Death and Taxes and Baseball Card Litigation [Part III, 1986-1998]

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.
  • “Doctor Says Mantle’s Prognosis ‘Quite Good’,” Daily Sitka (Alaska) Sentinel, June 23, 1995: 10.
  • Norm Cohen, “Classy Ripken Has No Quota,” Newsday (Nassau Edition) (Hempstead, New York), August 6, 1995: 144.
  • “Jordan, others not satisfied with agreement,” Index-Journal (Greenwood, South Carolina), August 17, 1995: 17.
  • “Baseball,” Salina (Kansas) Journal, June 2, 1996: 34.
  • “Appeal Fails Over Use of C. Allison Trading Card,” Birmingham Post-Herald, March 28, 1998: 14.
  • Dave Jamieson, “The Great Baseball Card Bubble,” Slate, March 24, 2010.

Websites

https://bizfileonline.sos.ca.gov/search/business, Record number 1826013, accessed October 18, 2022.

tcdb.com

Interviews

  • 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.)

PlayerCard Used
Alomar, Roberto1991 Donruss
Alomar, Sandy1992 Donruss
Boggs, Wade1991 Upper Deck
Bonds, Barry1991 Donruss
Bonilla, Bobby1991 Donruss
Browning, Tom1991 Upper Deck
Canseco, Jose1991 Score
Canseco, Jose1991 Upper Deck
Canseco, Jose1991 Score
Chamberlain, Wes1992 Donruss
Chamberlain, Wes1991 Fleer
Clark, Will1991 Upper Deck
Davis, Eric1991 Fleer
Davis, Eric1991 Upper Deck
Dawson, Andre1991 Upper Deck
Fielder, Cecil1991 Upper Deck
Fielder, Cecil1991 Donruss
Gonzalez, Juan1992 Donruss
Gooden, Dwight1991 Score
Gooden, Dwight1991 Upper Deck
Ken Griffey Jr.1991 Upper Deck
Ken Griffey Jr.1991 Donruss
Henderson, Rickey1991 Upper Deck
Henderson, Rickey1990 Score
Henderson, Rickey1991 Donruss
Jefferies, Gregg1991 Upper Deck
Johnson, Howard1992 Donruss
Joyner, Wally1991 Fleer
Justice, Dave1991 Donruss
Maas, Kevin1991 Donruss
Martinez, Ramon1992 Donruss
Mattingly, Don1991 Upper Deck
McGriff, Fred1991 Donruss
Mitchell, Kevin1991 Upper Deck
Morris, Jack1990 Upper Deck
Ripken, Cal1991 Upper Deck
Ryan, Nolan1991 Upper Deck
Ryan, Nolan1991 Donruss
Sandberg, Ryne1991 Donruss
Smith, Ozzie1991 Donruss
Strawberry, Darryl1991 Score
Thomas, Frank1991 Donruss
Vaughn, Greg1991 Fleer
Yount, Robin1991 Fleer
Appendix 1 – Tri Cards Checklist

Cardboard Crosswalk: 1981 Fleer cards and stickers

Virtually all collectors around my age have vivid (or at least blurry) recollections of 1981 as a watershed year in Hobby history. This was of course the year that Fleer and Donruss crashed the Topps monopoly with full-size baseball card sets featuring active players.

Of the multiple offerings, the Fleer cards were hottest initially, largely due to a ridiculously high number of errors in early print runs. While the cards have cooled off considerably in the time since, I will say Fleer’s Tom Seaver photo is among my favorite and a George Foster card captioned “Slugger” is always welcome in my collection.

Building off their prior success with team stickers, Fleer complemented its baseball card set with a 128-card “Star Stickers” set, which I recall as coming out at least a month or two after the cards.

Even at age 11 I was smart enough to know the dumbest thing in the world would be to peel and stick the stickers as directed. That was for suckers. I had reached the age (thankfully only temporarily) where “protecting my investment” took priority over enjoying my collection.

Kids lucky enough to assemble collections of both the cards and the stickers, whether stuck onto notebooks or preserved for posterity in shoeboxes, likely noticed that some of the photographs used on the stickers matched those of the cards, subject only to minor differences in cropping, brightness, or background clean-up. Cobra presented one such example.

Other times, the Star Sticker offered a genuinely new shot of the player, as was the case with this Don Baylor pair.

Somewhere between these two possibilities were 30 or so stickers that might have been confused for their cardboard counterparts until placed side by side.

In this Cardboard Crosswalk, I’ll do my best to showcase all “near pairs” across the two sets. As you’ll see, some close calls will prevent me from declaring my work definitive.

HEAD TURNERS

The first grouping of near-pairs are these 19 players, whose images are nearly identical other than the direction the player is facing (and less interesting differences such as zooming or cropping). Generally, one image will show the player looking directly at the camera while the other will show a three-quarters angle.

POSERS

This next group of six players trades one pose in for another and includes some of my favorite pairings across the two sets, particularly Dave Kingman and his subtle shift from batter to fielder.

SMILE!

We already saw Bobby Grich go from stoic to smiling. The reverse occurs with Rick Burleson.

HIGHLIGHTS

This next collection could come straight out of the “Highlights for Children” magazine where the child awaiting dentistry staves off total boredom by attempting to spot all differences between two nearly identical images. In each case, I believe I have found at least one feature that distinguishes source photos across the pair, but you may want to check my work.

LEFTOVERS

Here are three other near pairs that I didn’t think fit neatly into any of the earlier categories.

NOT SURE

And finally, here is Richie Zisk. When pulled from the pack, I doubt any collector looked at the sticker and thought, “Hey, this looks familiar.” However, putting the card and sticker side by side suggests photographs taken in close succession.

The 28 pairs shown thus far reflect about 20 percent of the sticker set, which includes 125 numbered cards and three unnumbered checklists. What about the remainder of the set?

Similar to the Don Baylor shown early in the article, about 70 of the stickers offer a completely different look at the player, while about 30 draw from the same source image as the standard baseball card. Part of the reason I say “about” is that I can’t always tell.

Take Rod Carew for example. His card and sticker appear to use the same source photo (though clearly the background has been altered). However, his head may be tilted more on the card than the sticker, meaning we may be looking at neighboring images on the roll. Carew is not unique in this regard as there are numerous card-sticker pairs where I just can’t be certain.

A puzzle of the sticker set, at least to me, is why Fleer introduced new photos for some but not all players. At least to my eye, the sticker photo is neither consistently better nor worse than the card photo, so it doesn’t appear to reflect any desire to improve upon the photo quality of what had been a hastily produced set.

One thought is that whoever was working on the sticker set paid little attention to the card set and simply chose the sticker photo independently from among the options available. That the same photo was chosen about half the time suggests a fairly small pool of photos (or at least photos that someone might choose), which to me works against the overall theory.

Lacking any compelling theory on the above, I’ll simply close out the crosswalk with a few random tidbits about the sticker set.

  • While the card set is famous for its many errors and variations, the sticker set has no known variations and only one recognized uncorrected error (UER): the misspelling of Davey (or Dave) Lopes as Davy. (The same UER occurs in the card set.)
  • While a wonderful innovation of the Fleer card sets, not just in 1981 but in subsequent years, was to sequence the cards by team, the numbering of the stickers appears completely random.
  • Sadly for Jays fans, the sticker set includes no Toronto players despite all 25 other teams being represented.

Error cards

Sometime last year I picked up the last card I needed for my 1980 Topps set, placed it into its nine-pocket, and then took my well earned victory flip through the binder of majestic completed pages…only to find a page with a missing card. Dewey defeats Truman. Defeat from the jaws of victory. Bird steals the inbound pass.

Completing a set without actually completing a set is just one of the many cardboard errors I’ve made lately. Here are three more.

My largest player collection (by about 600) is the 700+ playing era cards I have of Dwight Gooden. For whatever reason, I decided a couple years back that the card at the very top of my Dr. K want list was Doc’s 1986 Meadow Gold milk carton “sketch” card.

I’d seen the card on eBay in the $10 range for a while, but you don’t amass 700+ cards of a guy by paying $10 each. At last one turned up for more like $3 and I couldn’t hit “Buy It Now” fast enough. When the card arrived I was genuinely excited to add it to my binder, only to find…

…I already had the card!

Just two weeks later, I “doubled” down by adding a card I thought I needed for my 1972 Fleer Laughlin Famous Feats set.

And again…

On the bright side, it’s not like these cards cost me real money. I’d never make the same mistake adding this Kaiser Wilhelm to my T206 Brooklyn team set, right?

Oops. Think again.

Of course what Hobbyist hasn’t accidentally added the occasional double or two…or three? Probably most, but how many could pull off the feat three times in one month?

In the corporate world, bosses would be calling for a root cause analysis and demanding corrective action. Am I simply getting old? Do I have too many different collections going? Have I gotten lazy at updating my want lists? In truth, probably yes to all three.

As a kid, and I think this was true of most die-hard collectors, I could open a pack and instantly know which cards I needed and which were doubles. I could do the same at card shows, looking through a dealer binder or display case. When it came to cards I had total recall. Evidently such cardboard lucidity is long gone, and it’s probably not a stretch to assume the same degradations have spread to various areas of adulting.

On the other hand, it’s also true that my purchases had much more riding on them back then. For one thing, every nickel, dime, and quarter were precious. Spending $0.50 on a 1963 Topps Ernie Banks (ah, the good old days!) when your entire card show budget (i.e., life savings) was $3.80 “borrowed” from various sources around the house was high finance. Add to that baseball cards being the only thing I thought or cared about, and it makes sense that I always batted a thousand.

An eternal optimist, it’s just not my nature to brand my “triple double” as what some collectors might bill a #HobbyFail. Rather, I’ll take solace in the adage errare humanum est and remember that it’s not the mistakes we make but how we respond to them that defines our true character. As a kid I would have sulked for weeks having committed even one of these blunders. Today I can laugh (and write) about them. Call these senior moments if you will, but isn’t”growing up” just a bit more pleasing to the ear?

Now does anyone wanna trade me a T205 Wilhelm for a T206?

UPDATE: The Wilhelm is no longer available for trade! About an hour after publishing this post the seller contacted me to let me know he’d accidentally sold it to someone else already. I guess I’m not the only one losing track of his cards these days! 😊

Death and Taxes and Baseball Card Litigation [Part II, 1965-1988]

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.”   

(Mark Armour, SABR Baseball Cards)

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 conspired together 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.

To be continued…

Sources/Notes:

Websites

www.baseball-reference.com

www.retrosheet.com[JS27] [JR28] 

www.tcdb.com

www.mlbplayers.com

Cases

  • 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.
  • Mark Armour, “The 1967-68 Player Boycott of Topps,” SABR Baseball Cards Committee Blog,  https://sabrbaseballcards.blog/2017/01/03/the-1967-68-player-boycott-of-topps/, January 3, 2017.
  • 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.

Cardboard Typos and Gripe-o’s—Part 2

For nearly 30 years, editing has brought home my bacon. It wasn’t my desired profession; I fell into it like an open manhole—and I’m still trying to climb my way out. The grammatical, punctuational, and syntactic boo-boos I fix have been mostly in the medical and pharmaceutical fields, but they’ve been pretty easy to spot in my spare time as well—which means, to a degree, on the backs, and sometimes fronts, of baseball cards.

Years ago, I began jotting down factual errors and spelling typos (punctuation issues and lack of hyphenation are so rampant that chronicling them would be a never-ending and pointless task). I do not keep abreast of baseball card commentary as vigilantly as I once did, so at least one of the following errors has been posted elsewhere, which means that others—maybe many—in this simple and hardly comprehensive multi-part list might also have been documented in that long interim.

Here, Part 2 continues this absolutely uncomprehensive, and extremely random, list of baseball card errors (see Part 1 here).

  • 1911 T201 Mecca Double Folder Lefty Leifield (backed with Mike Simon): Unlike other pitchers in the set, the stats for this talented Pirates southpaw feature batting and fielding records—Lefty’s pitching ledger for the previous season has been mysteriously replaced by his work with the glove. Yet it’s not even Lefty’s statistics. Card-mate and battery mate Mike Simon—whose statistics are completely absent under his own name—appears at first glance to have his statistics erroneously replacing Leifield’s field work (note the inclusion of passed balls). However, the lack of quality control on Mecca’s part is even more out of control than this: Beyond problematic typesetting, the statistics listed are wildly incongruent with Simon’s (as well as all other NL catchers’) performance in 1910—none more so than his alleged .536 fielding percentage—a number that couldn’t keep a catcher on a sandlot field. Just as egregious is his 64 passed balls. In actuality, Simon was not charged with either a single error or passed ball during the previous season. Who knows how these numbers were conjured—the lowest fielding percentage registered by any catcher in the majors in 1910 was .875, and after the rule changes of the 1890s, no catcher had let more than 27 balls past him since the turn of the century. If some supercentenarian is still manning the phones at Mecca Cigarettes, somebody should call to get the lowdown—pronto.
  • 1912 T207 Germany Schaefer: It’s common knowledge that Jim Delahanty’s T207 contains multiple misspellings of his surname (“Delehanty”) on the back (though the front is correct), but that spelling miscue also appears on the back of Germany Schaefer’s T207 (the two were swapped for each other, along with Red Killefer, in 1909, accounting for the mutual mentions). Schaefer’s bio also contains a more personal blunder, stating that, “Since arriving at the Capital he has played first, second, short and third….” However, the utilitarian Schaefer never took the field as a shortstop after his days in Detroit. As a macabre aside, Schaefer, a renowned baseball prankster, died of tuberculosis in the same New York village where Christy Mathewson succumbed to the disease six years later. (It may have even been the same sanatorium; I’m not certain.)
  • 1954 Topps Vern Law (#235): Vern’s “Year” line denotes that he spent the previous season “IN MILITARY SERVICE,” yet “IN” is missing the “I.” I’m not familiar with an Idaho accent, but perhaps Topps was writing in Vern’s native vernacular. (I’ve largely avoided minor points in these lists, but to spotlight Topps’ sloppiness, in the right-hand cartoon mentioning Bing Crosby, “Pirate’s” is incorrectly singular possessive; it doesn’t need an apostrophe at all, but if one is used, it should follow the “s” to be plural possessive. Misuse of the apostrophe is one of the most pervasive marks of ignorance found in print.)
  • 1933 Goudey Tony Lazzeri (#31): Goudey took “Poosh ‘Em Up”’s games played in 1932 and pooshed ‘em down, stating that he played 141 games—Lazzeri actually suited up for 142 games in 1932. Perhaps unfairly, his bio begins that “coming to the bat in his first world series with bases filled, struck out.” This is a necessarily incomplete, almost Twitter-like, reference to Lazzeri’s inning-ending whiff at the hands of Grover Cleveland Alexander in Game 7 of the 1926 World Series, of course. To be fair, it was actually the fourth time in the Series that Lazzeri came to the plate with the bases full. Twice, he delivered important sacrifice flies, including the eventual game-winning run in the top of the 10th in Game 5—without which the Series might never have gone to a seventh game and given baseball that gilded moment.  
  • 1933 Goudey Burleigh Grimes (#64): Burleigh’s bio declares that he “[b]roke into baseball in 1913 with Ottumwa in the Central Association.” With apologies to Radar O’Reilly, who was born right about the time that this card hit the shelves in his native Ottumwa, Burleigh was no rookie in 1913, having pitched in 9 games for the Class D Eau Claire Commissioners of the Minnesota-Wisconsin League in 1912. Had Radar been old enough to watch Ol’ Stubblebeard on the mound, he might have remarked, “Uh-oh, spitters!”
  • 1933 Goudey Earl Averill (#194): More inaccuracy than error—and much like Lefty Gomez’s cards mentioned in Part 1—virtually all of Earl Averill’s cards denote his birth year as 1903, whereas all official sources, including his headstone, report it as 1902.
  • 1949 Bowman Bob Lemon (#238): Bob was anything but a lemon as a pitcher, seven times reaching the 20-win circle and earning a place in the Hall of Fame; however, his cards are a strange and recurring saga of geographical ineptitude on the part of multiple manufacturers. Beginning with his rookie card, Bowman misspelled his birthplace of San Bernardino, California, as “San Bernadino.” (Incorporated in 1869, the city’s spelling had been officially established for 80 years by the time Bowman inked Lemon to a contract.) For most of Bowman’s existence, it repeated this error. One might attribute this to the same biographical information being used rotely over the next 6 years—except that Bowman got the spelling correct in 1951 and 1952, then inexplicably reverted to the original error for the remainder of its run. So, defying any semblance of logic, Bowman printed “Bernadino” in 1949 and 1950, changed correctly to “Bernardino” in 1951 and 1952, and then went back to its mistake in 1953, 1954, and 1955. If that weren’t bizarre enough, all three of Lemon’s Red Man Tobacco cards (1953-’55) also misspelled his birthplace as “Bernadino.” (I don’t know if Red Man, which had long been only a tobacco company, made some kind of deal with Bowman for its baseball information when deciding to issue its own cards—some of their bios read similarly in places—but blame would still fall on Red Man Tobacco for not at least proofreading its product.) In contrast, none of Topps’ cards that list a birthplace erred on this spelling, and Lemon’s 1954 Red Heart and Dan-Dee cards also are correct.
  • 1960 Leaf Jim Coates (#35): A double-dip for Jim. “Binghampton” is a misspelling. Hold the “p,” Leaf. A bigger blooper is that Leaf was under the impression that Coates had never pitched in the majors before 1959—his “Past Year” totals are identical to his “Lifetime” totals. However, Jim appeared in 2 games for the Pinstripes way back in 1956, making the majority of those lifetime statistics incorrect.
  • 1960 Leaf Al Spangler (#38): Al’s home is listed as “Maple Glenn, Pa.” Leaf apparently turned over a new leaf and gave Spangler’s home an extra “n”—the town is spelled Maple Glen. To my knowledge, it never went by “Glenn.”

Rife with typos, Topps’ 1964 Giants subset contains more than its share. Among them:

  • 1964 Topps Giants Orlando Cepeda (#55): Cepeda is denoted as having laced 38 triples as a rookie in 1958. This is diamond hogwash. Did Topps think third-base coach Herman Franks waved a red cape every time Cepeda rounded first so that the Baby Bull came raging uncontrollably into third? Owen Wilson’s 36 triples in 1912 has never been bested, and, in fact, no player has legged out more than 26 ever since. Cepeda, of course, ripped 38 doubles, not 38 triples.
  • 1964 Topps Giants Billy Williams (#52): Topps really shortchanged Billy by stating that he clubbed “20 two-baggers” for the Ponca City Cubs in 1957. The sweet-swinging Williams swatted twice that many in pacing the Sooner State League in doubles.
  • 1964 Topps Giants Carl Yastrzemski (#48): In the right-hand column, Carl was cited to have “wrecked havoc” on opposing pitchers. This is a malaprop—the term is, of course, “wreaked havoc.” At least Topps spelled his surname correctly.
  • 1964 Topps Giants Harmon Killebrew (#38): Deceptive text, even if inadvertent, is a no-no to an editor, so I’m calling out Topps for Killer’s headline, KILLEBREW WINS 2ND HOMER CROWN. As evidenced early in his bio, “For the second consecutive season, the Minnesota Twins’ slugger was the American League home run champion.” This is certainly accurate, Harmon having claimed the crown in 1962 and ’63. However, the headline implies very strongly that these were his only two homer titles to that point—yet Killebrew had also topped the AL in 1959, meaning, of course, that he’d nabbed his third homer crown in 1963, not his second. If I didn’t call this out, I’d be negligent in my long-time occupation as an editor.

If the 1964 Topps Giants subset is something of an editor’s treasure trove, the 1960 and 1961 Fleer sets are a gold rush. Some of the most problematic assemblages of cards out there, they have often caused me to wonder if the company headquartered in my hometown ever employed a fact checker or proofreader. Many’s the time I fantasized about going back in time to be hired as Fleer’s text editor. With a primo job like that, how could a young Ann-Margret not date me?

  • 1960 Fleer Christy Mathewson (#2): Fleer failed to list that Christy also pitched for Cincinnati. Some may say “Big deal—he pitched only 1 game for the Reds.” Well, it was a big deal. That final game—a victory—ultimately allowed Mathewson to tie Grover Cleveland Alexander for most victories by a National League pitcher (even though his true victory total wasn’t discovered until many years after his death). Fleer rectified this oversight—sort of—in its 1961 set, stating that he pitched all of his games “except one” for New York, without specifying that other team. However, Fleer did picture Matty in a Cincinnati uniform—although neither is this definitely, because Christy was better known in red as Cincinnati’s manager for several seasons, which Fleer references.
  • 1960 Fleer Joe Medwick (#22): Fleer anointed Medwick with an RBI total of 1949—which, at that time, would have put Ducky fourth on the all-time list, a handful ahead of Ty Cobb. Now, Medwick was an excellent run producer and, in fact, stands as one of the few National Leaguers to top the Senior Circuit in RBI for 3 consecutive seasons, but the actual total of runs he drove across the plate was a far less robust 1383. Remarkably, Fleer repeated this huge blunder on Joe’s 1961 card (#61).
  • 1961 Fleer Rogers Hornsby (#43): The Rajah’s home run total is incorrectly listed as 302 (he hit 301); his triples total is also inaccurate: 168, though he actually hit 169. His hit total is correct, so I wonder, if among all of the other revisions to old-timers’ statistics, one of Hornsby’s round-trippers was downgraded to a three-base hit. (301 was, as long as I can recall, his established home run total, as can be seen on his 1976 Topps All-Time All-Star card—which is almost certainly from where I first learned the total.)
  • 1961 Fleer Ty Cobb (#14): One of the biggest statistical oversights I’ve seen occurs in Cobb’s bio, as Fleer denotes Ty as having led the AL six times in hitting. As any moderately informed baseball fan knows, Cobb snared an incredible 11 batting crowns (or 12, depending on which source you consult—the Hall of Fame still claims the latter). Regardless of which you consider the true count, Cobb’s run of double-digit batting crowns was, even then, long regarded as one of the most amazing feats in sports annals—and an inexcusable gaffe by Fleer, especially considering that his 1960 Fleer card denotes Cobb as capturing 12 batting titles.

  • 1961 Fleer Grover Cleveland Alexander (#2): Fleer goofs again, misspelling “immortal” in the opening line of Alex’s bio (and fails to include a period as well).
  • 1961 Fleer George Sisler (#78): George’s bio is almost cruelly ironic in its boast that he “played in six World Series.” Sisler, of course, is renowned among the game’s greats who never played in the Fall Classic. (George worked for Brooklyn and Pittsburgh as a scout and batting instructor in later years, but this certainly does not equate with playing in a World Series, and his attachment to pennant-winning teams in either of these capacities fell far short of six anyway.) How could such a false statement be written—and, worse, approved? Perhaps more than any other card in Fleer’s 1960 and ’61 sets, this colossal blunder indicates a shameful lack of commitment to its product and the consumer.

  • 1975 TCMA Red Russell: Typos among “quasi-professional” sets such as TCMA are plentiful. One example is from TCMA’s 1975 issue spotlighting the 1919 White Sox squad. Breaking in with the Southsiders in 1913, Russell crafted one of the best—and most overlooked—rookie seasons by a pitcher, winning 22 games for the 5th-place Sox. By 1919, his arm was gone, facing just 2 batters all season, in a June loss to Boston, which ended his pitching career at a fine 80-59 mark. Soon after this final appearance, Russell went to the Double-A Minneapolis Millers and reinvented himself as an outfielder. He returned to the majors in 1922 and put in a pair of partial seasons for the Pirates, thwacking 21 home runs in 511 at-bats. TCMA’s goof lay in labeling him “Red” Russell. Born in postbellum Mississippi and raised in Texas, he was well known as “Reb” Russell for his obvious Southern heritage. Even so, mild kudos to TCMA for including in the set the member who played least on the roster during the season (there are a few White Sox who played more than Russell yet were not included).
  • 1954 Red Heart Stan Musial: Stan’s bio claims that he has played in “9 All Star games as a Cardinal outfielder.” Through the end of the 1953 campaign, Musial had played in 10 All-Star Games. Yet even if this statement is taken literally—that is, counting his participation only as an outfielder, regardless of how silly it would be for Red Heart to ignore his other appearances in the Midsummer Classic—Musial had, to that time, participated once as a first baseman and once as a pinch-hitter, so the count strictly as an outfielder was 8—which still did not jibe with Red Heart’s claim. It’s also interesting to note that Red Heart, as late as 1954, referred to the Fall Classic as the “World’s Series”—an antiquated spelling that had essentially died out by the 1930s.

And just for good measure, I’m throwing in several hockey card errors:

  • 1957-58 Topps Jean Guy Gendron (#52): Between this entry and the following one, you will see that Gendron appears to have been the target of a systematic process of sloppiness and inconsistency, the likes of which the sports card industry has never seen. In the English bio of this, Gendron’s rookie card, Topps heretically refers to the Montreal club as the “Canadians.” Frankly, Topps should consider itself lucky that Montreal fans didn’t fly into a bleu, blanc, et rage, bus down to Brooklyn, and burn the plant to the ground. Despite being Gendron’s official rookie card, this also establishes a long and winding road of instability concerning his first name. Gendron’s first name appears to officially have been spelled with a hyphen, “Jean-Guy,” as evidenced by several official sources as well as the back of his true rookie card, the 1952 Juniors Blue Tint. Yet from 1957 to 1963, Topps always denoted him simply as Guy Gendron (although, as you can see, the reverse of his rookie card is “Jean G.” Gendron). He then became “Jean Guy” on his 1968 card (shown for a different reason in the following entry), was amended to “Jean-Guy” in 1969, then was stripped of the hyphen in 1970 and 1971, and enjoyed a restored hyphen for his final card, in 1972. (Gendron’s 1970 Dad’s Cookies card and 1970 Esso stamp also feature the hyphen.)

  • 1968 OPC Jean Guy Gendron (#185): The statistical record claims that Gendron was “Not in N.H.L.” during the 1967-68 season. Although the long-time NHL veteran had been dispatched to the AHL’s Quebec Aces in 1964 and remained there for 4 seasons, Gendron did suit up for 1 game with the phledgling Philadelphia Flyers—even picking up an assist—during his final year with Quebec. (Gendron would go on to play 4 seasons with the Orange and Black, becoming one of the team’s best forwards in its early years.) Furthermore, though not an outright error, Gendron’s bio begins that he, Andre Lacroix, and Simon Nolet “are counted heavily on this year by Coach Courtney.” This is a strange reference to Philadelphia’s inaugural head coach, Keith Allen, whose given name was Courtney. I’m inclined to believe that OPC mistook “Courtney” as his surname, because it’s difficult to believe that OPC was on an overly casual first-name basis with the little-known skipper of a barely established expansion club.

  • 1979 OPC J. Bob Kelly (#306): This is likely well known to all except the young’uns. Rather obviously—at least it should be—the player depicted is not J. Bob Kelly—better known in rinks as “Battleship” Kelly—but long-time Broad Street Bully, Bob “the Hound” Kelly. (The pictured Bob Kelly has his own OPC and Topps cards that year; J. Bob Kelly has no Topps counterpart.) As an aside (though not an error itself), OPC denotes that Kelly was “Now with Oilers”; however, Kelly’s last skate in the NHL occurred during the previous season’s quarterfinals as the New York Islanders swept Kelly’s Chicago Black Hawks. Battleship did split 4 games between the Cincinnati Stingers and the Houston Apollos of the Central Hockey League during the 1979-80 season, but he never played for Edmonton, despite the Oilers drafting Kelly from Chicago in the 1979 NHL Expansion Draft.
  • 1969-70 Topps (#59) and OPC (#59) Carl Brewer: Perhaps it’s something of an honor to be incorrect in two countries, as both Topps and OPC were in listing Carl’s home of Muskegon, Michigan, which is misspelled as “Muskegan” on both cards.  
  • 1971-72 OPC (#156) and 1972-73 OPC (#100) Rogatien Vachon: Errors north of the border get a little more complex with this pair of Rogie Vachon cards. Each errantly refers to Vachon as “Roggie”—the first card twice in the bio and the latter card in the cartoon. OPC then wised up and never again made this misspelling (the reverse of Topps/OPC 1978-79 cards, which feature the player’s autograph, confirm the spelling in Vachon’s own hand, as if confirmation were needed). OPC dropped the puck a second time on his 1972-73 card, botching Vachon’s first name as “Ragatien.” (Topps got the spelling right but featured the same erroneous cartoon.) A former coworker who is a cousin of Vachon responded to my request for Rogie’s comments on this with, “Jesus, Randy, I’m busy. Leave me alone!”

Death and Taxes and Baseball Card Litigation [Part I]

A Very Brief History of the Right of Privacy

Although perhaps difficult to believe, individuals were once without legal recourse if their names or likenesses were used commercially without permission. The “right of privacy” was essentially without basis at common law in the United States before 1902. Emerging privacy rights, however, would eventually become a central battleground as trading card makers fought to secure the pocket change of (mostly) American boys after World War II. The resulting litigation would shape the baseball card industry and provide Topps with nearly unassailable baseball card dominance by the 1960s. The story starts, however, at the turn of the twentieth century with a teenaged girl’s surprising discovery in a Vermont tavern.

As an 18-year-old from Rochester, New York, Abigail Roberson visited an “out-of-the-way tavern” in Vermont while on vacation. There she discovered an advertisement for Franklin Mills flour prominently featuring her photograph. The shocking discovery made Roberson physically ill—Franklin Mills had used the photograph without her knowledge or consent and refused to disclose how they obtained the image.

Franklin Mills advertisement featuring photograph of Abigail Roberson

Roberson was humiliated by use of the photo (although admittedly flattering) and learned that some 25,000 copies of the advertisement had been distributed to stores, warehouses, saloons, and other public places. She sued to prevent the further distribution of the poster and asked for $15,000 in damages (approximately $475,0000 today). The trial court found in Roberson’s favor and the appellate division affirmed.

The case went up to New York’s highest court, however, where Chief Judge Alton Parker wrote for the 4-3 majority that Roberson had failed to state a cause of action because her complaint did not allege defendants acted maliciously or published a defamatory photo. They held that Franklin Mills was lawfully able to use Roberson’s photograph for its advertising without having to ask or compensate her.

Not surprisingly, a wave of public outrage followed Roberson’s loss. In the wake, the New York legislature enacted laws to codify the right of privacy, which allowed an aggrieved party to seek court intervention to enjoin use and sue for monetary damages if a photograph was used intentionally without consent. 

A Bat Fight: Hanna Manufacturing Company v. Hillerich & Bradsby Co.

The baseball world would first see a battle over privacy rights in 1935, when Louisville Slugger sued the Hanna Manufacturing Company alleging Hanna was infringing on its trademarks by selling bats bearing the names of players under exclusive contract to Louisville Slugger, such as Babe Ruth and Lou Gehrig.

The bats at issue retailed “for as much as $2.50 each” (approximately $28.00 today) and were bought by customers who were “careful and well-informed.” Louisville Slugger took pride in crafting bats of the size, shape, and balance that each major league player preferred and for a small (undisclosed) consideration, these players gave Louisville Slugger the exclusive right to use the player’s name, autograph, and photograph in connection with the sales of baseball bats for a lengthy term, typically 20 to 25 years. The contract signed by the players did not require them to use Louisville Slugger bats, however. In fact, Lou Gehrig had used Hanna bats for two years despite having signed with Louisville Slugger.

Hanna promotional material

Hanna countered that the bats it sold bearing the names of “Babe Ruth” and “Lou Gehrig” were not sold based on the player’s name having been stamped on the bat, but because the purchasers (often college teams) wanted bats of that player’s particular shape and style. The district court found for Louisville Slugger, “baseball players, like any other individuals, have a property right to their names that has been assigned by certain players to Louisville Slugger, and Louisville Slugger used and advertised such right and has such right exclusively, irrespective of any trademark or unfair competition law.”  

The appellate court reversed, however, remarking that there were some “interesting discussions as to a ‘right of privacy’” ongoing but that a “public man waives his right so that the public becomes entitled to his likeness.” The court continued, “fame is not merchandise. It would help neither sportsmanship nor business to uphold the sale of a famous name to the highest bidder as property.” [Wow is this shortsighted when viewed in the modern athlete endorsement landscape!]

The court was further convinced that the “name on the bat” was commonly understood to refer only to the model or style of the bat and implied no endorsement by the player. The court specifically ruled that Hanna could market bats bearing players’ names as long as the descriptive mark included the words “style” or “shape” conspicuously, such that a Hanna bat marked “Babe Ruth style” would be acceptable. Ultimately, those Louisville Slugger contracts operated only to prevent the ballplayers from objecting to Louisville Sluggers’ use of their names and likenesses.

“No matter what may be said about the habits and nature of ball players, they are not naïve.” It would not be long before “right of privacy” claims would invade the baseball card industry.

The Big Cat Takes a Swipe

On August 26, 1941, Johnny Mize went 4-for-8 with a double and home run as his Cardinals split a Tuesday doubleheader against the Dodgers at Ebbets Field in Brooklyn. That same day, Mize’s attorneys filed a right of privacy lawsuit against Gum Products, Inc. in Cambridge, Massachusetts alleging that it had used photos of Mize in its Double Play Gum baseball card set without his permission.

Double Play cards featuring Johnny Mize

In what appears to be the first baseball card-related lawsuit, Mize asked the court for a restraining order and damages commensurate with his appearance on some 140,000 cards issued by Gum Products. On September 5, the court issued a temporary injunction that prevented Gum Products from using Mize’s name or picture further in connection with the sale of gum. Mize’s “right of privacy” victory was short lived, however.

At a subsequent hearing on June 25, 1942, Gum Products admitted it had not directly obtained Mize’s permission, but had done so through the purchase of the picture from an agency. The defense also argued that as “a leading ballplayer of the country,” Mize had no right of privacy in connection to the publication of his name or photograph. On June 28, Judge Francis Good dismissed the case “without comment.” Despite their ultimate victory, Gum Products never produced another set of baseball trading cards.

Leaf: Blown Away

In 1949, Bowman Gum Company and a number of individual players, including Warren Spahn, sued Chicago-based Leaf Brands, Inc. and several east coast gum wholesalers for distributing cards featuring pictures of ballplayers under contract with Bowman. The lawsuit was filed in Philadelphia, where Bowman was based, and a friendly hometown judge issued a temporary restraining order that prohibited Leaf from selling cards with its gum anywhere in the United States (straining the bounds of enforceability). 

1949 Leaf cards of individual ballplayers who, along with Bowman sued Leaf

Leaf took the defeat seriously and reached a settlement with Bowman in which Leaf agreed to withdraw from the baseball card business until at least 1951. Leaf tried in vain to work out arrangements with Topps to share printing rights, but Topps was not interested.

Bowman v. Topps: Birth of the Right of Privacy

Topps first dipped its toe in the baseball card market with its Magic Cards release in 1948. The 19-card baseball series was part of a much larger modern Allen & Ginter-like set that also included cards of football players, boxers, movie stars, famous explorers, and dogs. The tiny cards (roughly 1” x 1½”) featured sepia-toned photos that would appear on the card when exposed to sunlight. The baseball checklist consisted of highlight cards from the 1948 Cleveland-Boston World Series and individual cards of Indians player/manager Lou Boudreau and Braves 3B Bob Elliott. The balance of the baseball checklist was comprised of retired greats such as Babe Ruth, Walter Johnson, Rogers Hornsby, and Joe Tinker/Johnny Evers.  

In 1951, Topps issued a set of baseball cards featuring current players in direct competition with Bowman, who had produced “Play Ball” sets from 1939-1941 and their own branded sets starting in 1948. To create their set (commonly referred to as “red backs”), Topps licensed rights to the players’ names, photos, and biographical information from a third-party company, Players Enterprises, Inc. This initial set of 52 cards was designed like a deck of cards and was intended to be played as a game. The cards were distributed in a rather nondescript box of “’Doubles’ Baseball Playing Cards” that identified Topps cryptically (and perhaps by design) only by “T.C.G. Brooklyn 32, N.Y.” on the bottom of the box and wrappers. When Players Enterprises merged with Russell Publishing Company in April 1951, Topps was given an additional stable of players under contract that allowed them to distribute a second series of 52 cards (“blue backs”) sold in a redesigned box as “Baseball Trading Card Candy.”

1951 Topps box and cards

Unhappy with the competition, Bowman sued Topps following their release of the red/blue back cards claiming trademark infringement, unfair competition, and impairment of contract rights. They sought to prevent Topps from selling any product having the appearance of gum with the word “baseball” connected to it.

Topps argued that they had lawfully obtained rights from Players Enterprises to use the names, pictures, and biographical data shown on the cards; denied there was any confusion with Bowman’s products; and  claimed that the contracts Topps had with the players constituted a waiver of the player’s right to privacy—but conveyed no rights on Bowman to sue Topps. Topps also argued that it had not infringed on Bowman’s contracts with players because it had inserted a caramel candy—not gum—with its cards.

The evidence established that Bowman had contracted with 340 baseball players through Art Flynn Associates for the right to use the name, signature, photograph, and descriptive biological sketch of each. In exchange, Bowman paid $100 and provided a wristwatch to each player for 1951. (The 1951 contract included the word “confections” for the first time, which seemingly presaged knowledge Topps was intending to issue a baseball card set with candy.) The players were also eligible to complete for the Jack Singer Annual Good Sportsmanship awards sponsored by Bowman.

Topps proved it had contracts with 248 active major league players through the rights acquired by Players Enterprises and Russell. These contracts gave Topps the right to use players’ names, pictures, and biographical data in connection with the sale of candy in 1951 and candy and chewing gum for 1952.

Following a bench trial, Judge Clarence Galston ruled in Topps’ favor and dismissed the case. He found it significant that there was no player biographical data on the reverse side of the 1951 Topps cards; the packaging between Bowman and Topps was different; and there was no record of any confusion between purchasers of the two products.

More importantly, the court (in reliance on § 51 of New York’s Civil Rights Law enacted in the wake of Roberson) held that the contracts Bowman made with the players conveyed no rights on Bowman to sue a third-party, such as Topps. Accordingly, only the individual ballplayer would have a cause of action for an injury to his person. No “right of privacy” was applicable to a business.  

Bowman v. Topps: The Appeal and Establishment of the “Right of Publicity”

Bowman took the matter up on appeal to the Second Circuit claiming their contracts were exclusive for use in connection with the sale of gum and that Topps deliberately induced the ballplayers to sign contracts giving Topps the same rights. Topps continued to argue that even if Bowman proved its case, there was no actionable wrong because any contract between Bowman and a ballplayer did not convey any right on Bowman to enforce those rights as to third parties.

Just prior to the start of the 1953 season, the appellate court formally established the “right of publicity” by way of recognizing an enforceable property right in each player’s name and likeness. This was huge. Accordingly, the ballplayers could grant exclusive rights to their pictures that could be enforced by third parties, such as Bowman. “For it is common knowledge that many prominent persons (especially actors and ballplayers), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.” That the appellate court recognized the right of publicity was an unprecedented hallmark for ballplayers’ ability to control (and cash in) on their names and likenesses.

The case was sent back to Judge Galston to determine  if Topps had knowingly used photographs of players under contract with Bowman. This was a complicated case-by-case task in that up to six separate contracts were now at issue for players who appeared in any of the 1951, 1952 and 1953 sets issued by Bowman and Topps.

Billy Pierce was 1 of just 24 players to appear in each set issued by Bowman and Topps 1951-1953

By May 1953, both Topps and Bowman had continued to issue sets of fluctuating sizes as their competition to ink players to contracts intensified. In fact, Topps pulled six cards from its 1953 set due to the ongoing litigation. The court also required Topps to remove the cards of players it was enjoined from using from stacks of cards printed but not yet wrapped, which allowed Topps to distribute any offending cards that had already been packaged. (Unfortunately, identification of these particular cards is not immediately discernable from the published decision.)

Bowman v. Topps: The Aftermath

The litigation continued, however, and on May 10, 1955 Judge Galston remanded the case to the New York state courts. This litigation was expensive for Bowman, which spent in excess of $110,000 in legal fees ($1.12 million today); it cost Topps only slightly less. Bowman had been losing money each year since 1952, culminating with a net loss in 1954 of $224,000 (approximately $2.3 million today).

In April 1955, Bowman was merged into cardboard box manufacturer Connelly Container Corporation. Connelly’s stewardship of the Bowman gum and trading card brand was fleeting, however, as it looked to shed the gum/baseball card line, which had averaged between 15% to 30% of total sales. On January 20, 1956, Topps settled the litigation with Connelly by acquiring Bowman’s gum-producing facilities, baseball player picture rights, and an agreement on the part of Connelly not to manufacture gum or picture card products for five years in exchange for $200,000 (approximately $2 million today). [Connelly was apparently much more interested in Bowman’s other business pursuits at the time of the merger, including an all-nylon squeeze bottle in development.]

All the while, Leaf wanted to get back into the baseball card business. After the Bowman litigation settled, Leaf again approached Topps with a proposal to share player rights. With main competitor Bowman eliminated, Topps had no interest in making any arrangement with Leaf. In fact, Topps sent a letter to the player representative of each ballclub on August 14, 1956, indicating it was not going to be sharing its baseball card picture rights with any other companies.

By 1959, Topps was the largest manufacturer of bubblegum in the United States with total sales of $14 million annually (approximately $133 million today). Leaf would eventually get back into the baseball card business in 1960 when it produced a black and white 144-card set that was sold with marbles.

Fleer Stirs the Pot

At the end of 1958, the Frank H. Fleer Corporation launched an offensive against Topps for control of the baseball card market by offering ballplayers contracts that would become effective upon the expiration any existing contracts with Topps. This started with a mail solicitation in December and followed up with visits at training camps in 1959 by ten of its sales and marketing personnel. Fleer was even able to enlist representatives who were active players on teams such as Charlie Lau and Chuck Cottier.

The Fleer contracts paid players $5 as initial consideration and $125 upon reaching the major leagues. Further, Fleer offered a monetary gift or reward for players who provided Fleer with copies of their Topps contracts. After learning of this practice, Topps stopped sending copies of its contracts to the players (but would provide information regarding the terms of the contract upon request). Topps was flooded with requests once they started offering $75 for the players to sign extensions.

Fleer successfully lured Ted Williams and produced an 80-card set of the mercurial slugger in 1959. The Williams set accounted for $250,000 in sales (approximately $2.4 million today), which was just a fraction of the $3.8 million (approximately $36 million today) worth of Topps baseball cards sold in 1959.

During the 1960 and 1961 seasons, Fleer issued sets featuring “Baseball Greats,” each of which featured Ted Williams and a cast of retired Hall of Famers and stars. Sales of these sets again paled in comparison to Topps’ baseball offerings. Leaf also issued a small set of current player cards in 1960, sold along with marbles. The 1960 Leaf contract paid the players $50 and provided for rights when distributed in combination with “marbles or other non-edible novelties such as charms made of plastic or metal.”

Fleer cards from 1959 Ted Williams set and 1961 Baseball Greats set

The Federal Trade Commission filed a complaint against Topps on January 30, 1962—with Fleer’s enthusiastic support—alleging that Topps violated § 5 of the Federal Trade Commission Act, which made illegal “unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.” This section also outlawed business practices that were “unscrupulous, oppressive, exploitative, or otherwise indefensible.” The FTC alleged further that Topps created a monopoly in the manufacture and distribution of baseball picture cards “contrary to public policy” and “to the detriment of free and open competition.” The Hearing Examiner made sure to emphasize that “[m]onopoly is condemned without qualification,” somewhat ironic considering that Major League Baseball enjoys the protections of a legally sanctioned monopoly.  

At the heart of the complaint was the allegation Topps had completely foreclosed Fleer from the baseball card market by entering exclusive contracts with almost all major league baseball players and practically all minor league players with major league potential. It was further alleged that Topps had the power to impose tie-in requirements and imposed retail price control on vendors because it “wanted to know about anybody who was not selling the cards at six for a nickel.” On the heels of the FTC filing, Fleer bombarded college coaches with correspondence attacking Topps’ contracts and accusing Topps of monopolistic practices that were under investigation by the FTC.

Page 1 of the 98-page FTC decision

Taking a page from their prior battle with Bowman, Topps began drafting their contracts to give themselves broader rights and further restrict the players from contracting with others. In 1957, the Topps contract gave exclusive rights to cards associated with gum and candy; in 1958, Topps added “confections” to the list; in 1959, the Topps’ contract extended to cards sold without gum in bulk vending boxes (despite the fact that vending boxes were an exceedingly small part of its total sales); and in 1960, the Topps contract included an agreement by the player not to enter into any other contracts while under contract with Topps. By May 1961, Fleer had contracted with only five major league ballplayers who had not contracted with Topps.

At the time the FTC got involved, Topps had exclusive rights with 95% of major league baseball players and contracts with more than 6500 ballplayers in both the major leagues in minor leagues. Topps first approached players in the minor leagues with a payment of $5 to sign a contract that would pay the player $125 per year for five years if he were promoted to Major League Baseball. Those players who reached the big leagues were paid regardless of whether Topps issued a card of the individual. (Topps would not have to pay if it decided not to market a complete series of cards, except they had to pay the Yankees either way.) Topps’ network included “agents” such as scouts, managers and players who were compensated as much as $100 a year, plus five dollars for each ballplayer signed, or other “gifts, tips or small payments” upon delivery of signed contracts.

Fleer claimed their representatives were physically excluded or intimidated from soliciting players at the Los Angeles Dodgers’ and Detroit Tigers’ training camps “by goon or similar methods.” In the face of Topps’ established network, Fleer had signed only 20 major league players by 1962 and 27 by 1963. Undeterred, Fleer issued a 66-card set (plus an unnumbered checklist) of active major league players in 1963, dwarfed by the 576-card set issued by Topps that year.

The FTC hearing examiner also considered evidence that Topps actively sought to impose market restrictions on other food and beverage manufacturers who used baseball picture cards as promotional devices. General Foods included baseball cards on packages of Post Cereal from 1961 to 1963 and Jell-O from 1962 to 1963. Topps took issue with the Post Cereal promotion that offered a sheet of ten cards (not attached to a cereal box) for two box tops and ten cents, alleging this was an infringement on their rights to sell cards individually. Topps subsequently entered into agreement that Post would pay a license and royalty fees in connection with its distribution of cards alone under the offer. Topps also objected to the set issued in 1958 by Hires Root Beer. Ultimately, Hires made a deal that allowed them to use photos of the players without having to pay Topps, but never issued another set.

The Topps “Monopoly”

Generally speaking, a monopoly is the control of “an economically meaningful market.” In the FTC matter, all that needed to be established was that baseball cards were economically meaningful, and that Topps controlled the market. There was no need to establish that Topps intended to monopolize; nor was it necessary to show Topps exercised its monopoly power.

Hearing Examiner Herman Tocker issued his initial decision on August 7, 1964, after a full evidentiary hearing. He found that Topps had “monopolized the sale of current baseball card picture cards both as separate articles of commerce and as a promotional device for the sale of confectionery products,” in violation of § 5 of the Federal Trade Commission act—even though Topps’ exclusive contracts and other practices were not unfair when viewed separately. Although it had not actually done so, Topps could have controlled the baseball trading card market and “had the power to increase or decrease at will the price when sold alone or when in packages of gum and cards.” Tocker found further that Topps was in violation of § 2 of the Sherman Antitrust Act—a misdemeanor punishable by a fine up to $50,000 or imprisonment.

Topps was ordered to cease and desist from entering or extending exclusive contacts with ballplayers, coaches, and managers for terms in excess of two years and enforcing any contracts in effect after October 31, 1966, along with an order to provide copies of the contracts to the ballplayers. Tocker also opined “[o]bviously, a single picture card, in and of itself, has little value” and “last year’s cards without current statistical content are about as valuable as yesterday’s newspaper,” observations that have not aged well.

The FTC Appeal

Both sides appealed the Hearing Examiner’s decision and order. FTC Commissioner Philip Elman thoroughly reviewed the evidence on record and reversed, holding Topps did not have a monopoly in the production of baseball cards because they lacked economic significance and alone were not “meaningful in terms of trade realities.”

Elman specifically decided that Topps’ control over baseball picture cards used to promote confectioneries was not detrimental to fair competition and that baseball cards were not so unique and indispensable a promotional technique that other bubblegum manufacturers could not compete on fair and equal terms with Topps. Elman cited several examples of successful promotional trading card series such as football players, retired baseball players, and non-sport sets featuring the Beatles and “Spook Theatre.” Moreover, but for the fact that Topps was the largest seller of bubblegum, there was no proof of any correlation between its superior market share and the sale of baseball picture cards.

Ultimately, Topps’ business model—tirelessly signing as many minor-league players as possible with hopes they would become big leaguers—was not an unfair or monopolistic practice. Because no monopoly was proven, the complaint was dismissed on appeal.

Fleer in the late 1960s

Despite its failure to break Topps’ hold over “current baseball picture cards,” Fleer remained the second largest manufacturer of bubblegum in the United States. Before the 1966 season started, Fleer announced it would be issuing a 66-card set dedicated to Dodgers pitcher Don Drysdale and had a representative, Bob Quinn, continuing to visit Florida training camps looking to sign players to contracts.

The “Drysdale set” Fleer issued in 1966, however, was actually the “All Star Match Baseball” game, with each of the game cards including a black and white puzzle piece of Drysdale on the reverse, such that all 66 cards were necessary to complete the puzzle.

1966 Fleer All Star Match card F35 (front/back) and wrapper

Fleer had also tried to get the jump on Topps by sending contracts and $25 checks to all players chosen in the newly implemented draft, which upset some college coaches who feared their players could jeopardize their amateur status by cashing those checks.

Despite Fleer’s continued efforts to erode Topps’ market stranglehold, Fleer ultimately acquiesced and subsequently sold all of its baseball contracts to Topps in 1966 for $385,000 (approximately $3.4 million today). This would not be the last we would hear from Fleer at the courthouse, however.

To be continued…

SOURCES/NOTES:

Websites

www.baseball-reference.com

www.retrosheet.org

www.tcdb.com

Cases

  • Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 541, 64 N. E. 442 (N.Y. 1902). This right of privacy is generally attributed to this article in the 1890 Harvard Law Journal by Samuel Warren and Louis Brandeis.
  • Federal Base Ball Club of Baltimore v. National League of Professional Base Ball Clubs, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, 26 A.L.R. 357 (1922). Major League Baseball has a legal monopoly, “[t]he business is giving exhibitions of baseball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business.”
  • Hanna Mfg. Co. v. Hillerich & Bradsby Co., 101 A.L.R. 484, 78 F.2d 763 (5th Cir. 1935). Defendant Hillerich & Bradsby Co. will be referred to as “Louisville Slugger,” its more widely used tradename today.
  • Bowman Gum, Inc. v. Topps Chewing Gum, Inc. 103 F. Supp. 944 (E.D.N.Y. 1952). Topps also issued 9-card set of team photos in 1951 (Boston Red Sox, Brooklyn Dodgers, Chicago White Sox, Cincinnati Reds, New York Giants, Philadelphia Athletics, Philadelphia Phillies, St. Louis Cardinals, Washington Senators) and Major League All-Stars/Connie Mack All-Stars. These sets do not appear to have been subject of the litigation between Topps and Bowman.
  • Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2nd Cir. 1953). In April 1952, Bowman Gum shareholders approved the change of the company name to Haelan Laboratories. Philadelphia Inquirer, April 9, 1952: 4. Accordingly, the ensuing litigation lists Haelan—and not Bowman—as a party.
  • Haelan Laboratories v. Topps Chewing Gum Co., 112 F.Supp. 904 (E.D.N.Y. 1953)
  • Haelan Laboratories v. Topps Chewing Gum, 131 F. Supp. 262 (E.D.N.Y. 1955).
  • In re Topps Chewing Gum, Inc. 67 F.T.C. 744 (1965). Baseball card sales in 1960: Topps $3,638,000 (approx. $34 million today), Fleer $300,000 (approx. $2.8 million today), and Leaf $100,000 (approx. $934,000 today); in 1961: Topps $3,475,000 (approx. $32 million today) and Fleer $355,506 (approx. $3.3 million today).  The second series of Fleer’s 1961 Baseball Greats accounted for an additional $85,000 in sales (approx. $778,000 today) for 1962.  Though distributed under the company name “Sports Novelties Inc.,” the 1960 Leaf issue is referred to in the hobby as “Leaf” and is referred to similarly herein. The FTC hearing examiner described the Beatles as “a group of singing troubadours imported from England”. Additionally, for football cards, the contract was made with the league and not the individual players. The players received no direct compensation—all money was channeled to league pension funds.

Articles

  • “The Week in a Busy World,” Atlanta Constitution, May 5, 1901: 42.
  • “Chewing Gum Stuck with Suit by Mize,” Daily News (New York), August 27, 1941: 284.
  • “Johnny Mize Asks Damages from Cambridge Gum Firm,” Boston Globe, June 25, 1942: 11. Mize appeared on two cards in the set: Nos. 39/40 with Enos Slaughter and Nos. 99/100 with Dan Litwhiler. It is unclear how many of each comprised the total.
  • “Mize of Cardinals Wins Court Test on Use of Name,” Boston Globe, September 5, 1941: 23.
  • “Mize Suit Against Gum Firm Dismissed,” Des Moines Register, June 28, 1942: 16.
  • “Spahn, Five Others Take Action in Gum Distribution Controversy, Boston Globe, May 4, 1949: 23. Although this case attracted little press, that Warren Spahn was involved is not surprising based on the battle he would have in the future regarding the publication of the “Warren Spahn Story,” which he contended painted him in a false (but positive) light and was published without his consent.
  • “A’s Stars Get Writ to Bar Use of Pictures on Gum,” Philadelphia Inquirer, May 7, 1949: 16.
  • “Haelan Merged into Connelly,” Philadelphia Inquirer, April 28, 1955: 30.
  • Bob Rathgeber, “Young Bob Quinn: Bubble Gum Exec,” Bradenton (Florida) Herald, March 17, 1966: 14.
  • Wayne Shufelt, “’Gummed’ Up,” Tampa Times, April 2, 1966: 10.
  • Paul Bedard, “Bubble May Burst in Baseball Card Suit,” Washington Post, June 20, 1979.
  • Rich Mueller, “1953 Topps Missing Numbers Revealed,” Sports Collectors Daily, July 29, 2014, https://www.sportscollectorsdaily.com/1953-topps-missing-numbers-revealed/, last accessed December 3, 2021. Numbers 253, 261, 267, 268, 271 and 275 were reportedly supposed to be cards for Joe Tipton, Ken Wood, Hoot Evers, Harry Brecheen, Billy Cox, and Pete Castiglione.

Special Thanks

Special thanks to Jason Schwartz for reviewing this article and offering many helpful suggestions.


Cardboard Famous

A reply to a recent SABR Baseball Cards social media post led me to think about the baseball players more famous for their baseball cards than for any of their on or off the field exploits. Here are ten who I believe fit the bill.

BILLY RIPKEN

Ripken lasted twelve years in the big leagues as an infielder, including an all-star caliber season in 1990. Today he is a frequent co-host on MLB Network. His brother is baseball’s ultimate Iron Man and one of the greatest shortstops in history. And still, say the name Billy Ripken and card collectors think only of one thing: his 1989 Fleer F*ck Face card.

BUMP WILLS

His career on the diamond lasted only half as long as Billy Ripken’s but he spent six years as the regular second baseman for the Rangers and Cubs, topping 30 steals four times while batting a respectable .266. Like Ripken, baseball also ran in his family. Of course any kid who collected baseball cards in 1979 will know him best for this seemingly impossible cardboard trickery.

BRANDON PUFFER AND JUNG BONG

Puffer played four years in the big leagues, appearing in 85 games for the Astros, Padres, and Giants. Jung Bong played one fewer season, appearing in 48 games for the Braves and Reds. The two pitchers combined for a WAR of -1.2. Though never teammates, the duo shared Future Stars cardboard in the 2003 Topps set on card #331, known to collectors (and chronicled by David Roth) as the “Bong Puffer card.”

OSCAR GAMBLE

Legitimately one of the best hitters of his time, scouted by the legendary Buck O’Neil, and the man behind the classic line, “They don’t think it be like it is, but it do,” Oscar Gamble would be remembered fondly even if he had no baseball cards at all. Fortunately that’s a hypothetical we need not ponder long when this pure cardboard gold is right in front of us.

SHERRY MAGEE AND JOE DOYLE

Magee built a borderline Hall of Fame career from 1904-1919 that included more than 2000 hits, four RBI titles, and 59.4 WAR. Even with those credentials I suspect many readers can only hazard a guess whether his name is pronounced Maggie, McGee, or Madgee.

Doyle, on the other hand, had a completely undistinguished career, seeing limited action on the mound over five seasons at roughly replacement level.

Whatever their on-field exploits, each of these players will forever be cardboard legends, with their error cards comprising half of the T206 set’s “Big Four.”

BENNY BENGOUGH AND ANDY PAKFO

Bengough was a career backup catcher who compiled 0.3 WAR over his ten seasons in the big leagues. When the 1933 Goudey set came out, he was already out of baseball.

Pafko, on the other hand, was a four-time all-star who batted .285 over 13 seasons with a career OPS+ of 117. His 1952 season (.287/19/85) was uncannily similar to his lifetime per 162 slash line of .285/19/85, and his midseason move from the Cubs to the Dodgers the prior year was one of the season’s biggest trades.

While neither player would top any list of all-time greats, each player topped many stacks of baseball cards, thanks to being numbered one in the 1933 Goudey and 1952 Topps sets respectively. Until the Upper Deck Ken Griffey, Jr., rookie card came along in 1989, I suspect these two players were the Hobby’s most famous set starters. Certainly both cards, in reasonable shape, carried a premium comparable to lesser Hall of Famers due to rubber banding, spills, and the myriad other ways stack toppers suffered disproportionate damage in collections prior to the advent of plastic sheets.

HONUS WAGNER

I’ll end the article with what may be my most contentious selection. Without a doubt, Wagner is a top shelf baseball immortal, considered by many to be the greatest shortstop of all-time if not the single greatest player of the Deadball Era. (In both cases, Pop Lloyd deserves consideration as well.) To an audience well versed in baseball history, therefore, Wagner is most famous for his tremendous playing career, even if most fans still pronounce his name wrong.

Yet whatever his accomplishments on the diamond, I suspect the Flying Dutchman is best known today, whether in the collecting world or the general public, for a single, transcendently pricey cardboard rectangle, our Hobby’s Mona Lisa.

Who else would you nominate for this elite club where ERR trumps WAR and even backup catchers can be number one? Sound off in the Comments!

“9th Inning”

I started this amazing project last September. The first purchase was a Billy Parker card on 9/2/20, and on 7/8/21 I found the Larry Doby card I wanted to complete it all. I had so much fun assembling this mix of well known cards, as well as some I never knew existed.

Sixteen players out of the 86 did not have an MLB card produced, which made things very interesting. I had to dig for autographs, Minor League cards, original photos, and even game cards. The back stories of these great players were so interesting: the journey, the struggle, the closed doors eventually pushed wide open.

I learned so much about the players and their families, the Negro League and its origins. I’m a bit bummed it has come to an end but happy I was able to share it with all of you. Thanks to SABR Baseball Cards and the whole SABR team for giving me their platform to share it. So here we go, it’s the bottom of 9th, time for a walk-off!

George Crowe 1953 Topps. As you know I love the ’53 Topps set. So ahead of its time. Big George with the frames as a member of the Boston Braves. Crowe was an outstanding basketball player, and enjoyed the game better than baseball. He was smart enough to know there was more money in baseball back then. In 1947 he joined the New York Black Yankees where he hit .305 in 141 at bats. In ’52 he made his debut with the Braves. He played 11 years in MLB, in ’57 he had his best season smashing 31 dingers along with 92 ribbies for Cincinnati.

🐐fact: “Crowe was the most articulate and far-sighted Negro then in the majors. Young Negroes turned to him for advice.” – Jackie Robinson

Joe Black 2001 Fleer Stitches in Time Autograph. Figured I would go the auto route with Joe, it’s a super clean signature, and a card I have never seen before. Black pitched for 3 MLB teams over 6 years. His best season was his rookie year playing with the Brooklyn Dodgers. He finished 41 games, sported a 15-4 record with a 2.15 era, 15 saves, and took home NL ROY as a 28 year-old. Joe played for the Baltimore Elite Giants of the Negro League.

🐐fact: Along with Jackie Robinson, Joe pushed for a pension plan for Negro League players. After his retirement from baseball, he remained affiliated with the Commissioner’s Office where he consulted players about career choices.

Quincy Trouppe 1978 Laughlin BVG 8.5. This card was from a set of 36 cards by sport artist R.G. Laughlin honoring outstanding black players from the past. Quincy was one of the players in this project who was never featured on a MLB card. He only appeared in 6 games with Cleveland as a 39 year-old. That was his MLB career, but Quincy was a legend in the Negro Leagues! He was a big switch-hitting catcher, 6′ 2″ and 225 pounds. Excelled as a player, manager, and scout. Trouppe was a baseball lifer who did many great things for the game.

🐐fact: In 1977 Quincy self-published a book entitled, “20 Years Too Soon”. He also had a vast collection of photographs, and supplied Ken Burns with most of the Negro League video footage for his legendary documentary.

Hector Rodriguez 1953 Bowman RC. Hector played one year for the Chicago White Sox in 1952. He was a natural shortstop, and a native of Cuba. A member of the New York Cubans in the Negro League. Even though he only played a short time in MLB, he was a fixture in the International League for the Toronto Maple Leafs. As you can see on this awesome Bowman card with Yankee Stadium in the background, he’s about to sling that ball sidearm. He was known for his underhand flip throws from deep in the hole just like someone I enjoyed watching growing up, Tony Fernandez.

🐐fact: Hector sported a great eye at the plate. In 1952 with the White Sox, he struck out only 22 times in 462 plate appearances!

Frank Barnes 1960 Topps RC. This is a really sharp card, not centered well, but great condition. Barnes played in 1957, 1958 and 1960 for the Cardinals, he pitched in only 15 career MLB games. If you notice, Frank is a member of the White Sox on his baseball card, but he would never appear in a game for them. Barnes played for the Kansas City Monarchs, he was later sold to the Yankees along with Elston Howard.

🐐fact: Barnes continued to pitch professionally in the minor leagues and Mexico until age 40 in 1967.

Joe Durham 1958 Topps PSA 7 RC. Joe had his first taste of the big leagues in 1954 as a 22 year-old OF with the Baltimore Orioles. He missed the ’55 and ’56 seasons due to military service. He returned to the O’s in ’57, then finished his career with the Cards in ’59. Durham started his professional career with the Chicago American Giants of the Negro League. After his playing career was over he became the O’s batting practice pitcher, and then moved into the front office. He was a member of the Orioles organization for over 40 years.

🐐fact: “I was in the Negro American League because I couldn’t play in anything else. People talk about racism in Mississippi and Alabama. Mississippi was bad, and Alabama was bad, but Chicago was just as bad as any of them.” – Joe Durham.

George Altman 1958 Topps RC / 1964 Topps Autograph. This is a really crisp rookie card, obviously not centered well, but an overall nice card. The Altman autograph came from Ryans Vintage Cards, a really cool Instagram account that sells random vintage cards in re-packs. George played 9 years in MLB as an OF and 1B. He was a 2x All-Star with the Cubs. In ’61 he led the league with 12 triples, batting .303 with 27 HR and 96 RBI. He started his pro ball with the Kansas City Monarchs, mentored by the great Buck O’Neil who taught him how to play 1B. The Cubs signed George, as well as Lou Johnson and J.C. Hartman all from Buck’s word.

🐐fact: After his time in MLB, Altman went on to play ball in Japan, amassing 205 HR until he retired at the age of 42.

Lino Donoso 1956 Topps Pirates Team Card. Donoso was one of the toughest players to find anything on. It took me months to realize he was on the Pirates ’56 team card. It’s Clemente’s second year, so it’s not a cheap card even in poor condition. Lino was a lefty pitcher, a Cuban native who started his professional career in 1947 with the New York Cubans of the Negro National League. He made his MLB debut in 1955, and played a few games for Pittsburgh in ’56 as well. He had a long career in the Mexican League, and was elected to their Hall of Fame in 1988.

🐐fact: Donoso was a teammate of Minnie Miñoso for the New York Cubans in ’47. He sported a 5-2 2.18 ERA as a 24 year-old.

Editor’s Note: You can enjoy the rest of this series right here on the SABR Baseball Cards blog.

The Ted Williams code

Three of my great loves in the Hobby—Fleer, Ted Williams, and crazy number patterns—all come together in the 1959 Fleer Ted Williams set, 80 cards that chronicle the life and times of the Splendid Splinter, both on and off the field.

The set’s cards are refreshingly affordable with the exception of card 68 in the set, “Ted Signs for 1959,” which was pulled due to its inclusion of Bucky Harris, for whom Fleer did not have rights. Because this single card (in like condition) is typically priced higher than the rest of the set combined, many collectors opt to settle for a “79/80” set and call it a day.

Something I’d wondered about but never researched was how Fleer’s production process changed once it became necessary to pull card 68. There seemed to be two strategies available:

  • Continue printing all 80 cards but remove card 68 prior to collation into packs.
  • Omit card 68 from all subsequent printing

The first of these approaches seemed bulky, though perhaps not unprecedented. (Goudey may have done similar in 1934 with its Lajoie card.)

1934 Goudey series four uncut sheet

The second of these approaches seemed much easier. Fleer could simply replace card 68 on its printing sheet with any other card from the set. While this would create a “double-print,” a card twice as numerous as others due to its dual placement on printing sheets, it would also, at least presumably, save Fleer all kinds of work.

Again, there was precedent in an older Goudey set, though it’s unknown to collectors whether Goudey doubled up on its Ruth 144 (second row, third and sixth cards) in 1933 to replace another card or simply to print more Ruth cards. (I’m probably in the minority who would vote for the former.)

1933 Goudey series six uncut sheet

I hoped to settle the question by finding an uncut sheet with a double-print. Instead, I stumbled upon this sheet that recently sold on eBay. No double-prints, but right there in the lower left corner was card 68!

The presence of card 68 on the sheet suggested one of two possibilities:

  • Fleer continued to print card 68, even if it meant having to pull it over and over before collating cards into packs.
  • The sheet pre-dated Fleer’s decision to pull card 68.

I won’t settle that question in this article, partly because I don’t think the answer is knowable but mostly because I’m so easily distracted by oddball numbering patterns.

Here are the card numbers from the back of the sheet.

One simple pattern and two less simple ones are evident.

  • The numbers decrease by two in going from the first to the second column.
  • The numbers increase by 13 or 15 in going from the second to the third column.
  • The numbers increase by 15 or 17 in going from one row to the next.

The first of these patterns suggested a way to extend the table to the left and right, stopping once a new column would generate repeated numbers. Here was the result.

Two small changes I’ll now introduce are the letters A-P to label the table’s sixteen columns and a vertical divider line between column H and column I to mark the break in the pattern. If nothing else, this table suggests a nomenclature for the original sheet: GHI.

In truth, all columns except GHI are hypothetical at this point, but you can imagine I’d hardly be writing this up if there wasn’t something more happening.

For example, here is another sheet, which corresponds exactly to columns KLM in the table.

And here are two 20-card sheets, corresponding exactly to ABCD and DEFG.

In other words, the hypothetical extension of the numbering scheme does reflect something real. Having now seen ABCD, DEFG, GHI, and KLM, can we find sheets with that include J, N, O, and P to complete our set?

Definitely! Here are two different sheets, HIJ and JKL, that include column J.

Finally, here is NOP to round things out.

You might wonder if all sheets from the Ted Williams set match the table as nicely as the ones I’ve shown. From what I can tell the answer is yes. You may also be familiar with the occasional 6-card panel that appears from time to time. Sure enough, even these panels have a home in the table.

Recognizing the wide, if not universal, applicability of the numbering scheme to the set, it’s fair to wonder where such a scheme could have come from. I won’t pretend that the information below reflects any intentional thinking from Fleer or their printing house, but I’ll nonetheless offer a simple three-step algorithm that generates the entire table and demystifies it in so doing.

STEP ONE: Start with the numbers from 1-80, arranged in a 16 x 5 table.

STEP TWO: Subdivide each row into its odd and even components.

STEP THREE: Rebuild the 16 x 5 table by adding the rows from the above table in a serpentine pattern.

In other words, however complicated the “Ted Williams code” might look, it is simply the result of arranging eight straightforward “strips” of cards in a relatively straightforward manner.

HOW WERE THE CARDS PRINTED?

When I first stumbled upon the sheet of 15 cards I was surprised not only by the presence of card 68 but also the number of cards on the sheet. After all, the only ways to get to 80 cards, fifteen at a time, seemed to involve excessive double-prints. For example, six sheets of 15 will get you the set but introduce 10 double-prints along the way.

It was comforting then to discover a 20-card sheet since it opened the door to two seemingly more likely possibilities.

  • The set was produced in four sheets of 20 cards, with any 15-card sheets (or smaller panels) being trimmed afterward from larger sheets.
  • The set was produced using four sheets of 15 and one sheet of 20.

Let’s start with the first of these. Taking a look at the top edge of KLM from earlier, it feels safe to conclude that this sheet used to be at least a little larger. What’s inconclusive is whether only the border was cut off or if there used to be a fourth row of cards. In other words, we don’t know if we are looking at 99% of KLM or three-fourths of KLMN.

These next two 15-card sheets, both NOP, don’t show any evident trimming through each has thin enough edge that it’s fair to wonder if they simply reflect a much cleaner cutting job than in the previous example. If trimmed from 20-card sheets, the first would have come from MNOP, but the second presents a challenge to my numbering scheme, which doesn’t anticipate any columns after “P.”

Still, let’s assume all 15-card sheets in existence came from 20-card sheets. The simplest configuration would be ABCD, EFGH, IJKL, and MNOP shown below. Any departure would either require more than four sheets (and introduce significant double-printing) or conflict with the numbering scheme that has so far been consistent with all known examples.

Yet having already seen sheet DEFG, we know this was not how the cards were printed! Therefore, at least based on the sheets known to exist, I think we’re back to schemes involving combinations of 15 and 20 card sheets.

Assuming the cards were printed as four sheets of 15 and one sheet of 20, there are only five ways to do this that don’t leave stray remnants of 5 or 10 cards.

Here are the five solutions, represented in list form.

  • ABCD-EFG-HIJ-KLM-NOP
  • ABC-DEFG-HIJ-KLM-NOP
  • ABC-DEF-GHIJ-KLM-NOP
  • ABC-DEF-GHI-JKLM-NOP
  • ABC-DEF-GHI-JKL-MNOP

While the typical question to ask would be which one did Fleer use, the existence of ABCD and DEFG tell us the answer would have to be at least the first two solutions. Additionally, the existence of JKL, unique to the final entry on the list, adds a third solution to our solution set.

Okay, but isn’t this a rather crazy way to produce the cards? YES! But when I compare the known data (shown in red) with the sheets predicted by such a scheme, I have to admit the coverage is pretty strong: 9 out of 13.

  • ABCD-EFG-HIJKLMNOP
  • ABCDEFGHIJKLMNOP
  • ABCDEF-GHIJ-KLMNOP
  • ABCDEFGHIJKLM-NOP
  • ABCDEFGHIJKL-MNOP

Just as compelling to me are the sheets such an approach predicts would not exist:

  • Impossible 15 card sheets: BCD, CDE, FGH, IJK, LMN, MNO
  • Impossible 20 card sheets: BCDE, CDEF, EFGH, FGHI, HIJK, IJKL, KLMN, LMNO

Sure enough, none of these fourteen sheets are currently known.

My takeaway, therefore, is that Fleer most likely used combinations of 15 and 20-card sheets to produce the set and hardly adopted the simplest possible approach. Rather, of the five sensible solutions available, Fleer at various times or locations used at least three and potentially all five of them!

Admittedly, my entire chain of reasoning draws from a rather small sample size: eleven different sheets (and some duplicates) in all. A CDEF discovered in the wild is all it would take to derail half this article, and a CDEG in the wild would derail the entire article. Meanwhile, EFG, GHIJ, JKLM, or MNOP would lend even greater support to my hypothesis. As such, I hope you’ll let me know in the comments if you’re aware of sheets I’ve overlooked in my research.

Either way, can we at least agree that Ted Williams was the best &@#%! hitter who ever lived? Great! Now can anyone help me crack the code to find out what &@#%! means?

Player Collection Spotlight: Representing the 772 (or 561 or 407 or 305)

Our collecting habits are almost certainly influenced by time and place, and my own certainly are. The players I collect were primarily active in the 1980s and 1990s, the team I collect was on top of the baseball world in 1986 with their spring training site moving about two miles away from my house, and, with my formative collecting years being the late 1980s and early 1990s, I find having a single card producing company with a full MLB license maddening.

At some point, probably in the early 2000s, I began collecting “cards” of players from the area in which I grew up. “Cards” is in parentheses because I have other items of the non-card variety, including Starting Lineup figures for the few who had them as well as other assorted card-like items. While the definition of a card varies by individual, my own definition of a “card” is broad.

Port St. Lucie was small when I lived there – the title of the post shows how much the area codes changed due to population growth over the span of about 15 years. There was not actually a high school in the city of Port St. Lucie until 1989 (I was in the second class that could possibly have attended the school all four years) – so I branched out a little into the rest of St. Lucie County as well as neighboring Martin and Indian River counties. But despite its size there were a few players who made it to the show.

The most famous player from the area is almost certainly Rick Ankiel. A highly touted pitching prospect who likely would have gone higher in the draft if he didn’t have Scott Boras as his agent, he finished second in Rookie of the Year voting to Rafael Furcal then proceeded to struggle with control against the Braves and Mets in the playoffs. He of course made it back to the majors as an outfielder, which, according to his book, may not have happened had he not had Boras as his agent. It’s that story which likely elevates him to the most famous player from the area.

Charles Johnson went to Fort Pierce Westwood and was drafted in the first round twice – once out of high school and once out of the University of Miami. I believe his dad was the baseball coach at Westwood for many years. He is probably the best player (at least according to WAR) to come out of the area, or at least he was until Michael Brantley came along. Again, there are dividing lines for a collection – I don’t collect Brantley because I had left the area before he became a local player. He was in the right place just at the wrong time. Brantley’s time in that area did overlap perhaps an even more famous individual from the area – you may have seen Megan Fox in a movie or two.

There are other players from the area, more minor players in the history of the game. Ed Hearn, who was born in Stuart and went to Fort Pierce Central, was a favorite of my best friend’s mom. He also happened to play for the 1986 Mets, which is good enough for me. Like Charles Johnson, Terry McGriff is a catcher out of Westwood and is actually Charles Johnson’s uncle. He’s also a cousin to Fred McGriff (who I also collect in a limited fashion though that has nothing to do with location – it has everything to do with time). A friend of mine in elementary school got Terry McGriff’s autograph when Terry visited my friend’s elementary school. Eventually that card ended up in my collection through a trade of some sort.

Danny Klassen, who went to John Carroll High School, is the closest in age to me, and while I didn’t play baseball with him (I was on the north side of Port St. Lucie and played at Sportsman’s Park; he was playing on the south side at Lyngate Park) I know many people who played on teams with him in Little League and Legion Ball. I believe he has a World Series ring with his time on the Diamondbacks. Wonderful Terrific Monds was a player I didn’t know much about, but (1) a good friend of mine’s parents couldn’t stop talking about how good he was and (2) his name is awesome. He never made it to the majors, but he has minor league cards and a handful of cards from mainstream sets due to being in the minors at the right time (a prospect in the early 1990s).

I should probably have a Jon Coutlangus collection, but alas, I think he was a year too late. At one point I identified Joe Randa as the best MLB player to attend Indian River Community College (which is now Indian River State College), so I started a Randa collection, though I don’t remember much about his IRCC career.

The more prominent players (Ankiel, Johnson, and Randa) have some game-used and autographed cards; most have parallel cards in one product or another. Okay, Ankiel has over 100 different autographed cards and over 50 memorabilia cards according to Beckett; he was a hot prospect at a time when there were multiple fully-licensed producers. He’s also popular enough that he has autographed cards in recent Topps issues, well after his retirement from baseball. Hearn, McGriff, Monds, and Klassen only have a handful (or what I would call a handful – less than 75) of cards. It’s usually easier to find the rarer cards of the bigger names because sellers will list them, with the cards of the less popular players coming up occasionally.

While the cards of these players aren’t going to set records at an auction or allow me to buy an island, the collection provides a tie to my formative baseball playing and baseball card collecting years. For me, those types of connections are why I collect.