” such as scouts, managers and players who were compensated as much as $100 a year, plus five dollars for each ballplayer signed, or other “gifts, tips or small payments” upon delivery of signed contracts.
Fleer claimed their representatives were physically excluded or intimidated from soliciting players at the Los Angeles Dodgers’ and Detroit Tigers’ training camps “by goon or similar methods.” In the face of Topps’ established network, Fleer had signed only 20 major league players by 1962 and 27 by 1963. Undeterred, Fleer issued a 66-card set (plus an unnumbered checklist) of active major league players in 1963, dwarfed by the 576-card set issued by Topps that year.
The FTC hearing examiner also considered evidence that Topps actively sought to impose market restrictions on other food and beverage manufacturers who used baseball picture cards as promotional devices. General Foods included baseball cards on packages of Post Cereal from 1961 to 1963 and Jell-O from 1962 to 1963. Topps took issue with the Post Cereal promotion that offered a sheet of ten cards (not attached to a cereal box) for two box tops and ten cents, alleging this was an infringement on their rights to sell cards individually. Topps subsequently entered into agreement that Post would pay a license and royalty fees in connection with its distribution of cards alone under the offer. Topps also objected to the set issued in 1958 by Hires Root Beer. Ultimately, Hires made a deal that allowed them to use photos of the players without having to pay Topps, but never issued another set.
The Topps “Monopoly”
Generally speaking, a monopoly is the control of “an economically meaningful market.” In the FTC matter, all that needed to be established was that baseball cards were economically meaningful, and that Topps controlled the market. There was no need to establish that Topps intended to monopolize; nor was it necessary to show Topps exercised its monopoly power.
Hearing Examiner Herman Tocker issued his initial decision on August 7, 1964, after a full evidentiary hearing. He found that Topps had “monopolized the sale of current baseball card picture cards both as separate articles of commerce and as a promotional device for the sale of confectionery products,” in violation of § 5 of the Federal Trade Commission act—even though Topps’ exclusive contracts and other practices were not unfair when viewed separately. Although it had not actually done so, Topps could have controlled the baseball trading card market and “had the power to increase or decrease at will the price when sold alone or when in packages of gum and cards.” Tocker found further that Topps was in violation of § 2 of the Sherman Antitrust Act—a misdemeanor punishable by a fine up to $50,000 or imprisonment.
Topps was ordered to cease and desist from entering or extending exclusive contacts with ballplayers, coaches, and managers for terms in excess of two years and enforcing any contracts in effect after October 31, 1966, along with an order to provide copies of the contracts to the ballplayers. Tocker also opined “[o]bviously, a single picture card, in and of itself, has little value” and “last year’s cards without current statistical content are about as valuable as yesterday’s newspaper,” observations that have not aged well.
The FTC Appeal
Both sides appealed the Hearing Examiner’s decision and order. FTC Commissioner Philip Elman thoroughly reviewed the evidence on record and reversed, holding Topps did not have a monopoly in the production of baseball cards because they lacked economic significance and alone were not “meaningful in terms of trade realities.”
Elman specifically decided that Topps’ control over baseball picture cards used to promote confectioneries was not detrimental to fair competition and that baseball cards were not so unique and indispensable a promotional technique that other bubblegum manufacturers could not compete on fair and equal terms with Topps. Elman cited several examples of successful promotional trading card series such as football players, retired baseball players, and non-sport sets featuring the Beatles and “Spook Theatre.” Moreover, but for the fact that Topps was the largest seller of bubblegum, there was no proof of any correlation between its superior market share and the sale of baseball picture cards.
Ultimately, Topps’ business model—tirelessly signing as many minor-league players as possible with hopes they would become big leaguers—was not an unfair or monopolistic practice. Because no monopoly was proven, the complaint was dismissed on appeal.
Fleer in the late 1960s
Despite its failure to break Topps’ hold over “current baseball picture cards,” Fleer remained the second largest manufacturer of bubblegum in the United States. Before the 1966 season started, Fleer announced it would be issuing a 66-card set dedicated to Dodgers pitcher Don Drysdale and had a representative, Bob Quinn, continuing to visit Florida training camps looking to sign players to contracts.
The “Drysdale set” Fleer issued in 1966, however, was actually the “All Star Match Baseball” game, with each of the game cards including a black and white puzzle piece of Drysdale on the reverse, such that all 66 cards were necessary to complete the puzzle.
1966 Fleer All Star Match card F35 (front/back) and wrapper
Fleer had also tried to get the jump on Topps by sending contracts and $25 checks to all players chosen in the newly implemented draft, which upset some college coaches who feared their players could jeopardize their amateur status by cashing those checks.
Despite Fleer’s continued efforts to erode Topps’ market stranglehold, Fleer ultimately acquiesced and subsequently sold all of its baseball contracts to Topps in 1966 for $385,000 (approximately $3.4 million today). This would not be the last we would hear from Fleer at the courthouse, however.
Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 541, 64 N. E. 442 (N.Y. 1902). This right of privacy is generally attributed to this article in the 1890 Harvard Law Journal by Samuel Warren and Louis Brandeis.
Federal Base Ball Club of Baltimore v. National League of Professional Base Ball Clubs, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, 26 A.L.R. 357 (1922). Major League Baseball has a legal monopoly, “[t]he business is giving exhibitions of baseball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business.”
Hanna Mfg. Co. v. Hillerich & Bradsby Co., 101 A.L.R. 484, 78 F.2d 763 (5th Cir. 1935). Defendant Hillerich & Bradsby Co. will be referred to as “Louisville Slugger,” its more widely used tradename today.
Bowman Gum, Inc. v. Topps Chewing Gum, Inc. 103 F. Supp. 944 (E.D.N.Y. 1952). Topps also issued 9-card set of team photos in 1951 (Boston Red Sox, Brooklyn Dodgers, Chicago White Sox, Cincinnati Reds, New York Giants, Philadelphia Athletics, Philadelphia Phillies, St. Louis Cardinals, Washington Senators) and Major League All-Stars/Connie Mack All-Stars. These sets do not appear to have been subject of the litigation between Topps and Bowman.
Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2nd Cir. 1953). In April 1952, Bowman Gum shareholders approved the change of the company name to Haelan Laboratories. Philadelphia Inquirer, April 9, 1952: 4. Accordingly, the ensuing litigation lists Haelan—and not Bowman—as a party.
Haelan Laboratories v. Topps Chewing Gum, 131 F. Supp. 262 (E.D.N.Y. 1955).
In re Topps Chewing Gum, Inc. 67 F.T.C. 744 (1965). Baseball card sales in 1960: Topps $3,638,000 (approx. $34 million today), Fleer $300,000 (approx. $2.8 million today), and Leaf $100,000 (approx. $934,000 today); in 1961: Topps $3,475,000 (approx. $32 million today) and Fleer $355,506 (approx. $3.3 million today). The second series of Fleer’s 1961 Baseball Greats accounted for an additional $85,000 in sales (approx. $778,000 today) for 1962. Though distributed under the company name “Sports Novelties Inc.,” the 1960 Leaf issue is referred to in the hobby as “Leaf” and is referred to similarly herein. The FTC hearing examiner described the Beatles as “a group of singing troubadours imported from England”. Additionally, for football cards, the contract was made with the league and not the individual players. The players received no direct compensation—all money was channeled to league pension funds.
Articles
“The Week in a Busy World,” Atlanta Constitution, May 5, 1901: 42.
“Chewing Gum Stuck with Suit by Mize,” Daily News (New York), August 27, 1941: 284.
“Johnny Mize Asks Damages from Cambridge Gum Firm,” Boston Globe, June 25, 1942: 11. Mize appeared on two cards in the set: Nos. 39/40 with Enos Slaughter and Nos. 99/100 with Dan Litwhiler. It is unclear how many of each comprised the total.
“Mize of Cardinals Wins Court Test on Use of Name,” Boston Globe, September 5, 1941: 23.
“Mize Suit Against Gum Firm Dismissed,” Des Moines Register, June 28, 1942: 16.
“Spahn, Five Others Take Action in Gum Distribution Controversy, Boston Globe, May 4, 1949: 23. Although this case attracted little press, that Warren Spahn was involved is not surprising based on the battle he would have in the future regarding the publication of the “Warren Spahn Story,” which he contended painted him in a false (but positive) light and was published without his consent.
“A’s Stars Get Writ to Bar Use of Pictures on Gum,” Philadelphia Inquirer, May 7, 1949: 16.
“Haelan Merged into Connelly,” Philadelphia Inquirer, April 28, 1955: 30.
Bob Rathgeber, “Young Bob Quinn: Bubble Gum Exec,” Bradenton (Florida) Herald, March 17, 1966: 14.
Wayne Shufelt, “’Gummed’ Up,” Tampa Times, April 2, 1966: 10.
Paul Bedard, “Bubble May Burst in Baseball Card Suit,” Washington Post, June 20, 1979.
Rich Mueller, “1953 Topps Missing Numbers Revealed,” Sports Collectors Daily, July 29, 2014, https://www.sportscollectorsdaily.com/1953-topps-missing-numbers-revealed/, last accessed December 3, 2021. Numbers 253, 261, 267, 268, 271 and 275 were reportedly supposed to be cards for Joe Tipton, Ken Wood, Hoot Evers, Harry Brecheen, Billy Cox, and Pete Castiglione.
Special Thanks
Special thanks to Jason Schwartz for reviewing this article and offering many helpful suggestions.
Baseball formally required all batters to wear helmets in 1970. Red Sox catcher Bob Montgomery was the last player to bat in a Major League contest without a helmet in 1979. Then in 1983, it became mandatory for all professional players to use a helmet with at least one earflap, although anyone with Major League service time in 1982 or earlier could opt for a flapless helmet like Ozzie Smith, Dave Winfield, Tim Raines, and several others. Raines would be the last player to use a flapless helmet.
1980 Topps #618 depicts helmetless Montgomery
On April 7, 1979 Orioles outfielder Gary Roenicke was hit in the face by a pitch, causing a laceration that required 25 stitches to close. Roenicke returned to the lineup on April 15 at Milwaukee and went 3-3 using a helmet with a modified football facemask attached. Expos outfielder Ellis Valentine had his cheekbone fractured when he was hit by a pitch on May 30, 1980 at St. Louis. Valentine also returned to the lineup donning a similarly designed batting helmet equipped with a sawn-off football facemask. Folks who opened packs of Topps baseball cards in 1981 could find a pair of cards depicting each of these unique batting helmets.
1981 Topps Valentine #445, Roenicke #37
Although no such picture appeared on any cards issued during his playing career, it is generally accepted that the first player to experiment with protective face gear was Dave Parker. Parker sustained facial fractures in a collision at home plate with Mets catcher John Stearns on June 30, 1978. Upon his return to the lineup July 16, Parker experimented with a (downright terrifying) hockey goalie mask and other football facemask designs. Despite his injury, Parker would win the batting title (.334) and be named National League MVP in 1978.
Photo credit: Associate Press, 1978
Most recently, Giancarlo Stanton made news when he returned to the Marlins in 2015 using a helmet fitted with a custom facemask that cleverly incorporated a “G” into the protective design. Stanton had been hit in the face by the Brewers’ Mike Fiers on September 11, 2014 resulting in fractures that ended his season. No longer newsworthy, facial protection is now commonplace with an ever-increasing number of MLB players opting for jaw guards incorporated into their batting helmets.
On April 4, 1998 Twins outfielder Otis Nixon coaxed a first-inning walk but was soon forced out at second. During the play at the bag, Royals shortstop Félix Martínez kicked Nixon in the face. Nixon stayed in the game but later learned that he had sustained a fractured jaw. When Nixon returned to the lineup on April 9, he utilized a batting helmet fitted with a full football facemask to protect his jaw and with hopes he would not need to undergo a surgical repair. This unfortunate injury, however, offered Nixon the opportunity to don the widest variety of protective headgear ever depicted on baseball cards by a single player.
Otis Nixon was not eligible to use a flapless helmet because he first appeared in the Major Leagues in 1983; however, here he is while with Cleveland:
1987 Fleer #255
Nixon also used a single-flap helmet with the Expos:
1990 Donruss #456
As a switch-hitter, Nixon subsequently joined the double-flap helmet trend:
1992 Leaf #255
And with his appearance for Minnesota following the broken jaw incident, here is Nixon donning the helmet with protective face gear:
1999 Fleer Ultra #44
Unlike facial bones, Nixon’s sartorial record appears unbreakable.
Sources:
Retrosheet.org
Baseball-Reference.com
Bill Nowlin, “Bob Montgomery,” SABR Bio Project
Paul Lukas, “Giancarlo Stanton’s Mask Not a First,” http://www.ESPN.com, March 4, 2015, accessed April 5, 2021.
“Interference Rule Amended,” Cincinnati Enquirer, December 2, 1970.
“Parker returns to lineup and Pirates win pair,” The Morning Call (Allentown, Pennsylvania), July 17, 1978.
“Quick Kick,” Kansas City Star, April 5, 1998.
Mike Klingaman, “Catching Up With … former Oriole Gary Roenicke,” Baltimore Sun, July 7, 2009.
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SABR's Baseball Cards Research Committee 