Entrance to Yankee Stadium, New York, Haberman’s, New York, 1920s.
There is no bigger name in baseball than Babe Ruth, and during his time, there was no bigger stage in the sport than the playing field at East 161st Street and River Avenue in the Bronx, the original Yankee Stadium, The House That Ruth Built.
Constructed in 11 months after Yankee owners Colonels Jacob Ruppert and the equally-ranked but more aristocratically-named Tillinghast (Til) L’Hommedieu Huston finally grew bone-tired of being second-class tenants at the New York Giants home at the Polo Grounds, the stadium opened on April 18, 1923. Costing $2.5 million, the park was the most expensive ball ground built to date. With three decks it was also the largest, and the first in the United States to carry the weighty designation of stadium. The opener drew more fans than had ever before seen a game, besting the headcount set at Braves Field in Game Five of the 1916 World Series by more than 20,000 fedoras.
Somewhere north of 62,000 devotees mobbed the new home of the Yankees, packing the aisles and corridors for 90 minutes during the pre-game festivities. It was like “a subway crush hour” one witness testified, mellowed only by the consumption of Volstead lager at 15 cents a stein by the Prohibition crowd.
The New York Evening Telegram noted the scents of “fresh paint, fresh plaster and fresh grass” in the air on a cloudy, windy spring day when the temperature struggled to reach 50.
Shortly after 3 pm, John Philip Sousa and the Seventh Regiment Band led a battalion of baseball barons and civic potentates into center field and played the national anthem to the raising of the Stars and Stripes. Witnessed by “pretty much everybody who was anybody” in the city, the American League pennant won by the Yankees in 1922 followed Old Glory up the pole. The pennant gathered the loudest cheer.
After a round of pre-game pleasantries, Umpire Tommy Connolly called “Play Ball” at 3:35.
The late afternoon start to the game didn’t sit well with one observer. “Some day New York will be convinced that 3 o’clock is the proper hour with the fans for a ball game to begin, but as yet owners persist in holding off for those half dozen fans from Wall Street who can’t make it so early.”
Baseball Commissioner Kenesaw Mountain Landis, running late to the ceremonies after choosing a proletarian train to the park, had to be plucked from the ticket lines and escorted into the stadium by the police.
Not everyone was lucky enough to get through one of the 40 turnstiles open for the event. The Fire Department ordered the gates closed with 25,000 hopeful patrons still outside the grounds. One latecomer, trying in vain to recover from a poorly-chosen subway connection, couldn’t get into the park for “money, marbles or chalk.”
Ruth hit two balls into the bleachers off Sam Jones during batting practice. The first landed harmlessly. The second splintered a wooden plank, scattering a group of young boys in one direction to escape the explosion, and then in another to capture the projectile.
In the third inning, he hit one that counted, smashing a slow, waist-high offering from opposing pitcher Howard Ehmke into the right field bleachers to drive in a pair of teammates and lead Yankees to a 4 to 1 win over his former team, the Boston Red Sox. A columnist for the New York Daily News depicted the scene:
From high noon on there had been a sound of revelry in the Bronx for Baseball’s Capital had gathered there its beauty and chivalry. But when the “Babe” tore into the ball the revelry became riot. The beauty and chivalry leaped to its feet and behaved unlike true beauty and chivalry should, tearing up programs, breaking canes, smashing neighboring hats and shrieking, shouting and howling. It was a notable ovation, or, as they say on some copy desks, demonstration.
A reporter described the homer, 325 feet or so into the right field bleachers, as one of Ruth’s best, a “terrific drive” that never rose more than 30 feet above the field. “And above all,” added the scribe, “it probably restored the old-time confidence of the ‘Babe.’ He hadn’t been going so good on the spring training trip. He was in great condition but he wasn’t smacking them.”
The Boston Globe wasn’t impressed. Ungenerously measuring the blow at 275 feet, the paper more accurately calculated the swing would have been nothing more than an out at Fenway Park.
It would have been a homer in the Sahara, retorted a Yankee partisan.
Ruth’s second wife Claire believed the round-tripper was her husband’s proudest moment. “He definitely talked about it more than any other homerun he ever hit,” she told one interviewer.
Ruth admitted he wanted to be the first to hit one into the stands in the new home of the Yankees. “I lost sight of the ball when the fans all jumped to their feet but I recognized the yell they let out,” Ruth explained. “I feel that I have been rewarded in part for all the hard work I put in preparing myself for the training season,” the New York outfielder concluded. “I guess there must be something in that old gag about virtue being its own reward.”
The Opening Day crowd couldn’t contain its admiration for the Babe. In the bottom of the ninth, fans hopped out of the bleachers and surrounded Ruth in right field until the game ended.
It all inspired New York Evening Telegram sportswriter Fred Lieb to name the park “The House That Ruth Built,”forever tying the man and the stadium together in the nation’s memory.
Entrance to Yankee Stadium, New York, Manhattan Post Card Publishing Co., New York, 1920s.An alternate view of the stadium’s entrance in the 1920s. Postcard manufacturers were not above retouching and colorizing a scene from the same stock black and white photograph.
It took years for the temple of baseball along the Harlem River to become formally known as Yankee Stadium. During all of the 1920s, the Associated Press attached an honorific article to the park’s name and lower-cased the Roman half of the sobriquet—“the Yankee stadium.” Other stylists upper-cased both halves of the title—“the Yankee Stadium.” The Great Depression leavened the label to simply “Yankee Stadium.”
Four particular collections of baseball cards connect Ruth to Yankee Stadium:
Megacards, The Babe Ruth Collection, 1992 (165 cards)
Upper Deck, Inserts, The House That Ruth Built, 2008 (25 cards).
Megacards, 1992, The Babe Ruth Collection
Sharing a common origin, it is no surprise that the cards in The Babe Ruth Collection closely resemble The Sporting News Conlon issues of 1991—1994. Top, Megacards, The Babe Ruth Collection, 1992, Card 105; Sultan of Swat; bottom, The Sporting News Conlon Collection, 1992, Card 663, promotional, Game of the Century.
Babe Ruth led an expensive, excessive and extravagant life that sometimes crossed the border into alcoholic debauchery.
Frank Lieb tells stories of a detective reporting Ruth having trysts with six women in one night, being run out of a hotel at gunpoint by an irate husband, and being chased through Pullman cars on a train one night by the knife-wielding bride of a Louisiana legislator. The press kept quiet. “If she had carved up the Babe, we would have had a hell of a story,” said one scribe who witnessed the race.
His salary demands were an annual source of amusement and debate among the sporting press.
Colonel Til Huston tried to rein in the Babe in 1922. “We know you’ve been drinking and whoring all hours of the night, and paying no attention to training rules. As we are giving you a quarter-million for the next five years, we want you to act with more responsibility. You can drink beer and enjoy cards and be in your room by eleven o’clock, the same as the other players. It still gives you a lot of time to have a good time.”
“Colonel, I’ll promise to go easier on drinking, and get to bed earlier,” Ruth promised. “But not for you, fifty thousand dollars, or two hundred and fifty thousand dollars, will I give up women. They’re too much fun.”
The high life caught up with Ruth in the spring of 1925. An ulcer put the slugger into the hospital for five weeks. It didn’t slow him down much. In August, he was suspended and fined $5,000 for showing up late to batting practice after a night on the town.
That fall, Ruth admitted he had been “the sappiest of saps” in an interview with Joe Winkworth of Collier’s magazine.
“I am through with the pests and the good-time guys,” Ruth declared. “Between them and a few crooks I have thrown away more than a quarter million dollars.”
Ruth listed a partial toll. $125,000 on gambling, $100,000 on bad business investments, $25,000 in lawyer fees to fight blackmail. General high living cost another quarter million.
“But I don’t regret those things,” Ruth said. “I was the home run king, and I was just living up to the title.”
Megacards, The Babe Ruth Collection, 1992.Card 103, Babe and his 54-ounce bat.
Four dozen bats waited for Ruth at the Yankees St. Petersburg training camp in 1928, some of the dark green “Betsy” color that powered many of Ruth’s 60 homers in 1927 and the rest the slugger’s favored gold. The bats averaged 48 ounces, 6 ounces less than Ruth had formerly swung.
“At last I’ve got some sense,” Ruth told sportswriter and cartoonist Robert Edgren that year. “I used to think Jack Dempsey was foolish to train all the time—but Jack never got fat, did he?
“So this winter I’ve been keeping up a mild course of training most of the time. I’ve done a lot of hunting and on top I spend my spare time playing handball, wrestling and boxing in Artie McGovern’s gym. But the diet is the big thing.”
“You can’t be a hog and an athlete at the same time,” McGovern admonished the Babe. “You eat enough to kill a horse.”
Ruth followed McGovern’s advice that spring, slashing his meat consumption and loading up on fruits and vegetables.
“More important,” said Edgren, “he still has a boy’s enthusiasm for baseball.”
McGovern’s watchful eye and the lighter lumber kept Ruth at the top of his game. So did his marriage to the ever-vigilant Claire Merritt Hodgson. Between 1928 and 1931, Ruth homered 195 times and drove in 612 runs.
Megacards, The Babe Ruth Collection, 1992.Card 121, Claire Hodgson.
The well-curated and comprehensive 1992 Megacards set traces Babe Ruth’s career in 165 cards. The set is divided into specific sections, among them year-by-year summaries of his baseball career, the records he established, his career highlights and anecdotes and remembrances by family members and teammates.
Megacards, The Babe Ruth Collection, 1992. Clockwise from upper left: Card 9, Ruth pitches Red Sox to 24 wins in 1917; Card 16, wins batting title in 1924 with a .378 average; Card 22, knocks nine home runs in a week during 1930, including the longest ever hit at Shibe Park; Card 25, drives in 100 or more runs his 13th and last time in 1933.
Megacards, The Babe Ruth Collection, 1992. Top to bottom: Card 108, Ruth was the first player to hit 20, 30, 40, 50 and 60 home runs in a season; Card 92, in 1934, Ruth led a group of American League players on a 17-game exhibition tour of Japan. A half-a-million or more fans watched the players parade through the Ginza on the second day of the expedition; Card 94, inducted into the hall of fame, 1939.
Megacards, The Babe Ruth Collection, 1992. The home runs.Clockwise from upper left: Card 72, First Home Run; Card 77, First Home Run in Yankee Stadium;Card 81, Babe and Lou combine for 107 homers; Card 93, Last Major League Homers.
Megacards, 1995, Babe Ruth 100th Anniversary
Megacards followed up its biography of Ruth with a 25-card set in 1995 to mark the 100th anniversary of the legend’s birth.
Megacards, Babe Ruth 100th Anniversary, 1995. Top to bottom: Card 5, 177 Runs Scored in 1921, Card 5; Card 12, Fishing with Lou Gehrig in Sheepshead Bay, 1927 ; Card 3, .847 Slugging Average in 1920. The Babe is pictured here with fellow sluggers Jimmie Foxx, Lou Gehrig and Al Simmons in 1929.
Megacards, Babe Ruth 100th Anniversary, 1995. Card 11, the Red Sox pitching prospect threw nine shutouts in 1916.
Upper Deck, 2008, Yankee Stadium Legacy
In 2008 and 2009, Upper Deck marked the last season of the original Yankee Stadium by issuing an enormous 6,742 insert set, one card for every game played at the park or other historic sporting event that occurred on the grounds. Ruth is featured on many of the cards, either as a representative player for the day or because of a game highlight. The final card in the set documents Andy Pettitte’s win over the Baltimore Orioles on September 21, 2008.
Upper Deck, Yankee Stadium Legacy, 2008. Card 6742, Andy Pettitte.
The company also issued a more accessible 100-card boxed stadium legacy set. During his time with the Yankees, Ruth overshadowed all his teammates. Only Lou Gehrig pulled some of the spotlight away from the home run king. Still, it was a big shadow. “There was plenty of room to spread out,” said the Yankee first baseman.
Upper Deck, Yankee Stadium Box Set, 2008. Some of the Babe’s teammates.
Clockwise from upper left: Card 10, George Pipgrass; Card 5, Waite Hoyt; Card 9, Urban Shocker; Card 8, Earle Combs. Pipgrass led the American League with 24 wins in 1928. Hoyt won 23. Shocker won 49 games for the Yankees between 1925 and 1927. The speedy Combs scored 143 runs in 1932, one of eight straight seasons the centerfielder scored 100 or more runs. Most of the cards in the boxed set picture later members of the Yankee fraternity.
Upper Deck, 2008, Inserts, The House That Ruth Built
Upper Deck also distributed a separate insert set of 25 cards in 2008 under the title The House That Ruth Built. The first three cards highlight the 1923 season.
Later in the set, an eight-card sequence including numbers 8, 10 and 13, below, chronicles Ruth’s 60-home run 1927 season.
In a time of cellphone cameras and Instagram, it’s hard to remember that postcards were once the quick and inexpensive way to connect with friends and family.
Yankee Stadium’s early decades coincided with the postcard industry’s Linen Age. The cards were not actually cloth—a manufacturing process increased the amount of cotton fiber in the paper stock and created a canvas texture during printing. The ridges gave a soft focus to the cards and the higher rag count allowed deeper saturation of inks. Bright and vivid scenes with a wide palette of colors resulted. Yankee Stadium was a natural draw for the postcard manufacturers of the era.
Yankee Stadium, New York City. The Union News Co., 1937.Babe Ruth’s Opening Day home run would have landed in the lower left-center of this view.
Unattributed.Early view of outfield at Yankee Stadium in 1920s with flagpole in play.
“The Yankee Stadium is indeed the last word in ball parks,” wrote F.C. Lane of Baseball Magazine. “But not the least of its merits is its advantage of position. From the plain of the Harlem River it looms up like the great Pyramid of Cheops from the sands of Egypt.
“There is nothing behind it but blue sky,” Lane continued. “Stores and dwellings and the rolling hills of the Bronx are too far removed to interfere with this perspective…The Yankee Stadium stands out in bold relief and the measuring eye gives it full credit for every ounce of cement and every foot of structural steel that went into its huge frame. As an anonymous spectator remarked, viewing the new park from the bridge that spans the Harlem, ‘As big as it is, it looks even bigger.’”
Manhattan Post Card Publishing Co., New York City, Yankee Stadium, New York City, 1942.
The 1923 Yankee opener outdrew the rest of the American League openers, combined. More than one million fans passed through the turnstiles in the Bronx during the year. The count led the major leagues, but by a lesser margin than might be expected—the Detroit Tigers drew 911,000.
Acacia Card Company, New York, New York. Lights were installed in 1946.
The Yankees were one of the last teams in the American League to light their field. Only Boston and Detroit waited longer. “It’s not really baseball,” Lou Gehrig said of the nocturnal version of the game. “Real baseball should be played in the daytime, in the sunshine.”
Alfred Mainzer, New York City. A flag bedecked and sold-out stadium, 1951.
Upper Deck, The House That Ruth Built, 2008. The Last Appearances at Yankee Stadium.Top: HRB-24, Babe Ruth Day; bottom: HRB-25, Jersey Retired.
On April 27, 1947, Major League Baseball celebrated Babe Ruth Day at each of the seven games played that day (Detroit at Cleveland was postponed). 58,000 fans attended the event at Yankee Stadium. The other parks drew a total of 190,000 and the ceremonies were broadcast on radio around the world. Francis Cardinal Spellman delivered the invocation, describing Ruth as a sports hero and a champion of fair play. On the secular plane, Ford Motor Company gave the Babe a $5,00 Lincoln Continental.
The presidents of the National and American League presented Ruth a medal on which was inscribed the message “To Babe Ruth, whose tremendous batting average over the years is exceeded only by the size of his heart.”
Suffering from throat cancer, Ruth was able to muster a short farewell speech barely audible into the microphone. “There’s been so many lovely things said about me,” Ruth concluded. “I’m glad I had the opportunity to thank everybody.”
The New York Times said the ovation for the slugger was the greatest in the history of the national pastime.
Almost as an anti-climax, the Yankees retired Babe Ruth’s number 14 months later on June 13, 1948. But the cheers were still there. “He never received a finer reception,” wrote Oscar Fraley of the United Press. “It was a roar that sounded as if the 50,000 fans were trying to tear down The House That Ruth Built.”
The Sultan of Swat died an old man at the young age of 53 on August 16, 1948. His body lay in state for two days after his death at the main entrance of Yankee Stadium. Tens of thousands of fans paid their last respects to the slugger.
Megacards, The Babe Ruth Collection, 1992.Card 163, Game Called.
Author’s Note: This is the fourth, and final, installment in a multi-part series that explores the legal backstories that have shaped (and continue to shape) the baseball card industry.
Worth a Gamble?
In 1996, a group of plaintiffs filed lawsuits against card manufacturers in federal courts across the country claiming that including insert cards in their wax packs constituted illegal gambling activity under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and that they were entitled to damages for not having received one of the rare autographed cards in the packs purchased. “RICO, in pertinent part, defines ‘racketeering activity,’ as ‘any act or threat involving … gambling. which is chargeable under state law and punishable by imprisonment for more than one year.’ 18 U.S.C. § 1961(1)(A).” Plaintiffs claimed all elements of gambling were met, which required (1) consideration [price of the pack], (2) chance [chase cards were inserted randomly] and (3) a prize [chase cards had significant value on the secondary market].
Back of 1996 Pinnacle Baseball package showing odds of finding insert cards
The first of these cases to be decided was the lawsuit filed against Pinnacle Brands in Texas. On April 2, 1997, the court dismissed the case because the purchasers of the packs of cards “got exactly what they paid for,” namely “six to twenty cards in a pack with a chance that one of the cards may be of Ken Griffey Jr.” Accordingly, the plaintiffs “had not suffered any injury to their business or property.” Without a tangible financial loss, plaintiffs had no standing to pursue a RICO action. This decision was affirmed by the Fifth Circuit Appellate Court on April 22, 1998.
While the Pinnacle case was ongoing, a RICO action was pending in California against Upper Deck. That court, however found that because plaintiffs alleged that “a portion of the purchase price” was paid as consideration for the chance of winning a chase card, they had adequately alleged a cause of action under civil RICO. Upper Deck’s motion to dismiss the case was denied.
The court held that the value of the chase cards were “readily ascertainable in Beckett’s monthly trading card magazine.” Further, “when someone enters a hobby shop or trading card shop and purchases a package of Upper Deck cards, that person can immediately sell any chase cards he receives to the shop owner for the value quoted in the price guides.” (Though the assumption a shop owner would pay full price for a card is a leap of logic.) This potential arrangement made the chase cards “almost as good as cash,” tantamount to a winning scratch-off lottery ticket.
The court also made an astute observation that seemingly persists to this day—pack buyers “do not care whose face is on the card; they only care about its value in the secondary market.” In the footnotes, however, the court warned that if the odds on the packages were set correctly, there would be no net gambling losses, though the record did not divulge whether the odds stated correctly reflected the value of the chase cards on the secondary market.
Eight of these similar baseball card-RICO cases were eventually consolidated in California where the court was asked to decide whether the random inclusion of limited-edition cards in packages of otherwise randomly assorted cards constituted unlawful gambling in violation of RICO. The district court ultimately dismissed all of the lawsuits trading card purchasers “were not injured in their business or property” as required by the RICO statute. The district court’s opinion was affirmed by the Ninth Circuit on August 20, 2002, which held that “disappointment upon not finding an insert card” was not an injury to property and did not give the plaintiffs standing to sue for civil damages under RICO. Likewise, the plaintiffs could not recover for having developed a “habit” of buying cards to find the chase cards.
Upper Deck and Ken Griffey Jr. take on Topps
Although the Major League Baseball Players Association (MLBPA) had negotiated a licensing agreement with Upper Deck for use of players’ names and likenesses, that agreement did not control game-used items obtained directly from the player. Several stars including Ken Griffey Jr., Sammy Sosa, Jose Canseco, and Alex Rodriguez executed “highlight agreements” with Upper Deck that purported to give Upper Deck the exclusive right to sell cards that incorporated game-used equipment and memorabilia.
When Upper Deck learned that Topps was advertising certain cards in its 2001 Topps Gold Label issue would include tiny sections of game-used jerseys and bats, Upper Deck and Ken Griffey Jr., individually, sued to stop Topps from releasing cards of those players with whom they had contracted. They alleged that Topps did not have a license or permission from the players or the MLBPA to produce cards containing game-used equipment.
Topps countered that it had a licensing agreement with Ken Griffey Jr. that was valid through 2003 and dated originally to 1987, “before Upper Deck even existed.” This agreement gave Topps the non-exclusive right to use Griffey’s name and likeness, “the very right that Upper Deck purports to have obtained exclusively through a later agreement.” Topps argued that it legally obtained the Griffey jersey on the secondary market “at a relatively modest cost and at no injury to Griffey.” Topps even mentioned that Upper Deck had already litigated and lost the same issue when they tried to stop Score Board, Inc. from selling autographed Mickey Mantle memorabilia (as covered in Part III).
2001 Topps Gold Label
MLB Award Ceremony Relics Ken Griffey Jr. (Jersey Relic – #GLR-KJ)
Upper Deck’s motion for temporary restraining order was denied on March 6, 2001. The case was dismissed voluntarily without prejudice on June 12, which gave Upper Deck the right to refile if they had so chosen. Regardless, Topps issued its special edition 2001 Gold Label award winner cards, including cards honoring Ken Griffey Jr.’s 1997 MVP season that incorporated bat and jersey relics.
Squeeze Play: Topps and Upper Deck Survive
Production of distinct baseball card products peaked in 2003 as card companies inundated the market with 91 separate major issues packaged under brand names including Bazooka, Bowman, Donruss, Finest, Flair, Fleer, Leaf, Playoff, SP, Stadium Club, Topps, Ultra, and Upper Deck. Another 87 major issues followed in 2004 and 90 in 2005. (You may recall that the MLBPA had admitted to a “glut” in the trading card market a decade earlier in the Cardtoons litigation.)
On July 21, 2005 the MLBPA made a major announcement—it was scaling back its baseball card licenses to just two manufacturers: Topps and Upper Deck. The MLBPA’s Director of Trading Cards and Collectibles, Evan Kaplan, explained “the presence of fewer products in the marketplace will reduce consumer confusion and clutter on retail shelves” with a goal to have no more than 40 MLBPA-endorsed baseball products. The MLBPA also mandated that a rookie card logo would be required to appear on cards of players who had made their MLB debuts and that “rookie cards will no longer be issued before they reach the Majors.”
Venerable manufacturer Fleer had closed its doors in May 2005, unable to service $30 million in debt. Fleer filed an assignment for the benefit of creditors action in Burlington County, New Jersey (a state court process akin to a federal Chapter 7 bankruptcy filing) and was appointed a lawyer to manage the repayment of its debts. As part of the liquidation, Upper Deck purchased Fleer’s intellectual property and diecast toy car business for $6.1 million in July—a fraction of the $25 million Upper Deck had reportedly offered Fleer just a year prior. On September 9, an auction was held in which Fleer’s remaining office furniture, equipment, sports cards, and a memorabilia stockpile was sold off.
Major issues in 2006 plummeted to just 38 sets, all manufactured by Topps and Upper Deck. Still viable, Donruss was left out in the cold, but this was not the last time we would hear from the company.
Cool Papa Bell and the Cards that Shouldn’t Have Been
Connie Brooks was James “Cool Papa” Bell’s daughter and executrix of his estate following his death on March 7, 1991. Brooks granted licenses to Upper Deck to issue Bell cards in 1994 and 2001, along with other licenses for clothing, throw blankets, and Wheaties boxes in 1996.
In late 2004 Topps called Brooks to negotiate a license to issue Bell cards in 2005. At the time of this call Brooks did not know—and the Topps representative did not mention—that Topps had already issued seven different Cool Papa Bell cards in 2001 and 2004. Following the call, Topps sent Brooks a licensing proposal dated December 17, 2004 that offered $5000 in exchange for the right to use Bell’s name and image for 2005. The cover letter sent with the blank agreement stated that Brooks had agreed to the arrangement during the call, though she denied having done so. Brooks did not sign or return the proposal.
Not long thereafter Brooks learned that Topps, in 2004, had already produceda Cool Papa Bell card without her knowledge or permission. She contacted Topps and was provided a copy of the 2004 eTopps card and 2004 “Tribute Hall of Fame” card featuring Bell, along with a promise the company was “still looking for other cards Topps may have published depicting Bell.”
2001 Topps What Could Have Been – James “Cool Papa” Bell (#WCB4)
Later in 2005 Brooks learned that Topps had also issued Bell cards in 2001. She took exception to the narrative on the back of the 2001 card, which stated, “Cool Papa, who once stole more than 175 bases in a 200-game season, earned his nickname after falling asleep right before a game.” Brooks asserted the description was false and derogatory. William (Bobby) Robinson’s daughter Patricia Hawkins wrote to Judge Cote imploring that Bell “was a credit to his family, his race, his teammates and history as set by examples of his life and lifestyle, both impeccable.” Brooks added that Bell “never indulged in alcohol, smoked cigarettes, or used drugs. He was not a clown, drunkard, or nodding buffoon.” Without any pension provided by the Negro League, Bell worked 22 years as a custodian and night watchman at the St. Louis City Hall until his retirement.
Brooks complained that “Topps’ false statement [regarding the origin of the ‘Cool Papa’ nickname] will be read by many children and may be their only glimpse into the world of Negro League baseball and my father’s career.” Topps responded with an offer of $35,000 in exchange for Brooks executing a settlement agreement and release of liability. She refused and demanded a listing of all Bell cards Topps had produced.
By letter dated January 31, 2006, Topps provided Brooks with a list of “all cards of Cool Papa Bell produced by Topps from 2001-2005.” Brooks responded by filing a lawsuit against Topps on March 27, 2006 claiming Topps had used Bell’s “name, likeness, signature, intellectual property rights, and publicity rights” without authorization and had published defamatory information about Bell. Brooks asserted formally that Bell earned the nickname “Cool” for remaining calm under pressure and his manager Bill Gatewood added “Papa” to the end.
Topps countered that Bell’s right of publicity died with him and the company was free to use his image on baseball cards without needing permission from Brooks. Alternatively, Topps claimed it had been granted permission by Major League Baseball to use Bell’s likeness on the cards it issued (though Topps never produced any evidence to support this doubtful contention). Further, Topps responded that it had taken the information regarding the source of Bell’s nickname from the book Players of Cooperstown: Baseball’s Hall of Fame, published in 1997.
On December 21, 2007 Judge Denise Cote issued her decision granting Topps’ motion for summary judgment. Unfortunately, Brooks had not filed the right of publicity case within the one-year statute of limitations afforded by the underlying state law. The court found that the most recent Bell card was published on November 1, 2004 and refused consider Brooks’ argument that the card really had not been truly “published” on that date because it was distributed in sealed packages. Moreover, Topps had not made affirmative misrepresentations regarding the prior publication of Bell cards to Brooks within the year that those most recent cards were marketed. Brooks’ claims of false endorsement, false advertising and unfair competition also failed; Judge Cote found in Topps’ favor. In other words, Topps was free to have issued over 87,000 individual cards depicting Cool Papa Bell without permission.
Brooks filed an appeal, which was dismissed on November 3, 2008, presumably because the parties had reached a voluntary settlement.
Major League Baseball v. Donruss
Major League Baseball (MLB) reported revenues from baseball card licensing in excess of $75 million for the decade preceding 2009. However, a shift in demand had decreased the total market for all trading cards from approximately $1 billion at its height to $200 million. Further, the baseball card segment within the trading card market (including non-sport cards) had decreased from 75%-80% in the mid-1980s to just 15%-20%. In light of the prevailing market conditions in the mid-2000s, MLB had chosen to pare down its list of companies licensed to manufacture baseball cards to help stem further diminution of trading card licensing value.
2008 Donruss Threads Tom Seaver (#19), Madison Bumgarner (#91)
When its licensing agreement with Donruss expired on December 31, 2005, MLB chose not to renew. That expired license agreement provided explicitly that Donruss would not use any MLB trademarks “in any capacity” without prior written consent, to include “primary colors of the MLB clubs in combination with baseball indicia or the MLB Clubs’ geographic designation.” Donruss eased its way back into the baseball card market in 2007 with its Elite Extra Edition set of 143 cards, which showed draft picks in their college uniforms or business suits and referenced the drafting team only by city name and an “AL” or “NL” league designation.
The Donruss Threads issue in 2008, however, caught MLB’s eye because the set included “numerous cards depicting former Major League Baseball players in the MLB Uniform Trade Dress and featuring various other MLB Marks.” MLB acknowledged that Donruss attempted to obscure or alter team logos, but the uniforms remained readily identifiable. (MLB also objected to the use of Minor League Baseball trademarks in the set pursuant to an agency agreement by which the names and likenesses of MiLB ballplayers were controlled by the respective parent MLB club.)
The matter was settled for a confidential dollar amount. A consent judgment was entered on August 14, 2009 in which Donruss was permanently enjoined from using any MLB marks and went as far as to prohibit Donruss from using an image featuring “a component of a Major League Baseball uniform that is airbrushed, intentionally blocks or covers, or otherwise alters, any of the MLB marks.” All offending product that had not been previously sold was to be destroyed. Finally, Donruss was precluded from opposing, cancelling, or interfering with the use or registration of MLB trademarks.
Panini bought Donruss in March 2009 and the newly christened “Panini America” issued Donruss Elite Extra Edition sets in 2009 and 2010 featuring draftees in their college uniforms and listing their drafting club only by city name. The 2011 Donruss Elite Extra Edition was a 25-card set that featured current MLB players, but Donruss cleverly had each player pose in generic pants and a plain t-shirt (and probably with a company lawyer in attendance).
Exclusive Details: MLB Cuts Ties with Upper Deck
In August 2009, Major League Baseball Properties (MLB) announced that it had awarded Topps a multiyear deal effective January 1, 2010 to become its exclusive trading card partner, with the hope that by dropping Upper Deck, Topps could “invigorate card collecting, especially with young fans.” Former Walt Disney Company CEO, Michael Eisner, who had acquired Topps in 2007, declared “it’s been difficult to promote cards as unique and original.”
In the wake of the news, Upper Deck voiced its intention to continue manufacturing cards and that they were going to analyze whether they could really be banned from depicting MLB logos and jerseys as MLB claimed. Perhaps not surprisingly, Upper Deck continued to market cards, often showing MLB logos and would have to engage in a separate fight with Topps of the alleged appropriation of trademarked Topps card designs from the 1960s and 1970s.
The major card set offerings in 2010 (21) would be the leanest since 1991 (25).
Topps v. Upper Deck
Canadian bubblegum manufacturer O-Pee-Chee (whose mark was based on a robin named “Opechee” in Henry Wadsworth Longfellow’s epic poem “The Song of Hiawatha”) had a licensing agreement with Topps from the late 1950s through 1992 under which O-Pee-Chee produced trading cards using O-Pee-Chee trademarks for sale in Canada. During this time, Topps and O-Pee-Chee produced nearly identical baseball card sets but for card stock differences, branding, occasional photo variations, and the O-Pee-Chee versions including bilingual wording on baseball cards (required as of 1970 after the Canadian Parliament enacted the Official Languages Act in 1969, which gave English and French official status).
Throughout their longstanding relationship, however, none of Topps’ card design copyrights were transferred to O-Pee-Chee—theirs was strictly a licensing arrangement. In 1992, O-Pee-Chee severed ties with Topps and independently issued sets of baseball cards in 1993 and 1994 featuring original card designs.
In 2001, Upper Deck issued its first “Vintage” set comprised of cards—both front and back—that strongly resembled the 1963 Topps set. Similar Upper Deck Vintage sets followed in 2002 and 2003, each of which strongly resembled the 1971 and 1965 Topps sets, respectively. [Presumably Topps was not flattered by the imitation, but the author has not uncovered any litigation pertaining to Upper Deck’s production of these cards.] The final Vintage offering in 2004 sort of resembled 1954 Red Heart card fronts but featured completely different backs.
In 2007, Upper Deck announced it had acquired rights to relaunch the O-Pee-Chee brand name. Upper Deck produced hockey sets under the O-Pee-Chee banner immediately and in 2009 announced it would issue a 600-card baseball set under the O-Pee-Chee name. Available insert cards included separate series that resembled Topps’ 1975 baseball issue and Topps’ 1979-1980 hockey issue.
Upper Deck’s early promotional materials for the 2009 baseball set included mockup cards for Ichiro and Albert Pujols that were dead ringers for the 1971 Topps set design, with an additional insert set that resembled the 1977 Topps baseball card fronts. Ultimately, however, the 2009 Upper Deck O-Pee-Chee issue utilized a unique card design that did not appear to resemble any prior Topps products.
Topps took issue with the perceived design misappropriation and sued Upper Deck in federal court claiming that Upper Deck had not acquired any Topps’ copyrights when it made the deal with O-Pee-Chee. Topps also objected to Upper Deck’s use of autographed Topps cards having been incorporated into SP Legendary Cuts insert cards. Topps sought damages and an injunction to prevent Upper Deck from selling the cards that allegedly infringed on their copyrights.
Ultimately, Upper Deck’s attempted end around to use Topps designs by acquiring O-Pee-Chee rights was unsuccessful. Upper Deck settled for an undisclosed amount at a mediation held on November 2, 2009. No further O-Pee-Chee baseball sets were issued after 2009.
Upper Deck Thumbs its Nose at Major League Baseball
Despite its licensing agreement with MLB having expired on October 31, 2009, Upper Deck issued its 2009 Signature Stars and 2009 Ultimate Collection sets in January 2010. Upper Deck was also about to issue its full-blown 2010 flagship baseball card set (“Series I”) totaling 600 cards and complimented by a multitude of separate insert sets. The cards in each one of these sets, however, included photographs depicting MLB logos and marks that Upper Deck was no longer authorized to use.
2010 Upper Deck Albert Pujols (#463)
While the cards were licensed by the MLBPA, Major League Baseball sued Upper Deck in February 2010 to stop the sale of the cards and prevent the distribution of additional planned issues including a planned second series for the 2010 flagship set (cards 601-650). In its complaint, MLB alleged Upper Deck displayed “a pattern of utter disrespect for the contractual and intellectual property rights of those from whom it licenses valuable trademarks.” MLB otherwise claimed Upper Deck had defaulted on payments totaling over $2.4 million across a number of licensing agreements.
The parties reached a settlement in which Upper Deck agreed to pay $3,065,824.92 to Major League Baseball and on March 17, 2010, entered a consent judgment in which Upper Deck acknowledged it had used MLB’s marks without permission in its 2009 Ultimate Collection, 2009 Signature Stars, and 2010 Series I issues. Upper Deck was permitted to sell any remaining cards that had been manufactured on or before February 1, 2010.
As part of the agreement, Upper Deck was permanently enjoined from using MLB’s marks: “in whole or in part of current or former players, coaches or managers wearing any item resembling a Major League Baseball uniform,” including “jerseys, pants, jackets, caps, helmets, and catchers’ equipment.” The judgment also prohibited Upper Deck from using an image featuring “a component of a Major League Baseball uniform that is airbrushed, intentionally blocks or covers, or otherwise alters, any of the MLB marks.”
On February 29, 2012, Major League Baseball had to file a subsequent lawsuit against Upper Deck in an effort to collect the remaining $265,000, plus interest, that Upper Deck had failed to pay under the settlement agreement reached in 2010.
How to Catch a Buzz
Topps issued an “American Heritage: American Heroes Edition” set in 2009 that featured cards of famous athletes, politicians, scientists, and other historic figures and events on cards using designs from Topps’ past. Several of these cards honored NASA space missions and depicted patches, rockets, and the Space Shuttle.
2009 Topps Heritage American Heroes box
After being unable to negotiate a licensing fee with Topps, Dr. Edwin “Buzz” Aldrin took exception to several cards in the set Topps issued anyways that featured his name and likeness. He was also upset the product box used the famous “Visor Shot” photo of Aldrin taken by Neil Armstrong during the Apollo 11 moon landing—along with Mickey Mantle and Abraham Lincoln. (Aldrin objected even though his face is not visible, and he can be identified only if one were to focus in on his name badge.) The card for the Gemini XII mission, in particular, included this historical description on the reverse:
“Astronauts had operated outside the spacecraft before, but astronaut Buzz Aldrin’s smooth, multi-tasking 140-minute space walk outside of Gemini XII was what finally confirmed NASA’s highest hopes for extravehicular astronaut activity. Gemini XII’s flawless, computer-guided re-entry marked the end of Project Gemini; America was ready to shoot for the moon.”
On December 27, 2010, Aldrin filed a lawsuit against Topps in California claiming his name, image, and likeness were used improperly. Topps countered that it was permitted to use the photos and descriptions of Aldrin and his historic accomplishments because they were matters of free speech and an issue of public interest. Ultimately, the court found that Topps had a First Amendment right to use Aldrin’s name and likeness without need for permission or payment. The cards simply used “Aldrin’s name in the course of conveying information about his historically significant achievements” and were not advertisements for some other, unrelated product. Further, the photo used on the box was deemed a “mere adjunct” to the cards themselves and was also protected.
A Case of Mistaken Identity?
2007 Topps Fausto Carmona (#497)
Fausto Carmona went 19-8 with a 3.06 ERA for the 2007 Cleveland Indians, a season in which he finished fourth in Cy Young Award voting and garnered MVP votes. Carmona was an All-Star in 2010, and the Indians’ Opening Day starter in 2011. On January 19, 2012, Carmona was arrested in his native Dominican Republic for allegedly using a false identity. It was revealed that Carmona’s real name was Roberto Hernandez Heredia, and he was 31, three years older than he had claimed.
Ohio educator Aaron Cookson had invested heavily in his Fausto Carmona personal collection consisting of “323 rookie cards of Carmona/Hernandez, mostly autographed cards with a lot of high-end and high-grade examples.” Cookson estimated he had spent in excess of $5,000 for the cards and he felt betrayed by the false identity revelation.
On August 1, 2012 Cookson filed a small claims lawsuit against Roberto Hernandez in Franklin County (Ohio) Municipal Court seeking $3000 in damages (the statutory maximum). Cookson protested, “as you know, the age of an athlete plays an important factor in his/her on-field performance and how collectable investors/collectors view their cards or memorabilia. I spent a lot of time and money collecting and investing in a guy that I thought was three years younger than he really was. I believe I was defrauded.”
According to Cookson, who remains an avid card collector, the parties reached a confidential settlement subject to a non-disclosure agreement and the case was dismissed. Pitching under his actual name, Hernandez was ineffective in three starts for Cleveland in 2012 and was released after the season. He bounced around for another four more years but was never able to recapture the magic of his 2007 campaign.
The Mastro Auctions Scandal
As of February 2009, Mastro Auctions had reportedly auctioned off more than 100,000 lots and sold in excess of $300 million worth of collectibles, including high-end baseball cards and memorabilia. Principle, Bill Mastro, was indicted in 2012 on federal mail fraud charges for his role in artificially inflating auction lot prices through shill bidding practices (i.e., bogus bids used to create illusion of demand and boost final auction prices) and for his role in altered sports memorabilia items.
The infamous Mastro-trimmed T-206 Honus Wagner
On October 10, 2013, Mastro entered a guilty plea in which he admitted to the shill bidding scheme and specifically to having personally trimmed a T-206 Honus Wagner before selling the card in 1987. He failed to disclose his alteration of the card during his involvement with an auction of the card in 1991 by Sotheby’s (when the card was famously purchased by Wayne Gretzky and Bruce McNall for $451,000), when the card was submitted to PSA for grading in 1992 (famously the first card ever submitted to PSA for grading), and at a subsequent online Robert Edwards auction in 2000 for $1.1 million plus commission (famously the most ever paid for a single baseball card at the time). Mastro also admitted to having known that laboratory test results on the “1869 Cincinnati Red Stockings Trophy Ball” sold by Mastro for $62,000 revealed that it contained paint manufactured after World War II.
Based on his guilty plea to the felony charges, Mastro was sentenced to 20 months in federal prison and assessed a fine of $250,000.
Caveat Emptor
When famed collector and New York Yankees minority owner Barry Halper announced he would be auctioning off his sizeable collection in 1999, it caused quite a stir. The collection was so renowned the catalog became a collectible in its own right and auction house Sotheby’s produced a set of baseball cards to commemorate and promote some of the most important pieces up for auction. The Halper Collection auction was wildly successful and reportedly accounted for $21.8 million in sales.
The 16-card set produced by Sotheby’s featured photos on the front of famous events combined with select items up for sale. The set contained several Babe Ruth cards, a Pete Rose card with the Expos jersey worn when he smacked his 4000th hit (signed of course), a Black Sox card, Jackie Robinson card, and a Lou Gehrig card promoting the auction of his “final glove,” among others. The back side of each card bore an uncanny resemblance the 1953 Topps issue, complete with a cartoon.
1999 Sotheby’s Barry Halper Collection of Baseball Memorabilia Willie Mays (#7)
A Willie Mays card featured a photo of “The Catch” on the front and a 1950s Willie Mays Giants travel bag and signed hat up for auction. The reverse side offered auction estimates for a 1951 Willie Mays New York Giants signed rookie road jersey ($25,000-$35,000), travel bag ($1000-$1500), and signed hat ($100-$200).
Pennsylvania collector Michael Jacobs was the high bidder on two items at the September 1999 sale, having paid $63,000 for the rookie Mays jersey and $8625 for the bag. In July 2012, Jacobs had the jersey appraised by Leland’s of New York for insurance purposes. It appraised for $400,000.
About June 2013, Leland’s brokered a deal to buy the jersey from Jacobs for $675,000 in order to sell it immediately to a third-party buyer. Unfortunately, a subsequent examination deemed the jersey inauthentic—apparently, the name and number had been added sometime after the fact to a standard 1951 New York Giants jersey. Also, it was discovered that the stenciling on the travel bag was inconsistent with the style used at the time.
Jacobs sued the Halper estate, Sotheby’s, and Grey Flannel Collectibles, Inc., the company that had authenticated the jerseys according to the auction catalogue, which stated “Grey Flannel Collectibles, Inc. is honored to have had the opportunity to evaluate and authenticate this wonderful collection of uniforms and jerseys belonging to Barry Halper.” Grey Flannel undertook a basic authentication (e.g., comparing the jerseys to photos or genuine exemplars) and removed approximately 100 jerseys from the auction it could not confirm as authentic.
The auction catalogue also included a five-year authenticity guarantee that would serve to rescind the purchase of an inauthentic item and refund of the purchase price. Jacobs was well beyond the five-year timeframe when he learned of the issue but argued that defendants could not hide behind the guarantee when they fraudulently misrepresented that Grey Flannel had authenticated the jersey.
Ultimately, the court found that Jacobs could not show “Sotheby’s displayed an extreme departure from the standards of ordinary care applicable to auction houses in selecting and relying upon third-party authenticators for sports memorabilia.” The case was dismissed on July 26, 2016, a true example of “may the buyer beware.”
The Jacobs lawsuit was just another in a long line of cases in which the parties sparred over what appeared on a baseball card—and somewhat fittingly, a card (back) that resembled one of those early 1950s Topps issues where this all began.
Conclusion
Fanatics bought Topps for about $500 million in early 2022. As of 2026, Fanatics will have the exclusive right to design, manufacture, and distribute baseball cards per licensing agreements with both the MLBPA and MLB. Will this put an end to baseball card-related litigation? Not likely.
In October 2022, a Michigan man was sentenced to 30 months in prison for selling packs of vintage baseball cards that were opened, had the valuable cards removed, and resealed to look like unopened packs. Bryan Kennert had reportedly engaged in schemes to sell counterfeit sports cards and searched packs for at least 30 years. In fact, federal agents found bogus sports cards at his home that would have been worth $7.3 million if authentic.
Elsewhere, lawsuits roll on dealing with Topps redemption cards, Upper Deck logos on counterfeit cards, and a man in New York who has sued his mother to seek the return of valuable baseball cards she has refused to return to him.
More things change, the more they stay the same.
Notes
A sincere thank you to anyone who has enjoyed this series in light of its length and often tedious legal discussions. There are dozens of other cases that could have been included and may be given separate treatment down the road. If you know of a particular baseball card-related matter you think would make for an interesting article, please let me know.
Also, a hearty thank you is necessary for Jason Schwartz for his generous time with review and in making suggested edits along the way.
www.tcdb.com “Major Issues” comes straight from the Trading Card Database website. The author was unable to find a defined methodology for what constituted a “Major Issue,” but it seems like the sets listed were typically sold nationally (U.S. and/or Canada) in individual packs.
Cases
Price v. Pinnacle Brands, Inc., 96CV2150 (N.D. Tex. 1997).
Schwartz v. The Upper Deck Co., 956 F.Supp. 1552 (S.D. Cal. 1997).
Dumas v. Major League Baseball Properties, Inc., 104 F.Supp.2d 1220 (S.D. Cal. 2000).
Dumas v. Fleer/Skybox International, LP, 99CV1793-B (AJB) (S.D. Cal. 6/21/2000) (S.D. Cal. 2000). Major League Baseball Properties, Inc. v. Price, 105 F.Supp.2d 46 (E.D. N.Y. 2000).
The Upper Deck Company and Ken Griffey Jr. v. The Topps Company, Inc., 01CV00329 (S.D. Cal. 2001). The reason why Upper Deck gave up on the case is not clear but if a settlement had been reached, the dismissal would have been with prejudice.
Chaset v. Fleer/Skybox Intern., LP, 300 F.3d 1083 (9th Cir. 2002). Eight similar cases were consolidated against the ever-expanding list of defendants to include not only trading card manufacturers but the Major League Baseball Players Association, Major League Baseball Properties, Inc., NBA Properties, Inc., NFL Properties, Inc., National Football League Players Association, National Hockey League Enterprises, NHL Players Association, Walt Disney Company, Nintendo of America, Inc., Wizards of the Coast, Inc., and others. Judgments were entered dismissing the RICO claims without leave to amend and dismissing the supplemental state law claims without prejudice pursuant to 28 U.S.C. § 1367(c).
The Upper Deck Co., LLC v. Federal Ins. Co., 358 F.3d 608 (9th Cir. 2004). Upper Deck submitted the RICO claims to its insurance carrier, Federal Insurance Company, claiming that the alleged acts were covered under its policy. Federal refused to cover the claims on the grounds that there was “no accident or occurrence” as required under the policy. Despite having prevailed in the RICO cases, Upper Deck filed suit against its insurance company seeking to recoup the money it spent defending the case. The court found in favor of the insurance company, agreeing with the Federal there was no “occurrence” to have triggered the policy and, accordingly, there was no duty on the part of Federal to pay for Upper Deck’s attorneys.
Miller v. Collectors Universe, Inc., 65 Cal.Rptr.3d 351, 154 Cal.App.4th 1047 (Cal. App. 2007).
Brooks ex rel. Estate of Bell v. The Topps Co., Inc., 2007 WL 4547585 (S.D. N.Y. 2007).
Card / Release Date / Total Number of Cards in Series / Total Number of Bell Cards in Series
(1.) 2001 Topps Series II Baseball (base card) / April 16, 2001 / 51,800,000 / 34,800
(3.) 2001 Topps Chrome (refractor parallel card) / May 21, 2001 / Same series as (2) above / 5000
(4.) 2004 Topps Tribute Hall of Fame (base card) / November 1, 2004 / 217,000 / 2170
(5.) 2004 Topps Tribute Hall of Fame (gold parallel card) / November 1, 2004 / Same series as (4) above / 74
(6.) 2004 Topps Tribute Hall of Fame (Cooperstown Cut Signature Card) (“2004 Signature Card”) / November 1, 2004 / Same series as (4) above / 1
(7.) 2004 eTopps Classic (base card) / August 2, 2004 to August 9, 2004 / N/A / 938
Major League Baseball Properties, Inc. v. Donruss Playoff, L.P. and Donruss, LLC, 09CV00593 (S.D. N.Y. 2009).
The Topps Company, Inc. v. The Upper Deck Company, Inc., 09CV3780 (S.D. N.Y. 2009). The first O-Pee-Chee baseball card set was produced in 1965.
Major League Baseball Properties, Inc. v. The Upper Deck Company, LLC, 10CV00732 (S.D. N.Y. 2010).
Aldrin v. Topps Co., CV1009939 (C.D. Cal. 2011). After the ruling in their favor, Topps filed a motion to recover attorneys’ fees. Aldrin filed an appeal. The motion for attorney’s fees was denied and on May 2, 2012, the appeal was voluntarily dismissed, presumably because the parties were able to reach some type of confidential agreement.
Major League Baseball Properties, Inc. v. The Upper Deck Company, LLC, 12CV01512 (S.D. N.Y. 2012).
Cookson v. Hernandez, Franklin County (Ohio) Municipal Court, Case No. 2012 CVI 029028.
United States of America v. William Mastro, 12CR00567 (2012). The Mastro-trimmed T-206 Wagner was the first card ever submitted to PSA and received an 8/10 grade, but would not have been eligible for a number grade if the alteration had been disclosed or independently discovered by PSA.
Jacobs v. Halper, 14CV06515 (E.D. Pa. 2014); 116 F. Supp. 3d 469 (E.D. Pa. 2015). Note: The checklist for the “1999 Sotheby’s Barry Halper Collection of Baseball Memorabilia” set found on www.tcdb.com is inaccurate. Here is the actual checklist: 1. Sotheby’s header card, 2. The Babe’s Last Bat, 3. Lou Gehrig Day, 4. Joe D’s Rookie Year, 5. The Black Sox Series, 6. The M&M Boys, 7. Willie’s Catch, 8. The Shot Heard ‘Round the World, 9. King of Competition (Ty Cobb), 10. Pine Tar Rhubarb, 11. A Whole New Ballgame (Internet Auction), 12. Pete Rose’s 4000th Hit, 13. Babe Ruth Shows Kids How It’s Done, 14. Babe Ruth, Newspaperman, 15. The Barnstormers (Bob Feller and Satchel Paige), and 16. Jackie’s Promise.
Upper Deck v. Miguel Flores, 21CV01182 (S.D. Cal. 2021).
Wheeler v. The Topps Company, 22CV02264 (S.D. N.Y. 2022).
Articles
Alan Walker, “Hey! Wow! Lookithat! Look at all that bubble gum!,” Calgary Herald, May 8, 1971: 77, 79, 81.
Daryl Slade, “Company is bringing back rookies,” Calgary Herald, September 13, 1992: 57.
Rod Hirsch, “Wagner card is heavy hitter for collectors,” The Courier-News (Bridgewater, New Jersey), June 29, 2000: 91.
“Wagner card sells for $1.265M,” The Daily Times (Salisbury, Maryland), July 19, 2000: 21.
Bill Wagner, “Topps, Upper Deck still in baseball as competitors axed,” Record Searchlight (Redding, California), July 24, 2005: 21.
Erik Schwartz, “Outta here: Bidders get Fleer assets,” Courier-Post (Camden, New Jersey), September 10, 2005: 9.
“’Cool Papa’ was no buffoon, sez lawsuit,” Daily News (New York, New York), November 23, 2007: 8.
Author’s Note: This is the third in a multi-part series that explores the legal backstories that have shaped (and continue to shape) the baseball card industry.
You may recall that Fleer and Donruss entered the baseball card market in 1981 after a Pennsylvania district court found that Topps and the Major League Baseball Players Association (“MLBPA”) had illegally restrained trade in the baseball card market. The court voided Topps’ player contract exclusivity clause and the MLBPA was ordered to enter into at least one additional licensing agreement “to market a pocket-size baseball card product, to be sold alone or in combination with a low-cost premium.” This freewheeling baseball card market was short-lived, however, once the Court of Appeals for the Second Circuit reversed the Pennsylvania district court’s order on August 25, 1981 and held the exclusive rights in Topps’ player contracts were legal and enforceable.
Ultimately victorious, Topps filed separate matters in Delaware (seeking to disgorge Fleer of its 1981 profits) and New York (seeking to recover Fleer’s profits for 1982/1983 claiming that Fleer’s team logo sticker was a “sham product”). Both cases were settled on confidential terms, though with a provision that allowed Fleer to continue selling baseball cards with team logo stickers.
The MLBPA Turns the Screws on Topps
Despite settlement between Topps and Fleer in the Delaware and New York matters, the case continued as to the counterclaim by the MLBPA against Topps, which the court astutely observed had likely been filed “in order to exert some pressure on Topps to abandon or at least modify the breadth of its interpretation of its player contracts.” Specifically, the MLBPA sought declaration that the word “alone” in Topps’ contracts did not include “low-cost non-confectionary items like Fleer’s team logo sticker.”
Marvin Miller, however, had admitted under oath in the prior Pennsylvania matter that Topps’ rights would be infringed by the sale of cards with a “completely valueless item” and that the MLBPA would have denied any proposal for baseball cards to be sold with a “trivial product.” Additionally, the court took issue with the absence of evidence regarding how much it cost to produce the stickers or “the extent, if any, to which the sticker motivates purchases” of Fleer wax packs. Topps argued the only way for Fleer to avoid an infringement claim would be to “make sure that the production cost of the [logo sticker] at least equal[ed] the production cost of the cards in the package.”
(L) 1982 Fleer logo sticker, (C) 1984 Fleer logo sticker front, (R) 1984 Fleer logo sticker back
However, the settlement of the underlying case between Topps and Fleer had altered the nature of the contract issue that the MLBPA wished to litigate. Although the precise terms were confidential, the settlement agreement required Fleer to increase the production cost of the logo sticker compared to the cost of the cards in each pack and specified that the logo sticker needed to be featured prominently on packaging and advertisement for the product.
Because Topps was satisfied that Fleer’s logo stickers no longer infringed on their rights to market cards alone, the court held that the MLBPA was seeking remedy for a package of cards (containing a “sham” sticker) that was no longer being marketed and that the MLBPA’s claim was nonjusticiable—it simply did not present an active controversy over which the court could preside. Accordingly, the matter was dismissed on August 25, 1986.
Turnabout is Fair Play
Separate litigation continued between Topps and MLBPA in New York. There, Topps alleged that the MLBPA had instigated a group player boycott; had attempted to monopolize Major League Baseball players’ publicity rights in violation of the Sherman Act; and had tortiously interfered with Topps contractual relationships with the players.
The compensation Topps offered for player contracts had remained unchanged since 1975—players received $5 upon signing the initial contract and received a $250 advance against his pro rata share of a royalty pool for every season he was a member of a major league club (and Topps used his picture on a card). All-Star pitcher Jim Kern described the deal with Topps rather pithily, “you get $250 from Topps, hell or high water, if your face is on a card.”
Marvin Miller had repeatedly attempted to negotiate better terms, but Topps ignored all demands—mainly because Topps’ individual contracting system left the MLBPA with little bargaining power. In fact, Topps had offered a lower royalty rate for exclusive rights than Fleer and Donruss had for non-exclusive rights prior to the 1982 season.
In an effort to increase their bargaining power, the board recommended that no player enter into or renew an agreement with Topps. Executive board member Buck Martinez acknowledged the MLBPA “simply wanted to negotiate a new contract with Topps.” The matter came to a head in January 1986, when Miller and Don Fehr distributed a memo that declared “the Executive Board has determined that it cannot, and will not recommend that any player enter into a new agreement with Topps, or renew or extend any existing agreement with Topps, pending the outcome of the discussions between the association and Topps.” Accordingly, few players signed renewals with Topps. The MLBPA thereafter presented Topps with a licensing offer of “commercially reasonable terms.”
Topps’ player contracts were set to expire with approximately 100 individual Major League players (a group that included most of the players deemed “superstars”) on December 31, 1986. Topps complained that it would be unable to produce a complete set of cards for 1987 if those contracts were allowed to expire.
In its opinion issued on August 1, 1986, the court found questions of fact regarding whether the MLBPA intended to obtain monopoly power. However, denial of Topps’ request for a preliminary injunction was a monumental win for the MLBPA, “Topps can easily avoid the irreparable harm it claims it will suffer by accepting the offer the MLBPA has made.” In other words, Topps could simply pay for the rights to renew those 100 players with expiring contracts, however unpalatable it was to Topps. Forced into the corner, a deal was struck that allowed Topps to market a full set in 1987 and beyond.
Though card manufacturers like Topps generally kept production numbers private, “one trade magazine estimated the tally at 81 billion trading cards per year in the late ‘80s and early ‘90s, or more than 300 cards for every American annually.”
In Re: Nolan Ryan Rookie Card
In April 1990, a 12-year-old collector walked out of the Ball-Mart card shop in Addison, Illinois with a beautiful 1968 Topps Nolan Ryan card. The owner of the shop, Joe Irmen, had been in the baseball card business for just a few weeks and had marked the card “1200” without a dollar sign, comma, or decimal point ($1200 was essentially top dollar for the card at the time). During a blitz of customers at the card shop, Irmen asked a clerk from his next-door jewelry store to help out. Unfortunately, that clerk had no knowledge about the value of the card and mistakenly sold it for $12.
After being inundated with requests for cheap Ryan rookie cards, Irmen discovered the $1200 card in his case had been sold at a steep discount—the receipt on file clearly showed the $12 purchase price.
The case was literally frontpage news in 1990.
Irmen initiated a manhunt and posted a sign in his store offering a $100 reward for information about the person who had purchased the card. Once the buyer (a minor) was identified, Irmen went to the child’s house, but no one answered the door. Thereafter unable to negotiate its return, Irmen filed a lawsuit in an effort to recover the card. The family, who felt the card was purchased fairly, filed a $60,000 counterclaim for defamation.
The matter was set for trial on March 5, 1991 in front of DuPage County Judge Ann Jorgensen. Before the proceedings began, it was revealed that a trade had been made the night before in which the 1968 Ryan card had been exchanged for a 1965 Joe Namath rookie and 1967 Tom Seaver rookie. The bombshell revelation resulted in a shouting match between the attorneys. Bailiffs had to clear the courtroom.
Once order was restored, the case was continued and eventually settled by way of the parties agreeing to have the card auctioned off for charity. On June 21, 1991 the card was sold for $5000, and the proceeds split between the parties to be donated to charities of their choice.
Cutting Cards: A Cautionary Tale
In what may qualify as the original “cart art,” Dad’s Kid Corporation produced a set of “Tri Cards” in 1992 that were assembled using three identical baseball cards issued by Donruss, Fleer, Score, or Upper Deck. The top two cards were die-cut such that only the body of player remained. Those two pieces were then stacked and glued atop an uncut card to create a neat 3-D effect. Each card was encased in a plastic box and sold individually or in a two-pack, packaged such that each card was visible to potential buyers.
Front and back of Wade Boggs Tri Card, constructed from three 1991 Upper Deck cards.
The owner of Dad’s Kid Corporation, Christopher Kamar, had struck deals with Toys R Us, F.A.O. Schwartz, Spencer Gifts, and other retailers to sell his Tri Cards. Almost immediately, the Tri Cards were so popular that Dad’s Kid had to run three shifts of 100 assemblers per shift just to meet demand. In fact, its initial shipment to Toys R Us was so successful, Dad’s Kid had a reorder on the table worth upwards of $20 million when Upper Deck, Score, Leaf, and the MLBPA filed coordinated lawsuits in New York and California seeking to stop Dad’s Kid from selling its Tri Card products. The respective lawsuits alleged that any modification of existing baseball cards, without prior written permission, violated trademark and copyright law.
For its part, Dad’s Kid had undertaken a thorough legal analysis before it began the manufacturing process and was operating under a good-faith belief it was not infringing on any rights; it was simply using cards purchased legally on the secondary market. Moreover, the company posted an explicit disclaimer on each box alerting consumers it was not claiming any rights with respect to the cards and was otherwise not affiliated with any of the card manufacturers, MLB, or the MLBPA.
In the New York case, the MLBPA moved for an injunction asking the court to stop Dad’s Kid from selling Tri Card products. The district court refused, citing the “first-sale doctrine” in a ruling issued on November 12, 1992:
“The fact that an enormous secondary market exists for baseball cards and baseball card derivative works leads me to conclude on this record that baseball players have little if any continuing publicity rights with respect to the use and reuse of their pictures on cards by subsequent purchasers and sellers of duly licensed baseball cards following a perfectly proper first sale into commerce for which the players get a royalty.” Effectively, the players did not have the right to control what was done with the cards after the initial sale and had no claim for any additional compensation. On the heels of this victory, Dad’s Kid announced its Tri Cards would be back in 1993.
The lawsuits rolled on, however, and in April 1993 the New York case was consolidated with the California matters to continue there. Unfortunately for Dad’s Kid, the California district court did not agree with (and was not bound by) the New York first-sale ruling and instead issued a permanent injunction on August 12, 1994 that prohibited Dad’s Kid from producing any further Tri Cards. The court further ordered that Dad’s Kid reimburse the plaintiff card manufacturers and MLBPA over $1 million collectively in attorneys’ fees and costs.
Dad’s Kid appealed and the case was eventually dismissed on March 8, 1996, pursuant to a confidential settlement.
Johnny Bench Hit by his Own Pitch
Sports cards and memorabilia sales continued to soar in the 1990s and quickly became a fixture on shop-at-home television stations. This format often preyed on those unfamiliar with the actual value of items and otherwise created an environment where even sophisticated collectors might get caught up in the frenzied sales tactics.
Hall of Fame catcher Johnny Bench appeared on the Home Shopping Network on August 5, 1993 to hawk baseballs he had signed. In typical shop-at home fashion, viewers were initially told the autographed balls were worth $129. They claimed the baseballs would sell out at $99.95. Finally, the Bench-signed baseballs were dropped to the low, low price of $49.95.
Unfortunately for the Home Shopping Network and Bench, however, the New York Department of Consumer Affairs had started to monitor the values claimed for sports card and memorabilia. With the help of a trusted price guide, they determined that an autographed Johnny Bench baseball was worth $35, only 70% of its final “sensational” sales price.
The first celebrity endorser to face such charges in New York, Bench was personally cited for misrepresenting the value of his own signature on a ball. Bench was hit with a $5000 fine in December and Home Shopping Network was ordered to pay $30,000.
Poking the Bear
Seeking to “put the fun back in baseball card collecting,” Cardtoons readied a 1993 release of parody baseball cards intended to poke fun at the egos and greed in the game (and the world) with an issue that was equal parts Wacky Packages, Garbage Pail Kids, and traditional trading cards. The set of 130 cards lampooned current players, retired legends, Michael Jordan (the baseball player) and political figures like Bill Clinton.
Clockwise: Raging Tartabull (No. BB-15), The Say What Kid (No. 40), Treasury Bonds (No. 8), Slick Willie (No. S-3).
Cardtoons tapped free agent sportswriter Mike Sowell to create the players’ alter egos and write the card backs. Caricatures by Dayne Dudley and Dave Simpson were deftly rendered so that each individual was recognizable without including team logos that might run afoul of MLB’s rights. In fact, even the team names were changed to cheeky monikers (e.g., Orioles/Bore-Ioles and Cubs/Scrubs). The glossy cards were distributed in foil packs along with chase cards, foil versions, insert sets, puzzles, and redemption cards intended to skewer the baseball card industry, itself. Cardtoons’ initial run called for some 13 million cards to be printed.
Cardtoons first advertised their cards in the May 14, 1993 issue of Sports Collector Digest. This caught the attention of the MLBPA (who had not issued a license to Cardtoons to use the likenesses of the players depicted). The MLBPA sent Cardtoons a letter on June 18 asserting that its product violated the “valuable property rights of MLBPA and the players” and threatened legal action if any cards of active baseball players were sold. A similar letter was sent to the printing company, who immediately halted production.
Just days after receipt of the cease-and-desist letter, Cardtoons filed a lawsuit against MLBPA seeking a declaration that it could sell parody baseball cards without license from the MLBPA pursuant to First Amendment protection. At a subsequent evidentiary hearing, Cardtoons revealed it was sitting on nearly 4000 cases of product ready to ship. The MLBPA claimed it would never have licensed a parody set that poked fun at individual players (and also admitted to a “glut” in the market for baseball cards!).
The district court considered that parodies (such as political cartoons) were generally protected by the First Amendment and “deserving of substantial freedom—both as entertainment and as a form of social and literary criticism.” The issue the court wrangled with, however, was whether “one can sell a parody” and ultimately decided that Cardtoons could not profit from the players’ likenesses and fame. An order was entered that prohibited Cardtoons from selling cards containing the likenesses of active Major League ballplayers (101 of the 130 cards in the set). Damages were denied because none of the cards had actually been sold at the time the decision was rendered on November 23, 1993.
The Cardtoons set eventually saw the light of day, however, because raunchy rap group 2 Live Crew sampled a Roy Orbison song without permission. In a case that went all the way to the U.S. Supreme Court, 2 Live Crew prevailed in a ruling handed down on March 7, 1994 in which it was held that a commercial (i.e., made specifically for sale) parody song could constitute fair use.
Cardtoons sought reconsideration in light of the 2 Live Crew ruling and on October 25, 1994, the district court reversed its prior decision, this time finding it reasonable that Cardtoons would seek compensation for its efforts and recognized that “parodists will seldom get permission from those whose works are parodied. Self-esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee.” The court ultimately ruled that that right of publicity did not “confer a shield to ward off caricature, parody and satire” and that the Cardtoons cards were protected by the First Amendment, regardless of their commercial nature.
Finally clear to distribute their cards, Cardtoons released the set in 1995—the product’s overarching message elegantly punctuated by intervening strike and cancellation of the 1994 World Series. While the original version of cards was set to be “90 percent positive in the way they portrayed players,” Sowell’s opinion soured as the court battle raged. He decided there was “no need to be nice” and satirized the players as he saw fit.
Front and back of Egotisticky Henderson (No. 35).
The appeal filed by MLBPA was denied in 1996, the Tenth Circuit ruling succinctly that “the last thing we need, the last thing the First Amendment will tolerate, is a law that lets public figures keep people from mocking them.” But for the protracted lawsuit, Cardtoons had plans to issue card sets for other sports.
Mickey Mantle v. Upper Deck
On February 1, 1993 Mickey Mantle entered a three-year contract that gave Upper Deck “exclusive worldwide rights to use and reuse. . .Mantle’s name (as well as any nicknames), image, likeness, artists’ portrayal of image or likeness, visual representation, signature (or facsimile thereof), photograph, voice, biography, statistics and endorsements” for baseball cards and associated promotional materials. Upper Deck’s 1993 Mantle issues were relatively modest, including several “All-Time Heroes” multiplayer cards and a “Then and Now” card featuring a young Mantle aside a holographic image an older Mantle wearing an Upper Deck jersey.
In 1994, Upper Deck produced a slew of Mantle cards, including one that was personally signed by both Mantle and Ken Griffey Jr. That year, Topps also issued a Mantle card as part of its Archive set, styled as a 1954 Topps card and clearly indicating on the reverse that it had rights to issue the card per an agreement with Upper Deck. (Mantle was signed with Bowman exclusively in 1954 and 1955 and Topps had not issued Mantle cards those seasons.)
Though labeled as a Topps Heritage issue, this card (No. 259) was actually distributed as an insert card in packs of 1994 Upper Deck All-Time Heroes because Upper Deck held exclusive rights.
Despite Upper Deck wholeheartedly issuing a multitude of Mantle cards in 1994, the company reportedly soured on the deal after Mantle publicly admitted he had undergone alcohol rehabilitation. Mantle filed a lawsuit late in the year claiming that Upper Deck had threatened to rescind the contract unless he agreed to take a pay cut. Upper Deck admitted, “discussions regarding restructuring Mr. Mantle’s contract were the product of his disability and other performance-related concerns.” Upper Deck claimed Mantle had “failed to live up to his commitments as effective spokesperson for the company.”
In February 1995 the parties agreed to participate in arbitration (an alternative dispute resolution process in which three arbitrators—not a jury or judge—decide the case and amount of damages, if any). Despite the ongoing dispute, Upper Deck went ahead and issued a set of metallic Mickey Mantle baseball cards in 1995.
Somewhat ironically, Upper Deck sued several parties in a separate action on February 14, 1995 claiming that those companies could not sell items autographed by Mantle during the term of Upper Deck’s exclusive contract with Mantle. One of those companies, Score Board, prevailed because its contract with Mantle specifically provided it could sell off remaining merchandise after that contract expired on January 31, 1993. At the same time, Score Board had separately sued Upper Deck in New Jersey claiming that Upper Deck was improperly selling autographed Ken Griffey Jr. signatures that Score Board had exclusive right to sell.
On May 28, 1995, Mantle was hospitalized and underwent a liver transplant on June 8. After Mantle passed away on August 13, 1995, collectors scrambled to acquire Mantle items and Upper Deck, alone, sold more than $500,000 worth of Mantle memorabilia on the heels of his death. Mantle’s (estranged) widow Merlyn and personal attorney Roy True continued to prosecute the Upper Deck case on behalf of Mantle’s estate.
On May 22, 1996 the arbitration panel awarded the estate nearly $5 million (approximately $9.7 million in today’s dollars), which included actual damages for having sold Mantle merchandise without a license to do so, punitive damages, and attorney’s fees. Upper Deck sought to have the award vacated, but their efforts failed, and the lawsuit was closed in April 1997.
Orel Hershiser Adds Another Shutout
Orel Hershiser is probably best known for his amazing 1988 pitching performance in which he tossed 59 consecutive shutout innings. A decade later, Hershiser sued Vintage Sports Plaques (“Vintage”) for infringement of licensing and publicity rights after learning that Vintage was selling Hershiser’s baseball cards affixed to wooden plaques and labeled with his name. (Deluxe plaques included a “clock with a sports motif.”) The Hershiser cards used by Vintage were purchased from licensed manufacturers and framed without alteration. Vintage, itself, had no licensing agreements with any parties.
1989 Topps Record Breaker (No. 5) Wouldn’t this make an amazing clock?
Vintage argued that the “first-sale doctrine” was a complete defense to the publicity claims. The first-sale doctrine provides that “once the holder of an intellectual property right consents to the sale of particular copies. . .of his work, he may not thereafter exercise the distribution right with respect to such copies.” The court rightly recognized that its failure to apply the first-sale doctrine in the Hershiser case would “render tortious the resale of sports trading cards and memorabilia” and would have a chilling effect on the secondary market for trading cards. In fact, refusing to apply the first-sale doctrine here would essentially make it impossible for a child to sell a baseball card to a friend.
Ultimately, the court found that Vintage was merely reselling cards that it had lawfully obtained. “This is more appropriately classified as a case of an entrepreneur repackaging or displaying the trading cards in a more attractive way to consumers rather than a case of an opportunist using Plaintiffs’ names and likenesses to sell frames and clocks.” The appellate court affirmed and the plaintiff’s declined to pursue any further appeal to the U.S. Supreme Court. Hershiser was shutout.
An Ocean of Cards
Although the MLBPA had long been involved in baseball card-related disputes and litigation, the owners of the ballclubs had not been quite so active, perhaps because collecting money for the use of their trademarked logos and uniforms, while very lucrative, was not the lifeblood that licensing revenue represented for the MLBPA.
This changed in 1998, however, when Major League Baseball Properties, Inc. (“MLB”) learned that Pacific Trading Cards was in the process of manufacturing and distributing cards that depicted players in their MLB uniforms, despite MLB having refused to grant a license to Pacific for the current set. (MLB had authorized previous Pacific issues).
Pacific was fully licensed by the MLBPA and went forward with manufacture “either believing mistakenly that it would receive a license from MLB or not caring whether it would.” The MLB sued to stop Pacific from distributing their cards. The MLB’s request for a preliminary injunction was denied, inter alia, because the court felt that the inclusion of the logos or trademarks were only incidental to the depiction of the player and did not imply any sponsorship by MLB for the card.
An appeal followed by MLB and Pacific implored the court for permission to ship their cards immediately or the results would be financially ruinous. Ultimately, MLB and Pacific were able to reach a settlement and Pacific continued to issue sets of baseball cards through 2001.
Throughout the 1990s, card companies, like Pacific, continued to churn out nearly innumerable piles of cards. An exclusive license for Topps was on the horizon, but the fighting would continue in nearly every corner of the hobby.
To be continued…
Sources/Notes:
Cases
Fleer Corp. v. Topps Chewing Gum, Inc., 501 F.Supp. 485 (E.D. Pa. 1980). The only trading card product ever to outsell baseball cards was Wacky Packages in 1973-74. The court noted that the slab of gum weighed “4.30 grams” in 1978. Fleer had a net operating loss in 1978 and its net income (loss) was as follows: 1977—$346,621; 1976—$502,257; 1975—$720,274; 1974—($309,261); 1973—$382,354; 1972—$268,926; 1971—$148,494; 1970—($200,016). Roughly two thirds of baseball cards purchased are purchased by “heavy” buyers (i.e., those who purchase more than 200 cards per year.)
Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 658 F.2d 139 (3rd Cir. 1981). The number of players included in each licensing agreement varied. Some contracts, like those with Coca-Cola and Kellogg’s covered all the players, while others included “not less than 72, and not more than 300.”
Fleer Corp. v. Topps Chewing Gum, Inc., cert. denied, 455 U.S. 1019 (1982).
Topps Chewing Gum, Inc. v. Fleer Corp., 547 F.Supp. 102 (D. Del. 1982).
Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F.Supp. 785 (E.D.N.Y. 1983). Tetley Tea manufacturer sued Topps for including “Petley Flea Bags” in its Wacky Packages release. Approximately 200,000 of the sticker was issued between 1975 and 1977 and Topps had produced approximately 400,000 more of the sticker for its 1982 release. Topps agreed to discontinue distribution of the offending sticker once the printed run was fully depleted.
Topps Chewing Gum, Inc. v. Major League Baseball Players Association, 641 F.Supp. 1179 (S.D. N.Y. 1986) Topps paid royalties to the MLBPA computed at 8% of Topps’ first $4 million in net sales and 10% of Topps’ net sales in excess of $4 million.
Topps Chewing Gum, Inc. v. Fleer Corp., 799 F.2d 851 (2nd Cir. 1986). The MLBPA was granted intervention as a defendant in Topps case against Fleer; Topps had not sued the MLBPA directly in this action. The matter was remanded to the district court to be dismissed without prejudice, which would have allowed the MLBPA to have filed a new lawsuit against Topps, if they desired. No such suit was filed.
Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F.Supp. 1031 (N.D. Ga. 1986). The makers of Cabbage Patch Kids sued Topps for copyright and trademark infringement caused by the sale of its Garbage Pail Kids stickers. Between May 1985 and August 1986, Topps had sold more than 800 million stickers. Before issuing the Garbage Pail Kids product, Topps had unsuccessfully tried to obtain a license for Cabbage Patch Kids. Topps eventually agreed to a confidential cash settlement and design changes to the cards. “Cabbage Patch Dolls are Victorious Over Garbage Pail Kids.” The Columbus (Georgia) Ledger, February 4, 1987: 8.
Fleer Corp. v. Topps Chewing Gum, Inc. 539 A.2d 1060 (Del., 1988). “Restitution serves to ‘deprive the defendant of benefits that in equity and good conscience he ought not to keep, even though he may have received those benefits honestly in the first instance, and even though the plaintiff may have suffered no demonstrable losses.’”
Cardtoons v. Major League Baseball Players Ass’n, 838 F. Supp. 1501 (N.D. Okla. 1993). The six companies with MLBPA licenses to sell baseball cards at the time were producing an estimated $1.3 billion in annual sales. Caricature was defined as “the deliberate distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect.”
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The District Court had granted summary judgment for 2 Live Crew, holding that its song “Pretty Woman” was a parody that made fair use of the original Roy Orbison song “Oh, Pretty Woman.” The appellate court reversed because they felt 2 Live Crew had “taken too much” of the original for their own use and that the song constituted a commercial use. The Supreme Court subsequently reversed and remanded holding that 2 Live Crew’s commercial parody might qualify as fair use.
Cardtoons v. Major League Baseball Players Ass’n, 868 F. Supp. 1266 (N.D. Okla. 1994).
Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 39 USPQ2d 1865 (10th Cir. 1996). “Because Cardtoons’ First Amendment right to free expression outweighs MLBPA’s proprietary right of publicity, we affirm.” The court noted that royalties from baseball cards generated over 70 percent of the MLBPA’s licensing revenue.
Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Texas, 1997). Mantle sued The Upper Deck Company and Upper Deck Authenticated, Ltd. These related companies are referred to collectively as “Upper Deck” for the reader’s benefit. Judgment confirmed for Estate of Mickey Mantle against defendants in the principal amount of $2,725,258.00, exemplary damages in the amount of $1,000,000.00, attorney’s fees in amount of $1,241,628.00, prejudgment interest at 10% per year from the date of the award until the date of judgment, and post-judgment interest at 5.81% per year.
Upper Deck Authenticated, Ltd. v. CPG Direct, 971 F.Supp. 1337 (S.D. Cal. 1997). Defendants included Shop at Home, Inc., CPG Direct, B&J Collectibles, William Rodman, Kenneth Goldin, Classic Games, Inc., Catch a Star Collectibles, Inc., The Score Board, Inc., Score Board Retail Corporation, The Score Board Holding Corporation.
The Score Board, Inc. v. Upper Deck Co., 959 F.Supp. 234 (D. N.J. 1997).
Allison v. Vintage Sports Plaques, 136 F.3d 1443 (11th Cir. 1998). Hershiser had otherwise earned $230,000 from licensing and endorsement deals from 1993 through 1996. Stockcar driver Cliff Allison’s widow Elisa was also a plaintiff in the case.
Major League Baseball Properties, Inc. v. Pacific Trading Cards, Inc., 1998 WL 241904 (S.D. N.Y. 1998).
Major League Baseball Properties, Inc. v. Pacific Trading Cards, Inc., No. 98-7700 (2nd Cir. 1998).
Cardtoons v. Major League Baseball Players Ass’n, 182 F.3d 1132 (10th Cir. 1999); Cardtoons v. Major League Baseball Players Ass’n, 208 F.3d 885 (10th Cir. 2000); Cardtoons v. Major League Baseball Players Ass’n, 335 F.3d 1161 (10th Cir. 2003). Cardtoons tried, and failed, to collect monetary damages from the MLBPA.
Articles
Paul Lomartire, “Baseball Cards and the Snaps of Spring,” The Tampa Tribune, April 4, 1982: 133.
John Leptich, “Boy sued over baseball card,” Chicago Tribune, November 10, 1990: 1.
“Nolan Ryan rookie card snafu headed to court,” The Tribune (Scranton, Pennsylvania), March 6, 1991: 12.
John Leptich, “Baseball card returns, trial goes on,” Chicago Tribune, March 8, 1991: 49.
John Leptich, “Charity delivers winning pitch in baseball card suit,” Chicago Tribune, April 23, 1991: 47.
John Leptich, “Ryan card brings $5000 and another flap,” Chicago Tribune, June 22, 1991: 41.
“Upper Deck Sues Rival Card Firm; Claims Trademark Infringement,” North County Times (Oceanside, California), August 2, 1992: 31.
Anne Michaud, “Small Baseball Card Firm Takes Hit from Big Leagues,” Los Angeles Times, October 22, 1992: 265.
“For the Record,” Los Angeles Times, October 23, 1992: 195. Dad’s Kid filed a counterclaim for $955 million.
Jim Bullard, “More than kids’ stuff,” Tampa Bay Times, January 1, 1993: 96.
Owen Canfield, “ML Players Association not amused by ‘Cardtoons,’” Central New Jersey Home News (New Brunswick, New Jersey), July 9, 1993: 24.
“Bench’s ink pitch draws ire,” Herald and Review (Decatur, Illinois), October 8, 1993: 30.
“Mantle files lawsuit against Upper Deck on contract balk,” Logansport (Indiana) Pharos-Tribune, November 4, 1994: 12.
Jay D. Preble, “Leagues fighting unlicensed cards,” Tampa Tribune, November 12, 1994: 24.
Gene Collier, “How do you spell egomaniacal?,” Pittsburgh Post-Gazette February 12, 1995: 25.
John Mabry, “Satire cards aren’t a hit with big-league players, Kansas City Star, April 16, 1995: 44.
Christopher Kamar, telephone interview with author, October 21, 2022.
Michael Sowell, telephone interview with author, November 5, 2022.
Special Thanks
Special thanks to Jason Schwartz for reviewing this article and offering helpful suggestions.
Appendix 1
Tri Cards Checklist (Cards are not identified with a Tri Cards set number or date of issue by Dad’s Kid Corp. Cards are individually numbered to 50,000. Production was halted before 50,000 of any card was manufactured and no records remain regarding the actual number produced of each Tri Card. Additionally, no checklist of Tri Cards manufactured exists, so the following list may be incomplete.)
The good memories include attending my first major league game at a packed Fenway Park on September 24, 1961, with my father hoping to see Roger Maris hit home run number 60 to tie Ruth. I also got to see Mantle play at Yankee Stadium when my aunt and uncle took me to a daytime double header in 1963. As good as those memories are, the one that I can recall most vividly is from a close encounter with Mick at the end of his career in 1968. On that day Mantle, only an arm’s length away, sat behind a closed window on the team bus outside Fenway Park and ignored my pleas for an autograph.
Besides the trip down memory lane, the recent uptick in Mantle activity also caused me to splurge on a piece of Mantle memorabilia from 1954 with a Topps tie-in that I have had my eye on for some time.
Since this piece of memorabilia involves baseball cards, I did some research on interpretations of Topps 1954 cards (With Bowman having signed Mantle to exclusive card contracts in 1954 and 1955 kids had to wait until 1956 for number 7 to appear on a Topps card again).
There are plenty of roll your own “Topps” 1954 Mantle cards available, some with interesting backstories, and the number continues to grow with two additions in 2021.
Upper Deck 1994 – All-Time Heroes Card
In 1994 Topps released the 1954 Archives set that included nice reprints of the original ’54 cards on thick glossy card stock along with “new” cards of players that did not appear in the original set. Topps did not release a “new” Mantle card in 1994, but Upper Deck did release one as part of its All-Time Heroes set since it had an exclusive contract with Mickey. The Upper Deck ’54 is considered a “short print” and current prices on eBay range from $40 – ungraded to $149.99 – graded.
Topps issued 1954 style Mantle cards in 2007, 2011 and 2012. This year they have also released two more 1954 style cards. One as part of the Project70 series and the other as part of the 2021 Mickey Mantle Collection set.
Topps 2007 Topps 2011TTopps 2012
The image on the front of the card Topps 1954 style Mantle for the 2021 Mickey Mantle Collection set is derived from the William Jacobellis black and white photo of Mantle from the 1951 season. This photo was also the starting point for the front of 1952 Bowman Mantle card.
Topps 1954 Style Mantle Card from the 2021 Mickey Mantle Collection set – Front
Unfortunately, the Topps research staff were asleep at the switch and the back of the cards display Mantle’s 1955 stats instead of his 1953 stats. Does this make it an “error” card?
Topps 1954 Style Mantle Card from the 2021 Mickey Mantle Collection set – Back
The Topps Project70 1954 style Mantle was created by CES.
Topps Project70 1954 Style Mickey Mantle by CES
Bob Lemke – 1954 Topps-style Mantle Card
My favorite 1954 Topps-style Mantle card is the one designed by Bob Lemke, the founding editor for the Standard Catalog of Baseball Cards, who passed away in 2017.
In one of his blog posts that can be found here, Bob provides details on the origins of all the elements used in his Mantle card.
1954 Sports Illustrated Mickey Mantle
I have been looking for a reasonably priced – Sports Illustrated – second issue – in good condition for some time and recently found one on eBay. I knew that the second issue contained a foldout section with a “missing” 1954 Mickey Mantle card.
Foldout of Yankees Cars from 1954 Sports Illustrated Issue #2
Sports Illustrated used a beautiful black and white photo taken by George Silk for the card. The same photo was also used by Sports Illustrated for the cover of its August 21, 1995, issue that was published days after Mantle passed away. Weakened by the onslaught of new Mantle material released in 2021, I clicked on the Buy It Now button and purchased the 1954 Sports Illustrated issue.
1954 Sports Illustrated Mickey Mantle Card – Front
1954 Sports Illustrated Mickey Mantle – Back
Since they don’t teach this style of writing in journalism classes anymore, I will close with an excerpt from the Sports Illustrated article that accompanied the foldout of the cards.
“Topps Chewing Gum, Inc., one of the leading gum-and-card concerns, issues an average of 15 cards per team, and this average holds for the Yankees. The 15 Yankee cards in Topps’s 1954 series are reproduced front and back on color on the following foldout. They are, of course, prize items. But SPORTS ILLUSTRATED has added prize items of its own to fill out the Yankee squad to full strength: black-and-white “cards,” front and back, of those Yankees for whom Topps – for one good reason or another – did not print cards. The result is a collector’s dream: 27 Yankees, a collection almost beyond the highest hopes of the most avid gum-chewing, card-collecting boy.”
At the tail end of the “junk wax” era in 1995, Upper Deck—in tandem with a company called Metallic Impressions—produced a set that exemplifies the excess and weirdness of the era. Taking advantage of the hoopla surrounding Michael Jordan’s attempt to become a baseball player, Upper Deck released a set of five Jordan “cards” on steel stock. The five-card set is contained in a metal box with a detachable lid.
The “Michael Jordan Tribute Set” is rather conventional in design. Paper fronts and backs are adhered to the gold embossed steel. Action photos grace the fronts, with narratives of Michael’s baseball odyssey contained on the back along with another photo. The cards are numbered MJ1-MJ5.
The first card features a Little League photo of Michael Jordan, with the back providing the inspiration and rationale for retiring from basketball and trying a sport he last played in high school.
Card MJ2 is about the White Sox sending Michael to the Arizona Fall League after the Birmingham Barons AA season ended in September of 1994. By the way, he got off to a fine start at bat and finishing with a respectable .252 average.
The final three cards are devoted to hitting, baserunning and fielding. The text details Jordan’s hard work and continued improvement.
Of course, Jordon decided to end his pursuit of a baseball career in 1995 and the bottom fell out of the baseball card market. The set I have is from the markdown section at Target, where my wife or I purchased it for my son in the late 1990s. Last summer, I rediscovered the set buried within a storage bin.
This set is an example of the prevailing philosophy of the “junk wax” era; throw stuff at the wall and hope something sticks. In the case of the “Michael Jordan Tribute Set,” it fell clanking to the floor.
“You better let Michael out of the can before he suffocates to death!”
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.
As a baseball card collector and enthusiast, I feel that I am living through the Renaissance era of baseball card art. My Twitter feed is filled daily with spectacular images of cards from many artists that are working with a variety of mediums to produce their own interpretations of what cards of past and present players should look like. A number of these artists are also using their artwork to support charitable causes.
There was certainly an undercurrent of fine baseball card artwork being produced long before 2020, but the Topps Project 2020 brought to the surface a tidal wave of beautiful cards from a wide variety of artists.
Was Project 2020 an original idea or was it a variation on a project from the Junk Wax era? A case can be made that Project 2020 can be linked back to the All Star FanFest Cards from 1994 to 2000.
The two projects are similar in that they have multiple artists and designers coming up with unique cards of a single player and they also share some common player subjects – Roberto Clemente (1994 – Pittsburgh FanFest), Nolan Ryan (1995 – Dallas FanFest), and Jackie Robinson (1997- Cleveland FanFest).
The other player subjects for the All Star FanFest sets were Steve Carlton (1996 – Philadelphia FanFest), Lou Brock (1998 – St. Louis FanFest), Carl Yastrzemski (1999 – Boston FanFest), and Henry Aaron (2000 – Atlanta FanFest).
Ray Schulte was responsible for the All Star FanFest cards from 1994 to 2000. At the time he was working as an event consultant for MLB Properties, and cajoled some of the major baseball card producers of the 90’s to design and distribute unique cards of an iconic player from the city that was hosting the All Star Game. To obtain the cards a fan had to redeem 5 pack wrappers of any baseball product of the manufacturer at their FanFest booth.
I was introduced to the cards when I attended the All Star FanFest event held at the Hynes Convention Center in Boston in 1999. I attended the event with my family and upon learning about the cards from a Fleer representative sent my two kids on a mission to purchase 5 packs of cards produced by each of the four manufacturers from dealers at the event so we could exchange the wrappers for the Carl Yastrzemski cards designed just for the 1999 FanFest.
Now let’s take a closer look at the All Star FanFest sets which feature players that overlap with the Topps 2020 Project.
1994 All Star FanFest Set – Roberto Clemente
1994 was the first year that FanFest cards were issued and with Pittsburgh hosting the All Star Game the player subject was Roberto Clemente. Topps, Fleer, Upper Deck, Donruss, and Pinnacle issued cards for the event.
Fleer and Topps decided not to mess with perfection and produced cards that were essentially reprints of Clemente’s 1955 Topps rookie card and his 1963 Fleer card with 1994 All Star logos. Upper Deck issued a metallic looking card of Clemente that contains career stats and accomplishments on the front. Upper Deck would utilize the “metallic look” design for player subjects for the next 6 years. As you would expect, an image of a Dick Perez painting of Clemente is on the front of the Donruss Diamond King card.
1995 All Star FanFest Set – Nolan Ryan
With the 1995 All Star Game being held in the home park of the Texas Rangers the logical choice for the player subject for the FanFest cards was Nolan Ryan who retired in 1993.
The 5 card manufacturers who designed cards for the 1994 All Star FanFest also produced cards for 1995 All Star FanFest event held in Dallas.
Topps produced a re-imagined 1967 Rookie card of by eliminating the Jerry Koosman photo and enlarging the Nolan Ryan image to fill the front of the card. In microscopic print, Nolan’s complete major league pitching record is on the back of the card. Steve Carlton got the same treatment a year later when Topps enlarged his airbrushed 1965 photo to produce a new version of his Rookie card. Fleer issued an Ultra Gold Medallion version of a Ryan card. Upper Deck continued with its metallic design for a Ryan card. The Pinnacle card featured a Nolan Ryan painting and Donruss produced a Tribute card.
Get out the magnifying glass. Back of Topps 1995 Nolan Ryan All Star FanFest card.
1997 All Star FanFest Set – Jackie Robinson
With the All Star Game 1997 marking the 50th year of his major league debut, Jackie Robinson was the correct selection for the player subject for the 1997 set.
Topps released a reprint of his 1952 card with a All Star logo on the front and his complete major league batting record on the back. Leaf distributed a reprint of Jackie’s 1948 “rookie” card with small All Star Game logo in the upper right-hand corner. Fleer choose a nice posed photo of Jackie looking like he is going to tag out the runner for its Ultra card. On the back of its Tribute card, Pinnacle included a great action shot of Robinson coming in head-first at home plate with the catcher about to make a tag. The photo leaves you wondering – Which way did the call go? Upper Deck once again used a metallic design for its Jackie Robinson FanFest card.
Other All Star FanFest Cards
1997 All Star FanFest Larry Doby Cards
Depending on your definition of a complete set, collectors should be aware that Fleer and Pinnacle released Larry Doby cards to coincide with the All Star game being held in Cleveland. Included below are photos of the Fleer Ultra card and the Pinnacle 3-D Denny’s card.
2000 Henry Aaron FanFest Error Card
For some reason Topps decided not to make a reprint of Aaron’s 1954 Rookie card part of the official 2000 All Star FanFest set. Instead, Topps designed a unique card that featured a spectacular color photo of Aaron in a posed batting stance. Topps did however print some of the 1954 Rookie reprints with an All Star Game logo. These Aaron Rookie reprints are considered “error” cards.
Costs
Almost all the All Star FanFest sets can be purchased for under $12 on eBay. The exception is the 1994 Roberto Clemente All Star FanFest set. Each manufacturer produced 15,000 cards for the event. Less than 10,000 of each card were distributed at FanFest. The rest of the cards were destroyed. A Clemente set will set you back about $60.
Here is a collecting goal virtually nobody has, whether because the club includes some ridiculously expensive cards or because it includes so many players of near zero interest to the modern fan. At the time I type these words, the club currently has 925 players plus one active player, Jackie Bradley, Jr., sitting on 99. [UPDATE: He did it!]
Of course, that’s if we’re talking about today’s collector in 2021. How would the 100 HR Club look to a collectors from days of yore?
T206 and the 100 HR Club
We’ll start in 1911, which is the final year of the famous 1909-11 America Tobacco Company “monster” known as T206. We were still firmly in the Deadball era, but the 100 HR Club already had eight members.
Interestingly, none of the players were still active during the span of the set’s release. Fortunately, the 100 HR Club collector wouldn’t strike out entirely, thanks to Hugh Duffy’s inclusion as White Sox manager in the set.
Even better, you as the reader now know the answer to a trivia question that will stump your friends: “Which of the subjects in the T206 set had the most career home runs at the time of the set’s release?”
1933 Goudey and the 100 HR Club
Time travel back to 1933, and the club becomes much more interesting. By season’s end, the club has swelled to 48 members, more than half (26) still active at the time of the set’s release.
Ignoring the fact that the set included multiple cards of certain players, let’s take a look at which 100 HR Club members a 1933 Goudey collector could attain that year.
Of the top 11 names on the list, all nine active players were present in the 1933 Goudey set. The only absences were Cy and Ken Williams, who were a few years removed from their Major League playing careers.
Making our way through slots 12-25 on the list, only five of the players were still active in 1933. Of these, four had cards in the set: Ott, Hartnett, Herman, and Terry. Chick Hafey was not only still active but an (inaugural) All-Star that year. Still, he did not appear in a Goudey set until 1934. (If you’re looking for more trivia, he and Oral Hildebrand are the only 1933 All-Stars not present in 1933 Goudey.)
The next four players on the HR list, Tillie Walker, Jimmy Ryan, Ty Cobb, and Tris Speaker were all retired for either 5, 10, or 20 years. However, Speaker landed a card in the Goudey set as a part owner of the American Association’s Kansas City Blues. (And of course die-hard Goudey fans could nab the Cobb from the Sport Kings set.)
Following Speaker, the next seven players in the 100 HR Club were all active in 1933. However, Don Hurst would have to wait until the 1934 set for a Goudey card.
Continuing down the list we hit a streak of old-timers (Brouthers, Meusel, Duffy, Tiernan) before landing on a run of three straight 1933 Goudey cards.
Of the final five members of the 100 HR Club, the two still active in 1933 each had cards in the set.
By the way, can I right now declare Berger’s 1933 Tattoo Orbit card a work of art?
Adding an angle I’ll develop more fully in my treatment of 1952 Topps, I’ll note that there were five Negro League players with 100+ home runs by 1933: Oscar Charleston, Turkey Stearnes, Mule Suttles, Willie Wells, and John Beckwith. All five were still active in 1933, but none appear in the Goudey set.
1952 Topps and the 100 HR Club
By 1952 the home run was most definitely “a thing” so it’s not surprising that the 100 HR club more than doubled it ranks from 48 members less than two decades earlier to a robust 116. Here are the 27 who were still active in 1952.
Collectors with knowledge of the 1952 Topps set will recognize right away at least a couple of players who definitely were not in the set: Ted Williams and Stan Musial. The same would be true of Ralph Kiner and Charlie Keller, leaving the Topps set with 23 of the 27 players listed.
However, the 1952 Topps set also included 6 managers and 11 coaches, two of whom (sort of) were 100 HR Club members.
The more famous 100 HR Club member-coach in the set, 30th on the list with 202 home runs, was Bill Dickey of the Yankees.
Then it’s up to you if you want to count the other. Checking in at 39th on the list is Sam Chapman, with 180 home runs. Strictly speaking, he does not make the set’s checklist. However, his photograph was the source of Cincinnati coach Ben Chapman’s card. (And if the name is familiar, Ben Chapman was the manager that was a total a-hole to Jackie Robinson in 42, not to mention real life.)
For completeness, I also checked to ensure that 100 HR Club members who retired in 1950 or 1951 (e.g., Joe DiMaggio) did not somehow eke out a spot in the set, which they did not.
As I eagerly await the inclusion of Negro League records and statistics into the MLB record book, I’ll simply note that Seamheads currently shows nine players with 100+ home runs from 1920-48, the period MLB will be recognizing. I haven’t done the extra work to examine whether or not all of these home runs “will count.” That said, none of these nine players were included in the 1952 Topps set.
Nonetheless, the inclusion of Negro League records does appear to add a player. By the end of the 1952 season, Monte Irvin had 43 National League homers and (per Seamheads) 61 Negro League homers for a total of 104.
There are also two players who come very close. Luke Easter lands at 97, counting 11 Negro League roundtrippers, and Jackie Robinson lands at 96, counting 4 taters from his days as a Monarch.
1989 Upper Deck and the 100 HR Club
Though it sometimes feels wrong to type, I regard the 1989 Upper Deck set as the fourth iconic baseball card set of the 20th century, so this is where I’ll conduct my final analysis.
The 100 HR Club has now swelled to 442 (!) members, a gigantic number compared to 1952 but still less than half the club’s size today. Of this number, 56 were active in 1989. As the Upper Deck set, counting its high series, had 800 cards, I will simply assume for now that all 56 of these players were represented in the set. (Let me know in the comments if you know of any exceptions.)
Still, this would not be the whole story for the 1989 Upper Deck set. For example, Dave Winfield did not play in 1989 but nonetheless registered a card. Fittingly, the card shows him just chillin’.
“Career cappers” were also in vogue by 1989, so I also took a look at player’s who retired following the 1988 season. One such player in the set was Don Baylor, whose card back appears provides a fitting farewell to a great career.
Ditto Larry Parrish who seems to be handing over the reins to new 100 HR Club member Mark McGwire.
And finally, Ted Simmons and Bob Horner, who are each shown on the team more commonly associated with the other.
Summary
Of the four sets profiled, the 1933 Goudey set featured the largest percentage of 100 HR Club members. Officially (at the time I type this), it included 25 of 48 100 HR clubbers, or 52%. Including Negro League records (though my data may not ultimately match what MLB recognizes), the numbers change to 25 out of 53, or 47%.
Naturally, the question crossed my mind whether this figure–either one–represented a pinnacle across all sets. In a very boring way the answer is no, since a cabinet set from 1890 included a Harry Stovey when he was the sole member of the club. As such, that set included 100% of all 100 HR Club members. To allow for more interesting answers I’ll re-ask the question but use the “Modern Era” as a qualifier. I’ll also restrict the sets in question to ones mainly featuring active players as opposed to all-time greats tribute sets.
Either way, for the moment I do not know the answer but expect it will still be circa 1933, probably a tad earlier. (The 1931 W517 set is a strong candidate.)
Forgetting about baseball cards at the moment and not yet incorporating Negro League data, it’s easy using Stathead to look at the percentage of active 100 HR Club members over time. I’ve done this from 1900 to 2020, in 10 year increments and the results seem to confirm 1930 or so as when the greatest percentage of 100 HR Club members were active.
One thing clear from the data is the percentage of active 100 HR clubbers is only trending downward at this point. Were I to compute the data year by year rather than in ten year increments, we might see the occasional upward blip, but what’s certain is the days of a new release capturing anywhere near 50% of baseball’s “elite” 100 HR club are completely behind us. At this point, even 5% may live entirely in Baseball’s rear-view mirror.
Sources:
Trading Card Database for checklists and card images
In honor of Women’s History Month, I wanted to shine a light on some notable female baseball card artists, past and present. I make no claim that my list is exhaustive, so please use the Comments area to let me know about the artists I’m missing.
2021 Topps Project 70
Though Topps seems to shy away from regarding it as a sequel, Project 70 follows in the footsteps of the prior year’s Project 2020 while opening up the selection of players and years and increasing the number of participating artists to 51. Notably, five of the artists in Project 70 are women. Here is the Topps bio of each, along with one of the first two cards released by each artist. (Check back soon for a full-length SABR Baseball Cards interview with Lauren Taylor!)
Brittney Palmer
Claw Money
Distortedd
Lauren Taylor
Sophia Chang
2020 Topps Project 2020
Five female artists out of 51 total may or may not feel like a big number to you, but either way it represents a significant jump from Project 2020, in which Sophia Chang was the lone female creator.
Chang’s cards cracked the coveted 10,000 print run threshold three times, led by Mike Trout at 14,821 and followed closely by Roberto Clemente (12,077) and Willie Mays (10,480).
When Sophia released her debut Project 2020 card, Mariano Rivera, I wondered how many female artists had preceded her. As it turned out, I didn’t have to look back very far.
2019 Montreal Expos
Montreal-based sports artist Josée Tellier, who may well be the world’s biggest Montreal Expos and Andre Dawson fan, created her own set of Expos greats in 2019 to honor the 50th anniversary of the franchise.
While the set was not an official release, her cards spread quickly on social media and became one of the Hobby’s hottest underground releases. Definitely don’t be surprised to see Josée take part in an official Topps product sometime in the future.
2018-present Topps Living Set
The Topps Living Set, which began in 2018 and continues to this day, combines current and former players into a single set based on the 1953 Topps design.
For the first three years of the Living Set, all artwork was done by Japanese artist Mayumi Seto. Beginning this year, Jared Kelley will join the Living Set team and share the artwork duties with Seto.
2016-2018 Various other sets by Topps
As the back of Seto’s 2019 Allen & Ginter card shows, Living Set was not the first baseball card set to feature her artwork.
You can also see her art in at least three other sets: Museum Collection (2016), Transcendent (2018), and Gallery (2018).
2016 Topps Museum Collection
2016 Topps Transcendent
2018 Topps Gallery
2000 Upper Deck
In 2000 the Upper Deck Company, still riding high, held a promotion where collectors could submit their own artwork to be used in the Upper Deck MVP “Draw Your Own Card” subset. Ultimately, 31 cards were chosen, with this Frank Thomas by Joe Dunbar, age 36, leading off the subset. As the card back notes, Mr. Dunbar was one of ten artists in the 15 years and over category.
This particular age category featured three female artists in all: Linda Marcum (age 34), Kat Rhyne (age 23), and Melina Melvin (age 32).
Linda Marcum
Melina Melvin
Kat Rhyne
Alexandra Brunet
The set’s most notable creator–man, woman, or child–was Alexandra Brunet. At age 6, she was the youngest artist in the set, beating out her brother and a few other 8-year-olds by two years, so there’s that. However, Brunet’s card was particularly noteworthy for reasons wholly unrelated to her age.
Where other artists gravitated toward established MLB stars such as Sosa and McGwire (hey, it was 2000!), Alexandra chose instead to feature…herself (!) as the Yankees first basemanwoman of the future.
In lending her artistry to a baseball card set, Alexandra was also continuing a tradition that began at least 25 years before she was born. However, before we get to the oldest cards I’m aware of, we’ll look at some wonderful postcard series issued from 1988-91.
1988-91 Historic Limited Editions
Some of the most attractive cards of the 1980s and early 1990s came from the brush of Susan Rini. Her artwork was featured in multiple series of limited edition (usually 10,000) postcards from the appropriately named Historic Limited Editions brand. The earliest set I’m aware of is a 1988 set of Brooklyn Dodgers (ultimately the first of four Brooklyn Dodger releases), and other work included the 1961 Yankees, 1969 Mets, and various player sets including Nolan Ryan, Thurman Munson, Roberto Clemente, and Lou Gehrig.
Backing up 20 years more, we come to a set that was not only pioneering in terms of “girl power” but also for its place in the history of one of the Hobby’s great enterprises.
1968 Sports Cards for Collectors
The prehistory of TCMA begins with another four-letter acronym, SCFC: Sports Cards for Collectors. While Hobby pioneer and SABR Jefferson Burdick Award Winner Mike Aronstein was the originator and distributor of the 1968 SCFC set, the artwork fell to two other relatives: Mike’s Uncle Myron and Aunt Margie.
Per Mike’s son Andrew Aronstein, the drawings initialed MSA were done by Myron S. Aronstein, and those initialed MA were done by Margie.
Was Aunt Margie the very first female baseball card artist? Our Hobby has a long history, so just about any time the word “first” is used, it ends up being wrong. What I will say is that Margie Aronstein is the first female card artist that I’m personally aware of. I will also offer that the industry is sufficiently male-dominated that any female card artist–first, last, or anywhere in between–is a pioneer of sorts.
The combination of artists and baseball cards is experiencing quite a boom these days. Congratulations to today’s female artists leading the charge and the past artists who paved the way!
Related:
Read about photographer and SABR member Donna Muscarella and her baseball card set honoring Hinchliffe Stadium
Read about the “Decade Greats” sets issued by megadealer and card producer Renata Galasso
Inside the big box was a smaller box. A crooked smile crossed my face in curious wonder as I reached for some unknown treasure. I had just sorted through several things in Uncle Dan’s mystery box of baseball when I came across the familiar white cardboard baseball card box. Slowly I unpacked the contents as my curious wonder intensified. The cards I pulled out were just a random hodge-podge. I was flipping through cards from Score, Fleer, Upper Deck, Donruss, several Bowmans and only a few of my favorite, Topps. The majority of the cards were 1989s and 1990s. A few 1988s, and 1991s, as well. Interesting enough, I found a stack of 1990 Upper Deck hologram logo stickers, too.
Being somewhat compulsive with a need for order, I sorted this jambalaya of cards into stacks that made sense to me: by manufacturer and by year. I’ll sort them by number later. With a little bit of hope, I sorted through the 1989 Upper Decks, looking for “The Kid.” Hoping, maybe, maybeee … Nope, no Junior. Oh well. I knew it was too much to hope for. Regardless, there are some good names in the stack. I turned to the Donruss pile. A couple of good things, including a Bart Giamatti card. I don’t recall if I had ever seen a card for the commissioner of baseball before, but it was good to see. I like Giamatti, and for a moment I reflected on the scenes from the Ken Burn “Baseball” documentary, wondering what his tenure would have been like had he lived to serve a full term in office.
In the 1990 Donruss stack, I also found something cool: the Juan Gonzalez (#33) reverse-image card. The card manufacturer erred when they reversed the image of this Ranger “Rated Rookie” so that we see him batting in what appears to be on the left side of the plate, and of course, his uniform number 19 appears reversed. Fortunately, the correct image card is among the stack, as well.
The short stack of 1990 Fleers included #635 “Super Star Specials” called ‘Human Dynamos” picturing Kirby Puckett and Bo Jackson. I’m guessing since both players are sporting their home jerseys, the photo was probably taken at the 1989 All-Star Game, which was played at Anaheim Stadium (where Jackson was the game’s MVP). It’s an educated guess, but I would love to hear confirmation from someone.
I was a little more intrigued with the small pile of 1990 Bowman cards, which warranted a little research. As it so happened, by 1990 Bowman scaled down the size of their card, to a more standard dimension. A couple of things piqued my interest. First, this stack of cards featured a cool Art Card insert by Craig Pursely. My stack featured Kevin Mitchell. The reverse side gave a little blurb on the player, while the card also doubled as a sweepstakes entry. This Art Card insert set included 11 cards.
The other thing that piqued my interest is how the player’s information is presented on the reverse side. In this instance, only one year of data given, but the analytics are compiled by competitor. That is, the rows include the player stats, while the columns feature the specific teams. For example, the Red Sox first baseman/outfield Danny Heep played in 113 games in 1989: 8 vs Orioles; 9 vs Angels; 7 vs White Sox; 8 vs Indians; and so on. It’s a squirrelly way to present the data, if you ask me. I feel bad for the person that had to put all that together for all 500+ cards.
A couple of interesting things that stood out was a 1990 Score Tombstone Pizza Kirby Puckett card (number 25 of 30), a 1992 mini-set of three “Special Edition Combo Series” cards from French’s Mustard. The three in my set include: Julio Franco/Terry Pendleton (#3), Don Mattingly/Will Clark (#11) and Cal Ripken Jr/Ozzie Smith (#13). Brief information on each player (bio, stats, two-sentence blurb) is found on the card’s reverse side. The 1992 Combo Series featured 18 cards with 32 players. That is a lot of mustard to buy!
I’m still struck by this unusual collection of cards, and wonder about the original collector’s motivation and frame of mind. Such a wide assortment. It also makes me want to read up again on this era of cards, when it seems like the wild west of cardboard and baseball players, with everyone and his brother looking to cash in on the collecting craze of the late 1980s/early 1990s.
Uncle Dan’s mystery box of baseball cards continues to provide an ongoing sense of wonder, if not source of amusement. But wait, there’s more …
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SABR's Baseball Cards Research Committee 