In what came as wonderful and welcome news to card collectors of a certain vintage, filmmaker Marq Evans announced Monday his plans for a full-length feature film on legendary baseball artist Dick Perez, along with a Kickstarter campaign to fund the effort.
Since that time, Marq and Dick have appeared on several livestreams and podcasts, offering collectors some fun behind-the-scenes stories about the Donruss Diamond Kings, Dick’s other artistic ventures, and of course the film itself. Here is a nice sampling.
Marq has also released several short clips from “The Diamond King” as part of his promotional efforts of the film and its Kickstarter campaign. All are worth a watch or listen. For example, here is a clip of Dick sharing his memories as a young collector in the 1950s.
Celebrating the upcoming #DickPerez film with this exclusive 1953 Topps-infused clip provided to us by filmmaker @marq_evans. Article/interview coming soon to SABR Baseball Cards.
Marq was kind enough to provide SABR Baseball Cards with some previously unseen images from the 22-card baseball card set accompanying the film. The majority of the set features Hall of Famers personally selected as “Diamond Immortals” by Dick, but there are also five players not yet enshrined in Cooperstown. Their cards bear the “Diamond Destiny” moniker.
UPDATE: The set has now been upped to 25 cards!
Dick has also designed backs for the cards, as seen in these mockups.
A total of 499 sets will be produced, individually serial numbered and available only through the film’s Kickstarter page. Here is the complete checklist.
Additionally, Marq and Dick were both generous with their time in providing me the opportunity to interview them about “The Diamond King,” the new baseball card set, and whatever else popped into my head.
SABR Baseball Cards: Let’s begin with your earliest memories as a card collector. We’ll start with Dick.
Dick Perez: Baseball cards were another grand feature of Spring: warmer weather, schooldays coming to an end, the birth of another baseball season, and the reappearance of baseball cards. I was hooked on baseball and the imagery that brought my heroes to life.
Marq Evans: Baseball was my life as a kid, and from age 7 to about 13 I was all about collecting cards. Every dollar I earned from chores, every birthday or Christmas present, it went towards cards. When Ken Griffey Jr. came on the scene in 1989 he instantly became my favorite player and the main focus of my collection. I collected hundreds of his cards and pretty much every weekend was spent at the local card shop to see what the new stock was.
SABR Baseball Cards: Dick, you grew up in an era where baseball cards and art were inseparable. What impression did the artwork of the early 1950s baseball cards make on you?
Dick Perez: I became interested in baseball cards in 1952. Although at the time I thought they were photographic, they had a special look. The 1953 issue of the cards was even better. They looked more artistic. I still believed they were photographic, but in 1954 the imaging of baseball cards changed. It was later in life that I learned that the ’52 and ’53 cards were produced by artists. It seems that the goal was to make those hand painted cards look like photos. That is something I strive not to do when I create my baseball images. I want the viewer to know for sure that a hand was responsible for the work.
SABR Baseball Cards: Visually, did you have any favorites from the 1953 set?
Dick Perez: My favorites from that ’53 set were Jackie Robinson, Luke Easter, Mickey Mantle, Satchel Paige, Al Schoendienst, Joe Collins, Monte Irvin, Vinegar Bend Mizell and Ted Wilks in that order.
Best of 1953 Topps in order!
SABR Baseball Cards: Exceptional choices from top to bottom! How about you, Marq? I know you started collecting a little bit later than Dick. Was there a set in particular you liked best?
Marq Evans: I just loved cards and don’t remember having a favorite set as a kid. The hunt for Griffey brought me to just about every set there was. I do recall having a distinct emotional connection to the Donruss Diamond King cards and they became a set I looked forward to every year. It’s funny though, I don’t think back then I ever thought about the artist that was painting these cards. I just thought they were cool. It wasn’t until decades later that became curious about the artist behind these great images.
SABR Baseball Cards: I suppose that’s a great opportunity for me to ask. How did the idea for this film come about?
Marq Evans: When I read about Dick’s journey, coming to New York at age 6 and learning English and about America through the game of baseball, and his inspiring life story, I thought there was the potential to make a film about baseball through his life and work.
SABR Baseball Cards: And how did that go?
Marq Evans: I sent Dick a blind email just introducing myself and seeing if he was interested in discussing the concept. To my delight he said he’d be happy to talk. We really hit it off right away and he has been a great participant and collaborator in this whole process. He’s an insanely talented artist, of course, but an even better person.
SABR Baseball Cards: Dick, you’ve created your first brand new baseball set in way too long as part of the fundraising for the film. The inclusion of both Orator O’Rourke and J-Rod tells me you were fairly intentional in your player checklist. What was your approach to selecting 22 players from all of baseball history?
Dick Perez: Many of the players chosen for the set are players I knew personally, painted often, played tennis with, or worked together with on some project. There is an even longer list, which still could appear later on. It is possible we may make the card set grow some.
SABR Baseball Cards: Marq, are there other things collectors should know about these cards?
Marq Evans: I love how the set spans the whole history of baseball from the origins until today. I’ll just add that the printer that is printing this set did the last several years of Diamond Kings, so we’re getting some of the old team back together. Finally, our Kickstarter has more than just the baseball card set. For example, we have a limited edition Aaron Judge print numbered to 99 and Dick’s original artwork of Shohei Ohtani!
SABR Baseball Cards: This may sound like an odd question, but many collectors care about such details. Will the card set’s serial numbering be reflected on the packaging only, or will each card be individually numbered?
Marq Evans: Each card. For example, the 50th set ordered through our Kickstarter campaign will have all 22 of its cards individually numbered 50/499.
SABR Baseball Cards: Now you have me hoping the 21st set ends up with a Clemente collector and set 99 goes to a Judge fan! Just one last question. Dick this one will take you back 40 years if that’s okay. The 1983 Donruss Hall of Fame Heroes set represented the first time cards of Negro Leaguers Josh Gibson and Cool Papa Bell could ever be pulled from packs, at least in this country. What inspired you to include them in the set?
Dick Perez: I guess it was to emphasize the point that there were players from the Negro Leagues who were just as great as any Hall of Fame member. They are now part of the heritage that institution honors.
SABR Baseball Cards: Thank you, gentleman. Best of luck with the film. I’ll be keeping my fingers crossed that there’s an Oscar in your future!
A few weeks ago, my daughter walked downstairs and handed me a handful of baseball cards I had given her years ago. She had been using them for bookmarks, she confessed, and was ready to get them off her desk.
As I sifted through about 30 cards, scanning them front and back, I remembered something that had escaped me as I have become a more casual collector: You can sometimes learn a lot about a baseball player from his card, and it isn’t always about baseball.
A good example can be found on the back of Al Williams’ 1982 Donruss. Under “Career Highlights,” among the stats and facts, we learn that Al, a Minnesota Twins pitcher from 1980 to ‘84, “survived a Nicaraguan earthquake in ‘72 that destroyed half his house while he was sleeping.”
That line itself sent me Googling for more information about the earthquake. The 6.3 magnitude event struck near the capital city Managua about 30 minutes after midnight on December 23, 1972. Reports vary widely about how many people were killed, between 4,000 and 11,000. More than 20,000 were injured and 300,000-plus were left homeless.
(Baseball historians will be quick to note that Roberto Clemente was delivering aid to the victims of this earthquake when he died in a plane crash off the coast of Puerto Rico.)
Al was 18 at the time of the earthquake. It was just a year after he began playing baseball.
The next line Donruss listed among the pitcher’s “Career Highlights,” said Al “fought 16 months with the guerilla forces against the Somoza regime in Nicaragua in ‘77-’78.” The next line tells us he “was the strikeout leader of the ill-fated Inter-American League in 1978.”
OK, that sentence seems a bit out of place. Let’s go back to Al fighting with guerilla forces.
According to an April 3, 1984, New York Times story, which quotes that year’s Minnesota Twins media guide, the Nicaraguan government would not grant Williams, then a minor leaguer for the Pittsburgh Pirates, a visa to leave the country to join his ball club in the United States in 1977, so “this prompted Al to sign up with the Sandinista National Liberation Front guerillas and he was engaged in jungle fighting against forces of Anastasio Somoza for the next 16 months.”
Times reporter Ira Berkow asked Al about those months of fighting and his “cloak and dagger” escape – that’s the way the Twins media guide phrased it – from his home country.
“That’s in the past,” Al replied, sitting in front of his locker. “I live for the future.”
Three years prior, the Times wrote about “Fearless Al Williams” for a section titled “Sports People.” There, Al spoke briefly about the time he spent fighting and away from baseball.
“I really missed baseball the two years I was out of it,” he said, “but, I wasn’t thinking about baseball all the time. “I was just trying to stay alive.”
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.
Last November I wrote about how Fox Sports has been using junk wax baseball cards as inspiration for its web graphics. It was a fun piece to work on and one of the best things about it is that it came to the attention of the designer at Fox who worked on those graphics. Garrett Prentice (@garrett_psd) has been a designer for Fox Sports for two years and has previously designed key art for television and movie releases. He has also designed for both the Washington Commanders née Redskins and the Los Angeles Rams.
We’ve been following each other on Twitter for a few months now and when it became clear how popular the baseball card graphics were with this community I asked him if he’d agree to answer a few questions about himself, his designs, and his relationship to card collecting. Garrett graciously agreed to answer my questions and put a lot of thought into his responses. What follows here required basically no editing.
Nick: Looking at the Fox Sports story cards as well as your portfolio shows a lot of designs that distinctly reference physical prints. From things like worn edges, wrinkled paper, and scotch tape to seriously geeky things like reproducing halftone rosettes, creating two-ink looks, and including printing crop marks and registration it’s clear that you appreciate the history of graphic design and the fingerprints of its production. Can you talk about your design influences and whether the baseball cards are a natural progression from this or if they were something special for you?
Garrett: I make it a point to include a decent amount of texture and familiar printing techniques in my work so that it doesn’t feel digital and synthetic. Sometimes, all the little extra things that you mentioned can really elevate a design. It shows attention to detail. I used to go to antique stores a lot in college, and would keep an eye out for fine details that I could incorporate in my work.
While in college, I loved the work of Fraser Davidson, Michael Schwab and Darrin Crescenzi. Although they have extremely different styles, I was really drawn to each of them. Davidson has a fun and playful side to his work that I really love. He is also probably the best sports logo designer in the world. Schwab has an iconic and vintage style that is timeless. Lastly there’s Crescenzi, whose work is so elegant and modern. I always thought he had the coolest style of any designer. He made a pretty sweet Game of Thrones poster you should check out.
These days, I’m influenced by Neil Jamieson, Matt Lange, and TRAN LA. Most of the time I try not to pull inspiration for my work. I just try to make the best design with the images I find. I’m also inspired by the social team at FOX Sports. It’s pretty awesome that I have access to their PSDs* — not only because I can incorporate them into my work, but because I can dive in and see how they did something.
*.psd is the native Photoshop file format which preserves all layers, masks, etc.
I think making baseball cards at some point is a natural progression, but I just need to keep working hard and learning. There are so many great designers out there to learn from.
Nick: How did you choose the card designs you’ve been using since they’re as old as you are? Do you just like the “junk” era of cards or is that part of the general nostalgia marketing that’s currently directed at my generation?
Garrett: I gravitate to the ’90s era of card design simply because it reminds me of my childhood. I started asking my mom to buy me cards around at 10 years old, so that would be around 1996–97. I had mostly Topps and Upper Deck — which I always revered the most because I loved the shiny logo. Another reason for this is that I didn’t have the money to afford the “premium” cards.
Nick: Making digital web graphics look like physical objects is something I’ve thought about for long time with things like the Topps Bunt App. Sometimes I feel like it’s not fully embracing what digital is best at. Other times it’s a reminder that we have centuries of practice about what works best for communication. Outside of the way they look, what are your thoughts as a graphic designer about what it means to maintain and reference the concept of a physical object in the digital realm.
Garrett: I think it’s nice to have a little bit of both. Sleek and polished digital design certainly looks awesome when it’s executed the right way, which is how a lot of my favorite NFTs look. But adding the printed or real-world mistakes and imperfections just shows me that the designer took the time to add another layer of detail. I think there should always be room for digital art that looks organic or is a reference to mixed media. It gives things a warmer feel. Take a look at the work by Sergio Santos (@elsantosbaseball). He does this to the extreme, mostly because he paints everything, but also because he doesn’t care if it’s perfect, which is why I love his work.
Nick: Both regarding cards and regarding the other reference materials you’ve used (like the Harry M. Stevens scorecard), what’s your reference library like and is it part of your personal collection?
Garrett: My reference library includes a ton of cards from my youth, about 100 Sports Illustrated magazines that I saved (mostly from the late 90s) and hundreds of Starting Lineups. I also love buying printed things on eBay, like old postcards, money, and recently, a map of The Masters golf course at Augusta National. Aside from that, my main reference sites are Behance, Pinterest, Twitter, Instagram, IMP Awards, The Cardboard Connection, and Automobilist.
Nick: If you have a personal collection what do you collect and how long have you been collecting?
Garrett: I have a respectable junk card collection that isn’t worth anything from a collecting standpoint. Upper Deck and Topps were my favorite brands as a kid, and I would jump at an opportunity to work with either of them. Although I love cards, what I cherish most are my Starting Lineups. I love the packaging and they’re just nostalgic for me. My favorites are the 1991 Michael Jordan, and two Kobe Bryants (1996, 1998). They’re all in very good/mint condition, but I’ve never sent them in to be graded. I’m too nervous they will get banged up in delivery.
I bought three (Giannis Antetokounmpo, LeBron James, Steph Curry) of the newly released NBA series, but I was underwhelmed. I really don’t like the new branding, and the size and packaging style of the originals can’t be beaten.
Nick: Your portfolio shows off the vertical images. Fox Sports however tends to emphasize the horizontal versions due to mobile site and social media preview reasons. I appreciate that the two versions are actual redesigns. Which aspect ratio do you prefer (if any) both in terms of creating the cards and in terms of the final product?
Garrett: I start with the vertical since that’s what the user sees first on the Home Screen. The art used to go full-bleed on the home screen before the FOX Sports app was recently redesigned, so that was always the main priority. I typically prefer the vertical also, since it’s more similar to one-sheets I’ve designed in the past.
Nick: How do you feel about people printing your work out and putting them into binder pages?
Garrett: It’s a huge compliment. It’s always nice to see people appreciate your work, with whatever you do. I appreciate the time they took out of their day to do something like that. It’s really cool.
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.
During the playoffs a few of us noticed that Fox was putting out baseball card inspired graphics. These were showing up as Tweet previews among other things and they caught my attention due to being interesting twists on something I was already familiar with.
The first batch I noticed were all riffs on 1991 Topps. Urias is from October 11, Marsh from October 18, and Kim from the 21st. They seem to be used to illustrate player profiles—quite appropriate for a baseball card reference—and show a great attention to detail. I really like the addition of the facsimile autographs and adding the logo baseball so they can use the pennant for the Fox logo. Everything fits together perfectly plus they have some of the better fake printing I’ve seen.
Depending on your browser window width you’ll see either the horizontal or vertical designs. The horizontals show up on narrower views as a header and, since they’re the social media preview image as well, I suspect they were designed first. That said I really like the vertical designs and how they look like they might fit in tobacco pages.
Just when I’d gotten used to 1991 Topps though Fox dropped a 1991 Donruss inspired design of Jeremy Peña. This one doesn’t work quite as well in part due to the need to have a vastly different approach to the name box. 1991 Donruss is such a diagonal design that the horizontal modification just won’t work.
I do however really like making the border designs match the team colors. Dropping the Astros logo back there is a fantastic as well and letting the photo of Peña overlap the borders makes everything much more dynamic. While this doesn’t work as well as a design reference it has a lot of great ideas demonstrating about how 1991 Donruss might not be as bad as so many people say it is.
Fox then threw me by using 1989 Topps Football for Harrison Bader. It’s interesting that this very plain design* works so much better digitally.** I suspect that a large part of this is due to the way the horizontal design makes the stripes a lot more prominent. I’m not sure the vertical would be as nice if it didn’t have the black fade.
*I’ve never seen anyone gush about this set or design.
**Though one reason for this is that Fox’s logo is a black overlay that I barely notice against the out of focus crowd.
The most-recent “card” Fox has posted is this one of Chas McCormick. I don’t recognize the design except that it kind of looks like a mashup of of all three previous designs. Some of 1991 Topps’s double borders mixed with 1989 Football’s stripes and a 1991 Donruss cant. The result is kind of generic but also something that totally suggests modern Topps Big League.
I continued looking back into July but the Judge was was first obvious trading card design I could find. Is interesting to me it was a football design which Fox selected. It’s also worth nothing here that the Judge uses a fantastic halftone dither with a real rosette pattern.
The Mike Trout also deserves some discussion. There are differences in the name/position handling, logo treatment, and photo cropping compared to Peña but the 1991 Donrussness shines through. I’m pretty sure the borders use the exact same design elements too. But the team color treatment looks great and confirms how taking 1991 Donruss in a team color direction would completely transform the set.
The whole group of eleven designs is also something that I find really cool. There’s a whole range of made-up cards as used on programs and other printed material but the way these are intended for a digital audience got me thinking about Topps Bunt, the nature of digital cards, and how so many of them evoke physical properties.
These are purely digital creations (though you could absolutely print the horizontal ones out as real cards) but they have designs which suggest that they’re real physical items and aren’t just web graphics. From things like the print screens to the way there are borders and margins which treat the graphic as a self-contained object, they don’t feel at all like the usual illustrations we see online.
It’s also interesting to me how every one of these evokes a junk wax era design. That’s not what a lot of people think of as the golden age of baseball cards* but it may be the era of peak trading card ubiquity. Those borders—even the football ones—are from an era when cards were everywhere and their presence was part of the national language of sports.
That Fox uses them 30+ years later as visual shorthand for saying “this article will profile a player” confirms both how deeply steeped they are in our sports culture and how much trading cards in general color the way we remember and interact with sports.
Note
There are a couple other fake-printing graphics which Fox made before they started making the trading-card inspired ones. These suggest that Fox was moving this direction before it realized that trading cards were the look they wanted.
On September 1 Fox profiled Julio Rodríguez using a fake postcard complete with a fake stamp/postmark on the picture side of the image and bubble lettering that’s asking for a small image inside each letter. This graphic also includes a drop shadow to give the card depth and faked wear and tear on the paper.
It’s trying a little too hard for my taste (though the fake halftone rosettes are great) and ends up in the uncanny valley where it looks like something designed by someone who’s never seen an actual postcard.
The next day Fox wrote about Judge and Maris using what I’m guessing is a reference to a vintage program.* This is an interesting design complete with yellowed paper effects and a less-convincing fake halftone. Clearly not a card but, as with the postcard, it’s drawing on our associations with these things as physical objects.
*It looks very familiar to me but I can’t place it.
I haven’t noticed anything really like these since they started doing the trading card graphics the following week so it kind of feels like the trading cards had exactly the right feel Fox was looking for. I also didn’t see anything like these as I kept digging back in time through Fox’s archives. Nothing in August and I gave up digging in July.
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.)
I’ve had a running joke on Twitter about how “when I was your age rainbows looked like this” where “this” refers to the multiple different colors of the late 80s and early 90s Donruss releases. From 1985 to 1992 Donruss released smaller—often 56-card—box sets around certain themes like Highlights, Rookies, Opening Day, All Stars, or the more-generic “Baseball’s Best.”
These sets are fun both because they’re often super-focused thematically and because they always presented a color variation on the base Donruss design. Highlights were orange in 1985 and 1986. Rookies were green from 1987–1992 except in 1991. The other themes had no consistent colors.
Occasionally players would appear in all the different sets in a year. The result of this is that you can collect something that appears similar to the modern parallel rainbow collecting where you can see what the base design looks like with different border colors. The only one of these I have in my collection is Pete Stanicek’s 1988 rainbow* but it occurred to me that it would be fun to go through and see how many guys had a proper rainbow each year.
*Yeah he’s one of my PC guys.
For the purposes of this post I’m only looking a years where there are at least three different sets available. This rules out 1985, 1991, and 1992 since 1985 only has a set of Highlights while 1991 and 1992 only have a Rookies set. I’m also not counting small sets like the Grand Slammers or any of the inserted bonus cards. Nor am I looking at sets which use a different design whether it’s the oversized Action All Stars or the close-but-not-quite 1988 All Stars.
1986
There aren’t a lot of rookies in the Highlights set but since two of the Highlights cards each year are the Rookie of the Year winners, those are the two most-likely ones to have rainbows. In 1986 both of these winners also had cards in the base Donruss set (and Worrell even had two Highlights to choose from).
I actually really like the Highlights set concept with all the monthly and yearly awards, other records broken or unique achievements reached, and Hall of Fame inductees. Is a very nice quick summary of that season of baseball and I really wish it had lasted more than just from 1985–1987.
1987
Just a single rainbow available. With four sets in 1987 I wasn’t sure there’d even be one. As it is, Kevin Seitzer is in all three box sets but for some reason doesn’t have a base Donruss card and Mark McGwire apparently wasn’t an Opening Day Starter.
It’s worth noting here that while in 1985 Donruss kept the black borders and changed the red stripe to be orange for highlights, in 1987 Donruss is doing the full border color swap.
Opening Day is one of my favorite sets of all time. The idea of having a set of just the Opening Day starting lineups is absolutely wonderful. It bookends highlights as a “state of the league in the beginning of the season” marker and is the kind of hyper-specific checklist which I’d love to see more of.
1988
In 1988 Donruss stopped making a Highlights set and switched to a larger, 336-card set called “Baseball’s Best.” This was more of a star-based set and the larger checklist combined with the looser specification meant that instead of looking for the on or two rainbows we have fifteen of them. This is more than 25% of the Rookies checklist. Heck, almost half of these guys didn’t even qualify as Rated Rookies.
1989
Like 1987, 1989 features three extra sets in the same design as the base cards. With the rainbow already existing as part of the base design it would’ve been unlikely to be able to build a real rainbow of parallels. The All Star design however did use a completely different color scheme compared to the base cards (not so much Baseball’s Best or The Rookies). Unfortunately there are no Rookies in he All Star set and so there’s no possibility for a proper rainbow.*
*It is however worth noting that every card in the Grand Slammers set this year comes in all five color options available in the base set.
1990
This is the last year where a rainbow is possible and is very much the same as 1988. Twelve of the Rookies are also in one of the two Best sets* though at least most of them are Rated this year.
*For the purposes of this post I’m combining “Best of the AL” and “Best of the NL” into one set since hey share the same color and by being league-specific have no overlap.
One of the fun things about looking at the Donruss rainbows is how they reveal different directions the base design could have gone. A lot of base Donruss designs are very much things you either love or hate and the color choice is a huge part of that reaction. I’m not going to pass judgement on any of the options other than to say that as a Giants fan I prefer the orange versions of 1986 and 1988.
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.
There are many directions that one could go with this topic, two of which have already been well covered by SABR Baseball Cards authors and two of which would be very welcome here.
This article, however, will look at the first widely available baseball cards produced in the United States to showcase Negro Leaguers as Negro Leaguers. In other words, a card of Satchel Paige as a Cleveland Indian (1949 Bowman, 1949 Leaf) or St. Louis Brown (1953 Topps) would not qualify while a card of Satchel Paige as a Kansas City Monarch most definitely would. Should a working definition of “widely available” prove helpful, take it to mean there is nearly always at least one card from the set available on eBay.
Hall of Fame postcards (1971 to present)
I’ll leave it to readers individually to decide whether to count postcards as baseball cards. If you are in the “no” camp, feel free to skip this first entry. If you are in the “yes” camp then we’ll kick things off with the postcards issued and updated annually by the National Baseball Hall of Fame.
While one could quibble that more than half the text on the Paige card, first issued in July 1971, relates to his post-Negro Leagues career, I’ve chosen to count this postcard because A) Paige was selected by a special committee on the Negro Leagues, and B) he is not shown in an Indians, Browns, or Athletics uniform. The Gibson postcard, which carries no such ambiguity, was first issued in July 1972, as was a similar postcard of teammate Buck Leonard.
1974Laughlin Old-Time Black Stars
Bob Laughlin, also known for several collaborations with Fleer, independently produced this 36-card set in 1974. At time of issue, Satchel Paige (1971), Josh Gibson (1972), and Buck Leonard (1972) were the only Hall of Famers in the set. (Cool Papa Bell was inducted in 1974 but after the set was released.) Now an impressive 22 of the 36 cards in the set depict Hall of Famers, with all 14 of the remaining presenting compelling cases for enshrinement.
1975-76 Great Plains Greats
Thanks to Ted Chastain in the reader comments for identifying this 42-card set. Per the Standard Catalog the cards were produced by the Great Plains Sports Collectors Association. Cards 1-24, which includes Cool Papa Bell, were produced in 1975 and sponsored by Sheraton Inns. Cards 25-42 were produced the following year and sponsored by Nu-Sash Corp.
1976 D&S Enterprises Cool Papa Bell
In 1976 John Douglas of D&S Enterprises issued a 13-card set in conjunction with and James “Cool Papa” Bell, who was the subject of the set.
Interestingly, one of the cards in the set is a “card of a card” featuring Bell’s 1974 Laughlin card, updated with facsimile autograph.
1976 Laughlin Indianapolis Clowns
A second Laughlin set of note is his 42-card 1976 Indianapolis Clowns issue, mostly coveted by collectors today for its card of a young Henry Aaron.
In 1975 pizza chain Shakey’s issued a small 18-card set of Hall of Famers, followed up in 1976 by a much larger set featuring all 157 members of the Hall (and a second Robin Roberts card) in order of their induction. The latter set therefore included several Negro League stars: Satchel Paige, Josh Gibson, Buck Leonard, Monte Irvin (New York Giants photo), Cool Papa Bell, Judy Johnson, and Oscar Charleston.
Not counting the Hall of Fame’s own postcards, which may or may not be regarded as baseball cards by some collectors, I believe this Shakey’s set is the very first to feature both “traditional” (i.e., white) major leaguers and Negro Leaguers on its checklist.
1978Laughlin Long-Ago Black Stars
Four years after his initial Negro Leagues set, Laughlin produced a sequel, employing a similar design. Aside from a brand new checklist of 36 cards, the most evident updates were the replacement of “Old-Time” with “Long-Ago” and a greenish rather than brownish tint.
1978 Grand Slam
This 200-card set may have been produced with autographs in mind as (I believe) all 200 of the early baseball stars it featured were still living at the time the set was planned. While nearly one-fourth of the set featured current or future Hall of Famers, there was no shortage of lesser stars such as Bibb Falk and Ed Lopat. The set even included an outfielder with a lifetime OPS of .182.
More to the point, the set included cards of Negro Leaguers Buck Leonard, Judy Johnson, and Cool Papa Bell.
1980-87 SSPC Baseball Immortals
When initially issued in 1980, this SSPC set included all 173 Hall of Famers, i.e., the Shakey’s Pizza roster plus the 16 players inducted between 1977 and 1980. As such, it included the same Negro Leaguers as the Shakey’s set but also added Martin Dihigo (1977) and Pop Lloyd (1977).
Following the initial release, SSPC updated the checklist multiple times through 1987 to include the Hall’s more recent inductees. As such, cards of Negro Leaguers Rube Foster (1981) and Ray Dandridge (1987) were subsequently added to the set.
P.S. No, I don’t really know what’s happening on that Foster card, and don’t even get me started on the Josh Gibson!
1982 “TCMA” Baseball Superstars
Two different “Baseball Superstars” sets were produced in 1980 and 1982 that may or may not have been produced by TCMA. (Andrew Aronstein, son of TCMA co-founder Mike Aronstein, believes the cards were sold by TCMA but not produced by TCMA. The Standard Catalog notes the cards were probably produced by Card Collectors Closet in Springfield, MA.) The second of these sets included a lone Satchel Paige card on its 45-card multi-sport checklist.
1983 Sporting News 1933 All-Star Game 50th Anniversary
This 60-card set was released by Marketcom to celebrate the 50th anniversary of the first All-Star Game, and it’s first 48 cards featured the 32 players from the American and National League All-Star rosters plus various other players of the era such as Johnny Hodapp and Chick Fullis. Likely in recognition of the first East-West Game, also in 1933, the final dozen cards in the set consisted of Negro League greats selected by the Sporting News.
These same twelve Negro Leaguers would be reappear in their own 1933 All-Star tribute set in 1988.
1983 ASA Bob Feller
ASA was a big name in the early 1980s when it came to single player tribute sets, with Bob Feller the subject of one of its 1983 offerings. Card 5 in the twelve-card set includes a cameo by future teammate Satchel Paige in his Kansas City Monarchs uniform.
Note that a “red parallel” of the card (and entire set) exists as well.
1983 Donruss Hall of Fame Heroes
In 1983, Donruss augmented its slate of Hobby offerings to include a 44-card “Hall of Fame Heroes” set. While the majority of the set featured National and American League stars, it was notable at the time for being the first “mainstream” card set to include Negro League legends.
Cool Papa Bell and Josh Gibson are the two unambiguous Negro Leaguers in the set, and I would further count Satchel Paige in spite of his St. Louis Browns uniform.
Collectors hoping to get even more of artist Dick Perez’s talents applied to the Negro Leagues would be in luck the following year.
1980-2001 Perez-Steele Postcards(sorted in this article as 1984)
Beginning in 1980, the Perez-Steele Galleries issued a set of 245 postcards over the course of 22 years. The first of the releases to include Negro Leaguers was Series Five in 1984, which included Josh Gibson, Buck Leonard, Cool Papa Bell, and Judy Johnson. (The same series also included Satchel Paige as a Cleveland Indian and Monte Irvin as a New York Giant.)
1984 Decathlon Negro League Baseball Stars
Apart from the copyright line, this set is identical to its far more plentiful reproduction in 1986 by Larry Fritsch.
Consisting of 119 cards, it would take nearly four decades for a set to provide more Negro Leagues firepower than this one.
1985 Decathlon Ultimate Baseball Card Set
Decathlon returned the following year with a 15-card set of baseball legends, highlighted by Josh Gibson.
In addition thirteen white players, the set also included a “second year” card of Moses Fleetwood Walker.
If the artwork looks familiar, it was done by Gerry Dvorak of 1953 Topps fame.
1986 Larry Fritsch Negro Leagues Baseball Stars
Here is the aforementioned reissue of Decathlon’s 1984 offering, still available from Larry Fritsch Cards. I believe you can also pick up a set in person at the Negro Leagues Baseball Museum gift shop.
1987 Dixon’s Negro Baseball Greats
Salute to historian, author, and Negro Leagues Baseball Museum co-founder Phil Dixon, whose 45-card set was the first ever set of baseball cards produced by an African American.
Phil also worked with the Ted Williams Card Company on its Negro Leagues subsets in 1993 and 1994.
1988 Hardee’s
In addition to Charles Conlon photographs of five white major leaguers, this six-card set also included a card of Cool Papa Bell.
Though the small print on the Bell’s card suggests a Conlon photograph, it should be noted that Charles Conlon passed away in 1945 while Bell did not become the manager of the Monarchs until 1948.
1988 Pittsburgh Negro League Stars
This 20-card set, highlighted on the SABR Baseball Cards blog in 2020, was given to fans by the Pittsburgh Pirates on September 10, 1988. Biographical information on the card backs comes from historian Rob Ruck.
Befitting a Pittsburgh-themed set, nearly all subjects are Crawfords or Grays, though there are some exceptions such as Monte Irvin.
1988 World Wide Sports 1933 Negro League All Stars
This 12-card set features the same twelve Negro Leaguers as the 1983 Marketcom set and also shares a common theme, that of the inaugural All-Star Game (or East-West Game). Additionally, many of the cards use identifcal source images apart from differences in cropping. However, this set is a standalone Negro Leagues set whereas the 1983 set included 48 players from the white major leagues.
This set of 12 postcards features the artwork of Susan Rini. Total production was 5000 sets.
1989 Sportflics
The 225-card set from Sportflics did not include any Negro Leaguers, focusing instead on contemporary players and prospects.
However, each pack included one of 153 small inserts known as “The Unforgetables” and featuring a Hall of Famer.
Among the players included in this insert set were Josh Gibson, Pop Lloyd, Buck Leonard, Rube Foster, Martin Dihigo, Oscar Charleston, Cool Papa Bell, Satchel Paige, and Monte Irvin.
The Negro Leagues set itself wasn’t scandal-free as it managed to confuse its two best players!
POSTSCRIPT
Counting the Hall of Fame postcards that began this article, we’ve now looked 20 years of Negro League baseball cards. Though the numbers of cards and sets may have been more than you imagined for this period from 1971-90, it’s fair to say that nearly all such sets might warrant the “oddball” label. Notably, we saw nothing at all from the biggest name in all of baseball cards, Topps.
The omission of Negro Leaguers by Topps could certainly be seen as a sign that Topps deemed these players unworthy of their precious cardboard. To an extent I buy the argument, but I’ll also counter with the fact that Topps operated “by the book” when it came to licensing, permissions, etc. I suspect many of the sets profiled in this article provided no financial compensation to the players or estates involved, meaning their honoring of the Negro Leagues may have been part celebration but also part exploitation. If so, perhaps Topps deserves kudos for not following suit.
Though I may have overlooked a card or set somewhere, I believe the first Topps Negro League cards appeared in 2001, most prominently as part of a “What Could Have Been” series.
Though unintentional, the set led off with a “what could have been” to top them all: Josh on the Kansas City Monarchs. Such would surely end all greatest team ever debates right here and now!
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SABR's Baseball Cards Research Committee 