One of the elements of Topps Heritage that routinely catches my eyes are the Heritage News Flashbacks. For a small insert set which is purportedly about the heritage year’s news highlights, I’ve found it to be an interesting window into what kind of things Topps considers mass-market newsworthy.
Given Topps’s coverage of the 1950s–1970s we have a lot of civil rights firsts,* a lot of space exploration, and a lot of Vietnam War related events. All things which are conceivably politically neutral. In many years though Topps also commemorates legislation and other political achievements. These were clearly highly political at the time but also frequently remain political even today. When I look through the insert checklists it’s these cards that catch my eye in the way that they have one foot in both “this is something worth commemorating” territory and “this is what people say we shouldn’t talk about in the hobby” territory.
*The number of “first black” or “first woman” events Topps chose to celebrate is both refreshing to see and an indictment of who has been traditionally allowed to succeed in our society.
Not only do these legislative inserts catch my eye but they frequently have an interesting context outside of the just the card. This 2009 card commemorating the 1960 Civil Rights Act for example came out the same year that Barrack Obama became the first Black President and the year that Congress authorized the Civil Rights History project to collect oral histories from people who were active in the struggle during the 1950s and 1960s.
The thing with these news flashbacks cards though is that they also tend to frame history as a series of accomplishments rather than a continuing struggle and discussion. Looking at this card gives the impression that we’ve achieved equality at the polls and that no further work needs to be done to maintain things let alone improve on them further.
In 2010 we have acknowledgment of how Washingon DC residents were disenfranchised through the 1960 election with a card the commemorates the ratification of the 23rd Amendment. It’s definitely a good thing that their presidential votes count now but the struggle for DC statehood and representation continued after this amendment.
In terms of the context of this 2010 card it’s important to mention DC’s statehood has been endorsed by multiple Presidents now and that there was a referendum in 2016 in which 86% of DC voters expressed a desire for statehood.
In 2013 we pick up where 2009 left off with the Civil Rights Act of 1964. As with the 2009 card this states plainly that segregation is outlawed as well as discrimination against ethnic, racial, and religious minorities plus women. This card doesn’t note how the Civil Right Act of 1964 is what prompted Southern Democrats to switch parties and drastically rearrange the political geography of the United States.
Coming out in 2013 is kind of some amazing immediate context too. Between the Trayvon Martin murder which spawned the Black Lives Matter movement and the Fisher v U of Texas case that threatened to roll back Affirmative Action the discussion about how relevant the Civil Rights Act of 1964 still was and whether its protections were still needed make this card anything but politically neutral.
The 2014 card which commemorates the Voting Rights act of 1965 is the card which prompted this post. For Topps to publish this the year after Shelby v Holder feels almost like an intentional political comment. With a headline about securing voting equality despite the mechanisms for actually keeping voting equality having just been ripped out of the act this card reads almost as a eulogy for what was rather than a milestone that was reached.
The ensuing decade has confirmed my sense of it being a eulogy as we’ve seen increased attacks on voting access nationwide.
We’ll skip a few more years and land in 2017 with yet another Civil Rights Act, in this case 1968’s, which was in the news a bit that year. This act contains within it the Fair Housing Act which prohibits discrimination in both renting and sales. The list of protected categories started off as including just race, religion, and national origin but has expanded to include sex, disabilities, and children. In 2017 sexual orientation and gender identity were added to this list via the judicial system (but never got anywhere in Congress).
This act also included some anti-riot language which made it a crime to travel between states in order to participate in a riot. It was notably used on the Chicago Seven and came up again in the aftermath of the Unite the Right rally in 2017 in which the courts ruled that its language was over-broad.
While this isn’t a legislative card I’ve included the 2018 card of the 1969 Stonewall Riots because of how much of a lighting rod it would be in today’s political landscape. This is history—both from a Gay Rights point of view and the fact that Marsha P. Johnson was a black transgender woman—which is currently being actively legislated against in multiple states nationwide and Topps just had it as a card only four years ago.
This card also came out in the aftermath of the 2015 Obergefell decision which legalized gay marriage and resulted in years of stories of workers and businesses who refused to acknowledge those rights and insisted that their rights to discriminate were more important.
After having maybe one political card per year, Topps went a bit nuts in 2019 and released four of cards of things the government did in 1970. Some of these like expanding voting access to 18 year olds don’t require much comment. Others like the PBS card are noteworthy in the timing of how free educational television was moving to streaming services with shows like Sesame Street only releasing new episodes through HBO Max.
The Earth Day and creation of the EPA cards though are fascinating to see in an age of runaway climate change, the complete abdication by the US Government to do anything about it, and the shortsighted focus on immediate profits over a sustainable world.
Back to only one card in 2021 but it’s a doozy for a year which was threatening to roll back many of the protections that women fought for in the 1970s as Covid had a greater impact on women’s jobs and abortion is getting outlawed nationwide.
In any case it’s pretty clear at this point that the biggest habitat threat is climate change and while the explicit protections and goals of the Endangered Species Act are laudable a larger, more-global, solution will be required moving forward.
And that’s the list. When looked at together it’s easy to reach a conclusion that Topps thinks that discrimination based on race, nationality, and gender is bad, that protecting the environment is good, and that voting should be accessible to all citizens. But it’s also easy to reach a conclusion that Topps considers that all of that has been accomplished already and something we can look back upon and celebrate much in the same way the Major League Baseball commemorates Jackie Robinson as a way of ignoring its current track record on racial equity.
Author’s Note: This is the second in a multi-part series [Part I] that will explore the legal backstories that have shaped (and continue to shape) the baseball card industry. Once considered mere ephemera used to induce children to buy penny confections (or cigarettes!), the industry has been inundated by costly legal battles waged in the name of baseball card supremacy.
Although Fleer had hoped to wield the Federal Trade Commission as its cudgel, the commission ultimately found that Topps’ business practices did not constitute an unlawful monopoly and the matter was dismissed in Topps’ favor on April 30, 1965. Undaunted, Fleer renewed its efforts in 1966 to sign players at spring training camps and issued its “All Star Match Baseball” set, which featured a 66-piece puzzle of Dodgers ace Don Drysdale on the reverse side of the game cards. After this set was issued (and perhaps a result of disappointing sales) Fleer’s resolve faded, culminating in the sale of its entire player contract portfolio—some 3000 players—to Topps later that year for $395,000 (approximately $3.4 million in today’s dollars).
Having dispatched its closest competitor, Topps was poised for sustained dominance in the baseball card market. Indeed, the 1967 set was its largest to date with a checklist comprising 609 bright, colorful cards. Unfortunately for Topps, its newly bought peace would be fleeting. The next assault, however, would be waged not by rival card manufacturers, but by new adversaries—the Major League Baseball Players Association (MLBPA) and Major League Baseball (MLB).
Frank Scott and the Proto-MLBPA
A “short, feisty, impeccably dressed man,” Frank Scott was road secretary for the New York Yankees from 1947 through 1950 and developed close relationships with Yogi Berra, Whitey Ford, and Mickey Mantle. In exchange for a 10% commission, Scott began to represent those players for off-field income opportunities—namely personal appearances and product endorsements—and eventually developed a client list of over 90 baseball stars including Willie Mays, Jackie Robinson, Hank Aaron, Eddie Mathews, and Robin Roberts. At his peak, Scott was earning $250,000 per year (approximately $2.4 million today) pursuing endorsement deals. One of those deals included landing Mickey Mantle a $1500 payment from Bowman for rights to a photo of Mantle blowing a bubble (although no such card was ever issued).
In May 1959, Scott was named director of the nascent MLBPA—an organization originally created to help ensure the players’ player pension fund was being adequately funded. He continued his player representation business and staffed a provisional MLBPA office at a New York City hotel. Although he had been paid $1000 ($9600 today) a year by Topps for his assistance getting players to sign baseball card contracts, Scott ceased all relationships with Topps after becoming head of the MLBPA.
Considered “too smart to meddle in the players’ salary debates,” Scott avoided contract negotiations between his clients and their respective ballclubs. Similarly, the MLBPA was not yet recognized as a union under Scott’s leadership and did not engage in collective bargaining with MLB on behalf of the players. The direction of the MLBPA, however, changed drastically in late 1965 as a search was undertaken to find a full-time director and establish a permanent office.
The Marvin Miller Experience
Though not their first choice, the stars aligned when the players’ landed Marvin Miller, then chief economist for the United Steelworkers. Under Miller’s leadership, the MLBPA saw unprecedented progress for players’ rights and eventually led to his election to the Baseball Hall of Fame in December 2019.
Miller’s nomination for Executive Director was ratified by a player vote on April 11, 1966. He was given a two-and-a-half-year contract starting July 1, at $50,000 per year (approximately $430,000 today), plus a $20,000 expense budget. In need of quick revenue to fund association operations, Miller prioritized a group licensing program. With Frank Scott’s help, the MLBPA first inked a deal with Coca-Cola to print player photos on the underside of bottlecaps. The team owners demanded that Coca-Cola pay separately to use of their club logos. Coca-Cola refused, however, so the bottlecaps were printed with blank hats.
At the time Miller took the helm, the players were still being paid $125 per year by Topps to use their photographs, the amount unchanged for over a decade. Miller met with Topps’ president Joel Shorin in the fall of 1966 looking to renegotiate. Shorin was dismissive of the ballplayers’ leverage as he quipped, “I don’t see your muscle.” Miller, however, was ready to play hardball with Topps:
“In early 1967 Miller suggested to the players that they stop renewing their individual Topps contracts and boycott Topps photographers. This was the only way, Miller advised, that they could get Topps to deal with them. Although the action was voluntary, Topps was able to take no more than a handful of photos during the 1967 season, and, with the dispute unresolved, none at all in 1968.”
Around this same time, the baseball club owners established Major League Properties, Inc. looking to monetize the use of their logos depicted in the photos taken of the ballplayers. After initially refusing to engage with the owners for these rights, Topps was warned that future player photos should be taken in “street clothes, or in pajamas or bathing trunks.” Accordingly, uncertainty created by the demands made by the club owners and the MLBPA were the main reason hatless, underbrim, and duplicative photos proliferated Topps’ offerings the second half of the 1960s.
The players’ boycott convinced Topps to pursue further talks with the MLBPA in early 1968. Topps’ opening volley was no olive branch, however. At a meeting on April 23, Shorin presented Miller with a legal opinion stating that the MLBPA’s group licensing program violated antitrust laws. The MLBPA responded with an opinion that Topps’ contracts with the players violated antitrust laws. (Ironically, both Topps and the MLBPA would soon have to defend a lawsuit that alleged that they conspiredtogether to violate antitrust laws.)
Fleer (Briefly) Back in the Mix
In a move designed to enhance the MLBPA’s bargaining position with Topps, Miller proposed giving Fleer exclusive rights, beginning in 1973, to sell baseball cards with gum for up to 80% of the MLB player pool—in exchange for $600,000. Alternatively, the MLBPA offered Fleer immediate rights for all players sold with a product other than gum. Fleer rejected both offers, claiming it was only interested in cards sold with gum, and that 1973 was simply too long to wait.
Despite the hostile start to their renegotiations, Topps and the MLBPA were able to reach an accord on November 19, 1968 that doubled the player’s annual payment to $250. More importantly, Topps agreed to pay royalties on its annual baseball card sales revenue, resulting in $320,000 (approximately $2.5 million today) paid to the MLBPA in the first year of the deal alone. The deal also allowed the MLBPA to grant a license for any products that were at least 5” x 7” and sold for 25 cents, although Topps reserved the right of first refusal as to any such proposal.
The MLBPA issued numerous trading card licenses during the 1968-1974 period to companies like Beatrice Foods, ITT Continental Baking, Kellogg’s, Pro Star, Inc., Madaras, Inc., Pasco, Inc., and Charles Linnett Associates—several of which were granted over Topps’ objection. In 1969 the MLBPA granted Sports Promotions, Inc., a license to market baseball cards “with cheap novelty rings, iron-on patches, and similar novelties so long as the value of the novelty represented half of the total retail value.” Topps complained to the MLBPA that their rights had been infringed when they learned of the agreement. Topps also objected to Kellogg’s selling baseball cards alone through the mail in 1974. Officially licensed by the MLBPA, Kellogg’s sold sets 54 baseball cards for $1.50, plus a box-top from box of cereal (that typically cost 60 cents). The MLBPA did not revoke Kellogg’s license but obtained a waiver from Topps to allow the continued license for cards sold in that fashion. (Topps could not object to the Kellogg’s cards inserted as premiums in Kellogg’s cereal boxes.)
Despite some occasional complaints to the MLBPA, several years of prosperity followed for Topps and by 1974, its sales of baseball cards and gum approached $6 million annually (approximately $34 million today). Pleased with their arrangement, the contract between Topps and the MLBPA was extended through 1981.
A Fleer in the Ointment
In 1974, Fleer’s president Donald Peck approached the MLBPA seeking approval to market 5” x 7” satin patches to be sold for 25 cents each. The proposal appeared to exploit the product size loophole granted by Topps but appears to have been bit of clever subterfuge in hindsight suggested by Fleer’s paltry $25,000 guarantee on projected sales of $1 million. Moreover, Fleer was likely aware Topps and the MLBPA routinely discussed whether proposed licenses infringed upon Topps’ rights.
Topps took the bait and advised the MLBPA that Fleer’s proposal “was probably not worthwhile.” Without explicitly asking that the license be denied, Shorin warned that the large-format satin patches proposed by Fleer would sit on store shelves and likely depress the sales of Topps’ baseball cards, along with the players’ royalties. Not surprisingly, Topps declined its right to claim the license for the satin patch product.
Miller presented both Fleer’s proposal and Topps’ criticism to the players’ executive board for consideration. Fleer’s offer was rejected unanimously because of fears “Fleer’s product would remain unsold on store shelves, prompting store owners to cut back on orders of Topps’ baseball cards.” Additionally, the executive board was skeptical of Fleer’s sales projections and inadequate guarantee. Miller suggested several changes that might secure a license for the product, but Fleer declined. By April 1975, Fleer had dropped its 5” x 7” product proposal all together.
Peck met with Joel Shorin on April 17, 1975 and threatened to file a lawsuit unless Topps granted Fleer the rights to sell “stickers, stamps, and decals depicting active major league players.” Shorin refused, so Fleer approached the MLBPA about joining in a lawsuit against Topps. The MBLPA declined.
The Monopoly Defense, Part Deux
Even though it had apparently abandoned a desire to produce baseball cards of current players by selling off its contract portfolio to Topps in 1966, Fleer kept a toe in the water by selling team logo cloth stickers with its gum from 1967 through 1972. While Curt Flood’s antitrust case captured headlines throughout the early 1970s and pitchers Andy Messersmith and Dave McNally played out their 1975 seasons without contracts in an effort to gain free agent status, Fleer pursued an antitrust case of its own in July 1975, filing a federal lawsuit against Topps and the MLBPA alleging they were co-conspirators in an illegal restraint of trade under the Sherman Act.
Donald Peck claimed that “Topps’ methods had made it impossible for a competitor to bid for rights to the players’ pictures, that the players had been deprived of a chance to maximize their income,” and “the gum and candy industries had been deprived of open competition.” In its complaint, Fleer alleged that it had attempted to obtain the rights needed to produce a set of current major league baseball 5” x 7” cloth stickers as recently as 1974 and was otherwise equipped to reenter the market, but for its lack of “suitable contracts with baseball players.”
Now united, Topps and the MLBPA vowed to vigorously defend the case, which made antitrust accusations eerily similar to those Topps had successfully defended just a decade earlier in the FTC matter. Joel Shorin remained confident that Topps “had complied with all relevant laws.” Likewise, Marvin Miller was satisfied with the Topps’ arrangement and “would not like to see it disrupted.”
In response, Topps filed a motion to dismiss asking the court to find that Fleer was a de facto party in the FTC matter, alleging “Fleer took such an active part in the FTC hearings, and its interests were so aligned with those of the FTC complaint counsel, that it had a “full and fair opportunity . . . to present its evidence and arguments on the claim.” Because the FTC matter had already been resolved in Topps’ favor, they felt it unfair to allow Fleer another bite at the apple.
It seems reasonable to infer that Fleer had no intention of ever issuing a set of 5” x 7” satin stickers, especially when they rebuffed Miller’s attempts to restructure the deal. Most likely, Fleer’s proposal was engineered to be rejected by the MLBPA, both by its puny guarantee and bold expectation Topps would exert its influence to sink the project. By perpetuating this bluff, however, Fleer could allege the requisite intention and capacity to reenter the baseball card market necessary to prove its antitrust case.
The court found that Fleer had undertaken substantial steps to compete in the marketing of current baseball player picture cards and had sufficiently pled that the alleged conspiracy between Topps and the MLBPA prevented them from entering the market. The defendants’ motion to dismiss the case was denied on May 28, 1976; Fleer survived round one.
The Pure Card Set
In late 1974, Topps was alerted that Mike Aronstein and Sports Stars Publishing Company (SSPC) was interested in issuing cards featuring current baseball players. Topps notified the MLBPA, who issued a cease-and-desist letter to Aronstein asserting Topps’ status as the “exclusive licensee for baseball cards sold alone or together with confectionary products” of the MLBPA. Up until Fleer’s request for a license to issue its 5”x7” cloth stickers, the MLBPA had refused but one license request—Aronstein’s—because the SSPC cards conflicted with Topps’ rights to sell cards alone.
Undeterred by Topps’ monopoly and after success with Mets and Yankees team sets and a 24-card “puzzle back” set in 1975, SSPC set its sights high for 1976, with plans to issue a massive 630-card “Pure Card Set” inspired by Aronstein’s admiration of 1953 Bowman’s clean design. SSPC partner, Bill Hongach, (former Yankees’ batboy and Renata Galasso’s husband) helped obtain the photographs. A young Keith Olbermann wrote the card backs. The issuance of the Pure Card Set in 1976 (though copyrighted 1975), however, involved a fair bit of daring.
Two of Mike Aronstein’s other partners in SSPC were attorneys who opined the company could legally issue the cards because (1) the current players were public figures and (2) SSPC was simply disseminating editorial information about each player. They believed the SSPC format (despite its dimensions corresponding precisely to those of a Topps baseball card) was not substantively different than a photograph of a player accompanying a magazine article. Regardless, Aronstein said they “waited to be clobbered by Topps” once the set was advertised for sale.
Distribution of the Pure Card Set—printed and ready to ship as of January 21—was stopped in its tracks when Aronstein received notice that Topps had been granted a temporary restraining order. Despite Topps’ later admission it had no issue with TCMA’s minor league and reprint sets (as long as they did not contain any cards of active MLB coaches of managers under contract with Topps), the order also halted distribution of all TCMA card sets and otherwise attempted to put Aronstein’s Collector’s Quarterly magazine out of business. The SSPC operation was small (i.e., no employees) and had gone $40,000 in debt to print the Pure Card Set. Topps, on the other hand, tallied $8 million in revenue (approximately $40 million today) on sales of 250 million baseball cards produced in 1976.
Eventually, Aronstein was able to reach a deal that allowed SSPC to distribute the Pure Card Set to anyone who had ordered it on or before February 20, 1976. Aronstein was thrilled—SSPC had sold some three million cards (distributed as complete or team sets), which allowed them to cover the printing costs and claim a tidy profit. The deal also permitted SSPC to produce cards of current players in sizes other than the standard 2½” x 3½” size, which led to SSPC’s creation of fully sanctioned 27-card uncut sheets that the Phillies and Yankees included in their 1978 yearbooks.
Closing out the 1970s
In 1976, Topps and Fleer began to lose market share with their flagship hard bubblegum products (“Bazooka” and “Dubble Bubble, respectively) due to the introduction of “Bubble Yum,” a soft bubblegum product. Despite its new competition, revenue remained healthy for Topps through 1978, with total sales about $67 million (roughly $290 million today), $9.2 million of which (approximately $40 million today) originated from the sales of baseball cards. With revenue of $15.2 million in 1978 (about $66 million today), Fleer surely salivated at the opportunity to issue baseball cards as a way to close its revenue gap.
In 1978, royalty income for the MLBPA approached $1.1 million (approximately $4.7 million today). Topps’ royalty payments accounted for about $847,000 (approximately $3.65 million today) of that total. That Topps payment comprised more than 75 percent of the MLBPA’s total licensing revenue neatly explains why the MLBPA was reluctant to cross Topps.
The Bubble Bursts
Fleer’s antitrust case against Topps and the MLBPA rolled on for the better part of four years in Pennsylvania without much publicity until the defendants were dealt a massive blow on June 30, 1980. After trial on the matter, the district court issued its decision finding that Topps and the MLBPA had acted in concert to exclude Topps’ competitors and were in violation of the Sherman Antitrust Act by having restrained trade in the baseball card market. Damning to be sure.
In order to arrive at its decision that Topps and the MLBPA conspired to monopolize, the court had to find a “specific subjective intent to gain an illegal degree of market control.” As a result, Fleer was entitled to monetary damages and the court was empowered to grant equitable (non-monetary) relief that could levy restrictions on Topps and the MLBPA and/or impose mandatory injunctions that would require defendants to perform specific actions. The equitable relief granted by Judge Clarence Newcomer would change the baseball card landscape forever.
In order to calculate any monetary damages owed to Fleer, the court assumed that, absent the conspiracy to monopolize, “the MLBPA would have granted Fleer a non-confectionary license for some product” at the market price. The court, however, considered the realities of Fleer’s chances for success in the market, “Fleer has never had a great deal of success marketing trading cards of any type (Topps and Donruss are the leaders in the field), and had it obtained an expensive license, its expertise would have been greatly tested. Fleer’s distribution system is not as effective as that of Topps (Topps uses its own sales force; Fleer works through brokers and wholesalers), and Topps could have been expected to have beaten Fleer to the shelves in the spring. Finally, Topps’ product has a great deal of market acceptance among retailers and consumers.” The court admittedly could not find that “Fleer would have been the company to succeed at the endeavor,” but it at least should have had the opportunity to try.
Generally, monetary damages must be provable in order to be recovered. Unfortunately for Fleer, the court found that trying to quantify Fleer’s losses depended on “an unacceptable amount of speculation,” especially because Fleer was “not a particularly robust company at the moment.” Its sales were roughly a fifth of those of Topps and both companies were suffering loss of market share at the hands of soft bubble gum products sold by larger competitors. Moreover, Fleer had never sold a trading card item that achieved $750,000 in sales.
Even without any conspiracy between Topps and the MLBPA, “Fleer would have faced two obstacles between it and its first dollar of profit. First, it would have had to obtain a license from the MLBPA to market a set of cards. Second, it faced the significant market power of a firmly entrenched competitor.” Because of this uncertainty, the court awarded Fleer symbolic damages of $1 (which was trebled to $3 pursuant to statute). The defendants were also ordered to reimburse Fleer its attorneys’ fees—likely hundreds of thousands of dollars incurred to pursue the protracted litigation.
More importantly, the court permanently enjoined Topps from enforcing the exclusivity clause in its player contracts and prohibited Topps from entering into any player contract that gave Topps the exclusive right to sell that player’s photograph. Wow.
The MLBPA was ordered to carefully consider any applications it received for licenses to market baseball cards and was explicitly required to enter into at least one such licensing agreement before January 1, 1981 “to market a pocket-size baseball card product, to be sold alone or in combination with a low-cost premium, in packages priced at 15 to 50 cents.” Fleer was granted right of first refusal as to any such license. The MLBPA was also cleared to grant as many similar baseball card licenses as it chose to.
Fleer and Donruss Enter the Fray
Following the court’s decision in June 1980, Fleer scrambled to assemble its 1981 set. At 660 cards, it was by far the largest set the company had ever produced. President Donald Peck was downright giddy, “I don’t know why we succeeded this time. I guess our case was just presented better. . .We’re just having a lot of fun competing in this area.” He predicted Fleer would sell less than Topps, but “more than Topps thinks.”
In 1980 the standard Topps wax pack contained 15 cards and a stick of gum for 25 cents. Topps included 15 cards and a stick of gum for its 1981 set but increased the price to 30 cents per pack. It also added “The Real One” tagline to its boxes and wrappers for the first time.
Fleer tried to outdo Topps by inserting 17 cards and a stick of gum in its 1981 wax packs, sold for 30 cents. It also included two extra packs in each wax box, promising retailers “60 cents extra profit”! Fleer’s 1981 issue was the first to market.
Donruss was an experienced player in (mostly non-sport) trading cards but had to scramble to produce a set once it was granted a license by the MLBPA in September 1980 (reaping the rewards without having to engage in expensive litigation. Although not a party, Donruss personnel was involved in the Fleer case only as witnesses).
Donruss’ president Stewart Lyman reached out to New York sportswriter Bill Madden, who was hired to write the backs for the 1981 set. Mike Aronstein was granted the exclusive right to sell complete hobby sets that year. Donruss sold its wax packs, 18 cards and a stick of gum, through its established distribution channels.
Unfortunately, the 1981 Fleer and Donruss issues were plagued by errors as they rushed to produce their sets, prompting collectors to question whether the errors were included intentionally to stimulate publicity. Fleer corrected some of its errors in its second printing, some more in its third. By June 7, Donruss was in its third printing and had made corrections to most of the errors that dogged its hastily assembled set. Lyman denied Donruss had intentionally included the error cards as a way to increase sales, “I’m embarrassed we made any errors, but I’m proud so few were made considering the timetable we had to put out the set.”
Interestingly, the district court observed that as of 1980, “no baseball cards are marketed which include statistics on stolen bases or fielding percentage, game winning hits, successful sacrifice attempts, or any number of other statistics which a competitor might choose to offer to attract baseball card purchasers.” Perhaps it is not a coincidence that Topps and Fleer both included stolen bases on their card backs in 1981.
Despite having prevailed, Fleer was not fully satisfied and appealed the district court’s decision. Fleer wanted the court to bar Topps from the baseball card market for at least one season and to require Topps to deal only with the MLBPA rather than through its exclusive individual player agreements. In addition, Fleer sought reconsideration of the award of nominal damages ($3). Topps appealed as well, seeking a reversal of the court’s findings of liability, damages, and injunctive relief.
In a bit of déjà vu, the Third District Appellate Court found that the agreements in place between Topps and the MLBPA “were neither unreasonable restraints of trade. . .nor monopolization of the relevant market.” Topps had won the appeal (again). The court held that just because Topps had managed to obtain licensing agreements with the overwhelming majority of major league players “did not make the aggregation of these contracts an unlawful combination in restraint of trade.” They noted further that Fleer chose to leave the trading card market in 1966 and sold all its existing licensing agreements to Topps.
In addition, Fleer had admitted it could compete against Topps for license agreements in the minor leagues, but it would take several years before it could produce a marketable product. The court found that this argument simply “identified a characteristic of Major League Baseball, rather than an illegal restraint of trade” or “an indictment of Topps’ licensing agreements.” While a Fleer may not have been able to sign major league players already under contract to Topps, it could still compete for player licenses at the minor league level. That this might take six or seven years to bear fruit did not make Topps’ agreements anticompetitive.
An examination of licenses granted by the MLBPA for the sale of trading cards with non-confectionary goods demonstrated that the fear of decreased royalty payments did not stop the MLBPA from licensing products competitive with Topps. As a licensor, “the MLBPA is free to grant licenses to any competitor, or none at all.” Ultimately, appellate court held that Fleer had not proven any intent on the part of Topps and the MLBPA to monopolize the trading card market.
In 1982, the U.S. Supreme Court declined to hear Fleer’s appeal, which made final the Third District’s decision.
Restitution in Delaware
No longer free to market their cards with gum, Fleer and Donruss set about to distribute their cards in 1982 with a non-confectionary premium to exploit the loophole in Topps’ exclusive rights to market cards alone or with gum, candy, or confectionaries. (Fleer did not resurrect the cookie packed with cards in 1963.) Though Topps presumably protested to the MLBPA that Fleer’s team logo stickers and Donruss’s Babe Ruth puzzle pieces were simply “sham” products tantamount to selling cards alone, the MLBPA continued to officially sanction Fleer and Donruss, presumably content with the fruits of the royalty arrangements with each.
In May 1982, shortly after Fleer’s appellate recourse was exhausted, Topps filed a lawsuit in Delaware’s chancery court alleging Fleer was unjustly enriched by “sales of products to which Topps had the exclusive rights to manufacture and sell.” Topps sought to recover the profits Fleer realized on its $4 million in sales (approximately $12.4 million today) of 1981 cards. Fleer president Donald Peck dismissed the charges as meritless and assured that Fleer had no intentions of pulling its 1982 cards from the market. Regardless, in the course of the lawsuit Fleer acknowledged that did owe some amount of restitution but urged that disgorgement of its profits was unreasonable.
While the Delaware case was pending, Topps filed a separate lawsuit against Fleer in the Southern District of New York on March 29, 1983 seeking to recover all of Fleer’s profits for 1982 and 1983—along with $3 million in punitive damages—claiming that Fleer’s team logo sticker was a “sham product.” This lawsuit was settled confidentially in 1985, with Fleer given consent to “continue with the baseball cards and team logo stickers, as before.”
Back in Delaware, Fleer filed a motion asking the chancery court to declare that Topps was not entitled to recover Fleer’s profits “because those profits were earned under the protection of a court order and not as the result of any illegal infringement of Topps’ exclusive contract or licensing rights.” The court denied Fleer’s motion, finding that even though Fleer had legally marketed its 1981 cards in accordance with the Pennsylvania district court’s order—once the decree was reversed by the appellate court, it was as though Fleer had infringed on Topps’ exclusive rights all along.
In 1988, the Delaware Supreme Court affirmed the lower court’s ruling that Fleer had issued cards in 1981 under a wrongfully issued injunction and were responsible to reimburse Topps damages equal to the “net profits received by Fleer arising out of Fleer’s use of Topps’ previously exclusive license agreements.” The matter was returned to the lower court for an accounting. It is unclear how the chancery case ultimately resolved, but it seems likely that the parties reached confidential settlement. (No newspaper articles reporting on the resolution of the case have been located and no information is available remotely from the court.)
Otherwise, the MLBPA began preparing in 1988 for a potential work stoppage in 1990 when the collective bargaining agreement with MLB expired. At the time, baseball card royalties paid into the MLBPA garnered each player roughly $18,000 per year in additional income (approximately $43,000 today). The MLBPA used those royalty payments (only $5000 of the $18,000 total was distributed to the players) to fund a war chest, which proved a savvy move when the owners implemented a 32-day lockout that delayed the start of the 1990 season.
Also in 1988, newcomer Score joined Topps, Fleer, Donruss, and Sportflics (who began producing sets in 1986) as a major set manufacturer. Deep in the throes of the junk wax era, Dr. James Beckett expected some five billion cards would be manufactured in 1988. Predictably, more industry players would mean more fighting.
In re Topps Chewing Gum, Inc. 67 F.T.C. 744 (1965).
Flood v. Kuhn, 407 U.S. 258 (1972). In January 1970, Curt Flood filed a lawsuit in the Southern District of New York against the Commissioner of Baseball (Bowie Kuhn), the presidents of the two major leagues (Joe Cronin and Chub Feeney), and the 24 major league clubs after he refused an October 1969 trade from the St. Louis Cardinals to the Philadelphia Phillies. Flood’s complaint alleged violations of federal antitrust laws, civil rights statutes, and the imposition of a form of peonage and involuntary servitude contrary to the Thirteenth Amendment, which had abolished slavery. Flood refused to report to the Phillies in 1970, despite a $100,000 salary offer, and sat out for the season. He appeared in 13 games for the Washington Senators in 1971 but left the club, and organized baseball, for good on April 27 unsatisfied with his performance. On June 19, 1972, the United States Supreme Court issued its opinion in the Flood v. Kuhn matter, holding that, in accordance with Federal Base Ball (1922), the business of baseball—including the reserve clause—was exempt from antitrust laws. No other business (i.e., vaudeville, professional boxing, National Football League) that had sought antitrust exemption in reliance on Federal Baseball had been successful. Accordingly, MLB had (has) the only legally sanctioned monopoly in the United States. Despite candidly admitting that “professional baseball is a business and it is engaged in interstate commerce,” a majority of the Supreme Court ruled against Flood, imploring any change to the law be had “by legislation and not by court decision.”
Fleer Corp. v. Topps Chewing Gum, Inc., 415 F.Supp. 176 (E.D. Pa. 1976). With regard to the FTC matter, “Fleer’s representatives were star witnesses and, in proportion, carried the burden of making the record in this proceeding. They were in constant attendance throughout the hearing. . . In retrospect, much of the struggle for contracts with ballplayers seems to be Fleer’s private struggle with Topps . . .The Hearing Examiner is, however, of the opinion that the delegation of the Commission’s ‘adjudicative fact-finding functions’ does not embrace a policy question going to the public interest.”
Fleer Corp. v. Topps Chewing Gum, Inc., 501 F.Supp. 485 (E.D. Pa. 1980). The only trading card product ever to outsell baseball cards was Wacky Packages in 1973-74. The court noted that the slab of gum weighed “4.30 grams” in 1978. Fleer had a net operating loss in 1978 and its net income (loss) was as follows: 1977—$346,621; 1976—$502,257; 1975—$720,274; 1974—($309,261); 1973—$382,354; 1972—$268,926; 1971—$148,494; 1970—($200,016). Roughly two thirds of baseball cards purchased are purchased by “heavy” buyers (i.e., those who purchase more than 200 cards per year.)
Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139 (3rd Cir. 1981). The number of players included in each licensing agreement varied. Some contracts, like those with Coca-Cola and Kellogg’s covered all the players, while others included “not less than 72, and not more than 300.”
Fleer Corp. v. Topps Chewing Gum, Inc., cert. denied, 455 U.S. 1019 (1982).
Topps Chewing Gum, Inc. v. Fleer Corp., 547 F.Supp. 102 (D. Del. 1982).
Topps Chewing Gum, Inc. v. Fleer Corp., 799 F.2d 851 (2nd Cir. 1986). Fleer’s contract with the MLBPA required that the production cost of the logo sticker had to be “not less than 15 percent of the production cost of the baseball cards in a package.” No evidence was presented to show the production costs for the team logo stickers.
Fleer Corp. v. Topps Chewing Gum, Inc. 539 A.2d 1060 (Del., 1988). “Restitution serves to ‘deprive the defendant of benefits that in equity and good conscience he ought not to keep, even though he may have received those benefits honestly in the first instance, and even though the plaintiff may have suffered no demonstrable losses.’”
“Mickey’s Bubbles Busted by Ol’ Case,” The Sporting News, September 23, 1953: 17. Mantle was redressed by Yankees manager Casey Stengel for having the audacity to blow a bubble while playing in the outfield.
Dick Young, “Young Ideas,” (New York) Daily News, December 2, 1967: C26.
Richard Wright, “Off-Season Paydirt for Pro Stars,” Detroit Free Press (Detroit, Michigan), December 8, 1968: 59.
“Lawyer Probed on Ballplayers’ Complaints,” Detroit Free Press, November 2, 1970: 30.
Don Lenhausen, “Lawyer Linked to Tigers Is Accused of Misconduct,” Detroit Free Press, December 17, 1970: 16.
“Bad Check Charge Lawyer Sentenced,” Detroit Free Press, July 28, 1971: 17.
“Competitor Sues Topps Over Players’ Pictures,” Wilkes-Barre (Pennsylvania) Times Leader, July 10, 1975: 4.
“Gum Firm to Pop Rival’s Bubble,” Detroit Free Press, July 10, 1975: 25.
“The battle of the baseball cards,” The Record (Hackensack, New Jersey), March 10, 1976: 62.
Mike Aronstein, “The Great Card War,” Collectors Quarterly, Summer 1976.
“The Topps-sponsored Bubble Gum Blowing Championships of 1975,” The Tampa Tribune, September 5, 1976: 118. In 1976, Topps issued a card honoring Milwaukee Brewers infielder Kurt Bevacqua as the “Joe Garagiola/Bazooka Bubble Gum Blowing Champ.” The win netted Bevacqua a first prize of $1000 ($5200 today) for his 18¼” bubble. Phillies catcher Johnny Oates was second with a 14½” bubble that won him $500.
Andy Lindstrom, “Kids still trade their baseball heroes,” News-Pilot (San Pedro, California), September 10, 1976: 11.
Michelle Mitkowski, “Baseball Card Collectors Have Field Day at Show,” Daily Record (Morristown, New Jersey), January 12, 1981: 19.
Paul Marose, “Just like runs and cards, errors part of the game,” The Dispatch (Moline, Illinois), June 7, 1981: 13-14.
“Bubble gum game goes into extra innings,” Baltimore Sun, June 1982: 38.”
“No Hits, Runs, Errors Yet in Chewing Gum Lawsuit,” Scranton Times-Tribune, March 30, 1983: 11.
“Topps gum firm agrees to buy-out,” Philadelphia Inquirer, November 17, 1983: 121.
“Gumming up the works,” Santa Fe New Mexican, April 8, 1985: 11.
“Investment in Baseball Cards is Topps,” Record-Journal (Meriden, Connecticut), April 18, 1988: 14.
Claire Smith, “Players saving for strike in ’90,” Hartford Courant, June 18, 1988: 191, 194.
Frank Litsky, “Frank Scott, 80, Baseball’s First Player Agent,” New York Times, June 30, 1998: Section B, Page 9.
Michael Haupert, “Marvin Miller and the Birth of the MLBPA,” Baseball Research Journal, Spring 2017.
Mike Aronstein, telephone interview with author, March 10, 2022.
The players’ first choice for Executive Director was Milwaukee County Judge Robert Cannon, who turned down the offer because his request to place the MLBPA office in Milwaukee or Chicago was refused and the association would not guarantee him a pension equal to what he would have received as a county judge. Cannon was later instrumental in moving the Seattle Pilots franchise to Milwaukee. The licensing deal with Coca-Cola was $60,000 per year for two years and was instrumental in securing funding needed to keep the MLBPA solvent until dues were first collected in May 1967. Topps agreed to pay an 8% royalty on the first $4 million in sales and 10% thereafter.
The MLBPA group licensing program applies to any company seeking to use the names or likenesses of more than two Major League Baseball players in connection with a commercial product, product line or promotion must sign a licensing agreement with the MLBPA. The license grants the use of the players’ names and/or likenesses only and not the use of any MLB team logos or marks.
Presumably a deal was reached between Topps and Major League Properties considering team logos appear in every set of the 1960s, but the terms of this deal have eluded the author.
The author has been unable to identify any products marketed under the name “Sports Promotions, Inc.” although this appears to be a company linked to Livonia, Michigan attorney Edward P. May, who along with Tigers pitcher Joe Sparma sold Tiger player caricatures in 1968 and had attempted to “merchandise bubblegum cards on a nationwide basis.” May had represented Al Kaline, who complained to the Wayne County prosecutor’s office that May had defrauded him out of $14,000 tied to a health club named for the slugger. Denny McLain complained he lost $100,000 on an ill-fated paint company venture May arranged. The MLBPA complained May had not paid royalties on baseball cards sold and accused him of forging the signature of a printing company executive on a document that guaranteed those royalties. In 1971, May was placed on three years’ probation for writing bad checks and suspended indefinitely from practicing law in Michigan.
Before 1981, Topps had only included stolen base statistics on the backs of its 1971 cards.
Special thanks to Jason Schwartz for reviewing this article and offering several helpful suggestions.
Author’s Note: This is the first in a multi-part series that will explore the legal backstories that have shaped (and continue to shape) the baseball card industry. Once considered mere ephemera used to induce children to buy penny confections (or cigarettes!), the industry has been inundated by costly legal battles waged in the name of baseball card supremacy. Punctuated by the recent announcement that Fanatics has agreed to acquire Topps’ trading card business, the players in the industry have endured nearly constant cannibalism, infighting, and subterfuge. Thank goodness for us, right? — John Racanelli
A Very Brief History of the Right of Privacy
Although perhaps difficult to believe, individuals were once without legal recourse if their names or likenesses were used commercially without permission. The “right of privacy” was essentially without basis at common law in the United States before 1902. Emerging privacy rights, however, would eventually become a central battleground as trading card makers fought to secure the pocket change of (mostly) American boys after World War II. The resulting litigation would shape the baseball card industry and provide Topps with nearly unassailable baseball card dominance by the 1960s. The story starts, however, at the turn of the twentieth century with a teenaged girl’s surprising discovery in a Vermont tavern.
As an 18-year-old from Rochester, New York, Abigail Roberson visited an “out-of-the-way tavern” in Vermont while on vacation. There she discovered an advertisement for Franklin Mills flour prominently featuring her photograph. The shocking discovery made Roberson physically ill—Franklin Mills had used the photograph without her knowledge or consent and refused to disclose how they obtained the image.
Roberson was humiliated by use of the photo (although admittedly flattering) and learned that some 25,000 copies of the advertisement had been distributed to stores, warehouses, saloons, and other public places. She sued to prevent the further distribution of the poster and asked for $15,000 in damages (approximately $475,0000 today). The trial court found in Roberson’s favor and the appellate division affirmed.
The case went up to New York’s highest court, however, where Chief Judge Alton Parker wrote for the 4-3 majority that Roberson had failed to state a cause of action because her complaint did not allege defendants acted maliciously or published a defamatory photo. They held that Franklin Mills was lawfully able to use Roberson’s photograph for its advertising without having to ask or compensate her.
Not surprisingly, a wave of public outrage followed Roberson’s loss. In the wake, the New York legislature enacted laws to codify the right of privacy, which allowed an aggrieved party to seek court intervention to enjoin use and sue for monetary damages if a photograph was used intentionally without consent.
A Bat Fight: Hanna Manufacturing Company v. Hillerich & Bradsby Co.
The baseball world would first see a battle over privacy rights in 1935, when Louisville Slugger sued the Hanna Manufacturing Company alleging Hanna was infringing on its trademarks by selling bats bearing the names of players under exclusive contract to Louisville Slugger, such as Babe Ruth and Lou Gehrig.
The bats at issue retailed “for as much as $2.50 each” (approximately $28.00 today) and were bought by customers who were “careful and well-informed.” Louisville Slugger took pride in crafting bats of the size, shape, and balance that each major league player preferred and for a small (undisclosed) consideration, these players gave Louisville Slugger the exclusive right to use the player’s name, autograph, and photograph in connection with the sales of baseball bats for a lengthy term, typically 20 to 25 years. The contract signed by the players did not require them to use Louisville Slugger bats, however. In fact, Lou Gehrig had used Hanna bats for two years despite having signed with Louisville Slugger.
Hanna countered that the bats it sold bearing the names of “Babe Ruth” and “Lou Gehrig” were not sold based on the player’s name having been stamped on the bat, but because the purchasers (often college teams) wanted bats of that player’s particular shape and style. The district court found for Louisville Slugger, “baseball players, like any other individuals, have a property right to their names that has been assigned by certain players to Louisville Slugger, and Louisville Slugger used and advertised such right and has such right exclusively, irrespective of any trademark or unfair competition law.”
The appellate court reversed, however, remarking that there were some “interesting discussions as to a ‘right of privacy’” ongoing but that a “public man waives his right so that the public becomes entitled to his likeness.” The court continued, “fame is not merchandise. It would help neither sportsmanship nor business to uphold the sale of a famous name to the highest bidder as property.” [Wow is this shortsighted when viewed in the modern athlete endorsement landscape!]
The court was further convinced that the “name on the bat” was commonly understood to refer only to the model or style of the bat and implied no endorsement by the player. The court specifically ruled that Hanna could market bats bearing players’ names as long as the descriptive mark included the words “style” or “shape” conspicuously, such that a Hanna bat marked “Babe Ruth style” would be acceptable. Ultimately, those Louisville Slugger contracts operated only to prevent the ballplayers from objecting to Louisville Sluggers’ use of their names and likenesses.
“No matter what may be said about the habits and nature of ball players, they are not naïve.” It would not be long before “right of privacy” claims would invade the baseball card industry.
The Big Cat Takes a Swipe
On August 26, 1941, Johnny Mize went 4-for-8 with a double and home run as his Cardinals split a Tuesday doubleheader against the Dodgers at Ebbets Field in Brooklyn. That same day, Mize’s attorneys filed a right of privacy lawsuit against Gum Products, Inc. in Cambridge, Massachusetts alleging that it had used photos of Mize in its Double Play Gum baseball card set without his permission.
In what appears to be the first baseball card-related lawsuit, Mize asked the court for a restraining order and damages commensurate with his appearance on some 140,000 cards issued by Gum Products. On September 5, the court issued a temporary injunction that prevented Gum Products from using Mize’s name or picture further in connection with the sale of gum. Mize’s “right of privacy” victory was short lived, however.
At a subsequent hearing on June 25, 1942, Gum Products admitted it had not directly obtained Mize’s permission, but had done so through the purchase of the picture from an agency. The defense also argued that as “a leading ballplayer of the country,” Mize had no right of privacy in connection to the publication of his name or photograph. On June 28, Judge Francis Good dismissed the case “without comment.” Despite their ultimate victory, Gum Products never produced another set of baseball trading cards.
Leaf: Blown Away
In 1949, Bowman Gum Company and a number of individual players, including Warren Spahn, sued Chicago-based Leaf Brands, Inc. and several east coast gum wholesalers for distributing cards featuring pictures of ballplayers under contract with Bowman. The lawsuit was filed in Philadelphia, where Bowman was based, and a friendly hometown judge issued a temporary restraining order that prohibited Leaf from selling cards with its gum anywhere in the United States (straining the bounds of enforceability).
Leaf took the defeat seriously and reached a settlement with Bowman in which Leaf agreed to withdraw from the baseball card business until at least 1951. Leaf tried in vain to work out arrangements with Topps to share printing rights, but Topps was not interested.
Bowman v. Topps: Birth of the Right of Privacy
Topps first dipped its toe in the baseball card market with its Magic Cards release in 1948. The 19-card baseball series was part of a much larger modern Allen & Ginter-like set that also included cards of football players, boxers, movie stars, famous explorers, and dogs. The tiny cards (roughly 1” x 1½”) featured sepia-toned photos that would appear on the card when exposed to sunlight. The baseball checklist consisted of highlight cards from the 1948 Cleveland-Boston World Series and individual cards of Indians player/manager Lou Boudreau and Braves 3B Bob Elliott. The balance of the baseball checklist was comprised of retired greats such as Babe Ruth, Walter Johnson, Rogers Hornsby, and Joe Tinker/Johnny Evers.
In 1951, Topps issued a set of baseball cards featuring current players in direct competition with Bowman, who had produced “Play Ball” sets from 1939-1941 and their own branded sets starting in 1948. To create their set (commonly referred to as “red backs”), Topps licensed rights to the players’ names, photos, and biographical information from a third-party company, Players Enterprises, Inc. This initial set of 52 cards was designed like a deck of cards and was intended to be played as a game. The cards were distributed in a rather nondescript box of “’Doubles’ Baseball Playing Cards” that identified Topps cryptically (and perhaps by design) only by “T.C.G. Brooklyn 32, N.Y.” on the bottom of the box and wrappers. When Players Enterprises merged with Russell Publishing Company in April 1951, Topps was given an additional stable of players under contract that allowed them to distribute a second series of 52 cards (“blue backs”) sold in a redesigned box as “Baseball Trading Card Candy.”
Unhappy with the competition, Bowman sued Topps following their release of the red/blue back cards claiming trademark infringement, unfair competition, and impairment of contract rights. They sought to prevent Topps from selling any product having the appearance of gum with the word “baseball” connected to it.
Topps argued that they had lawfully obtained rights from Players Enterprises to use the names, pictures, and biographical data shown on the cards; denied there was any confusion with Bowman’s products; and claimed that the contracts Topps had with the players constituted a waiver of the player’s right to privacy—but conveyed no rights on Bowman to sue Topps. Topps also argued that it had not infringed on Bowman’s contracts with players because it had inserted a caramel candy—not gum—with its cards.
The evidence established that Bowman had contracted with 340 baseball players through Art Flynn Associates for the right to use the name, signature, photograph, and descriptive biological sketch of each. In exchange, Bowman paid $100 and provided a wristwatch to each player for 1951. (The 1951 contract included the word “confections” for the first time, which seemingly presaged knowledge Topps was intending to issue a baseball card set with candy.) The players were also eligible to complete for the Jack Singer Annual Good Sportsmanship awards sponsored by Bowman.
Topps proved it had contracts with 248 active major league players through the rights acquired by Players Enterprises and Russell. These contracts gave Topps the right to use players’ names, pictures, and biographical data in connection with the sale of candy in 1951 and candy andchewing gum for 1952.
Following a bench trial, Judge Clarence Galston ruled in Topps’ favor and dismissed the case. He found it significant that there was no player biographical data on the reverse side of the 1951 Topps cards; the packaging between Bowman and Topps was different; and there was no record of any confusion between purchasers of the two products.
More importantly, the court (in reliance on § 51 of New York’s Civil Rights Law enacted in the wake of Roberson) held that the contracts Bowman made with the players conveyed no rights on Bowman to sue a third-party, such as Topps. Accordingly, only the individual ballplayer would have a cause of action for an injury to his person. No “right of privacy” was applicable to a business.
Bowman v. Topps: The Appeal and Establishment of the “Right of Publicity”
Bowman took the matter up on appeal to the Second Circuit claiming their contracts were exclusive for use in connection with the sale of gum and that Topps deliberately induced the ballplayers to sign contracts giving Topps the same rights. Topps continued to argue that even if Bowman proved its case, there was no actionable wrong because any contract between Bowman and a ballplayer did not convey any right on Bowman to enforce those rights as to third parties.
Just prior to the start of the 1953 season, the appellate court formally established the “right of publicity” by way of recognizing an enforceable property right in each player’s name and likeness. This was huge. Accordingly, the ballplayers could grant exclusive rights to their pictures that could be enforced by third parties, such as Bowman. “For it is common knowledge that many prominent persons (especially actors and ballplayers), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.” That the appellate court recognized the right of publicity was an unprecedented hallmark for ballplayers’ ability to control (and cash in) on their names and likenesses.
The case was sent back to Judge Galston to determine if Topps had knowingly used photographs of players under contract with Bowman. This was a complicated case-by-case task in that up to six separate contracts were now at issue for players who appeared in any of the 1951, 1952 and 1953 sets issued by Bowman and Topps.
By May 1953, both Topps and Bowman had continued to issue sets of fluctuating sizes as their competition to ink players to contracts intensified. In fact, Topps pulled six cards from its 1953 set due to the ongoing litigation. The court also required Topps to remove the cards of players it was enjoined from using from stacks of cards printed but not yet wrapped, which allowed Topps to distribute any offending cards that had already been packaged. (Unfortunately, identification of these particular cards is not immediately discernable from the published decision.)
Bowman v. Topps: The Aftermath
The litigation continued, however, and on May 10, 1955 Judge Galston remanded the case to the New York state courts. This litigation was expensive for Bowman, which spent in excess of $110,000 in legal fees ($1.12 million today); it cost Topps only slightly less. Bowman had been losing money each year since 1952, culminating with a net loss in 1954 of $224,000 (approximately $2.3 million today).
In April 1955, Bowman was merged into cardboard box manufacturer Connelly Container Corporation. Connelly’s stewardship of the Bowman gum and trading card brand was fleeting, however, as it looked to shed the gum/baseball card line, which had averaged between 15% to 30% of total sales. On January 20, 1956, Topps settled the litigation with Connelly by acquiring Bowman’s gum-producing facilities, baseball player picture rights, and an agreement on the part of Connelly not to manufacture gum or picture card products for five years in exchange for $200,000 (approximately $2 million today). [Connelly was apparently much more interested in Bowman’s other business pursuits at the time of the merger, including an all-nylon squeeze bottle in development.]
All the while, Leaf wanted to get back into the baseball card business. After the Bowman litigation settled, Leaf again approached Topps with a proposal to share player rights. With main competitor Bowman eliminated, Topps had no interest in making any arrangement with Leaf. In fact, Topps sent a letter to the player representative of each ballclub on August 14, 1956, indicating it was not going to be sharing its baseball card picture rights with any other companies.
By 1959, Topps was the largest manufacturer of bubblegum in the United States with total sales of $14 million annually (approximately $133 million today). Leaf would eventually get back into the baseball card business in 1960 when it produced a black and white 144-card set that was sold with marbles.
Fleer Stirs the Pot
At the end of 1958, the Frank H. Fleer Corporation launched an offensive against Topps for control of the baseball card market by offering ballplayers contracts that would become effective upon the expiration any existing contracts with Topps. This started with a mail solicitation in December and followed up with visits at training camps in 1959 by ten of its sales and marketing personnel. Fleer was even able to enlist representatives who were active players on teams such as Charlie Lau and Chuck Cottier.
The Fleer contracts paid players $5 as initial consideration and $125 upon reaching the major leagues. Further, Fleer offered a monetary gift or reward for players who provided Fleer with copies of their Topps contracts. After learning of this practice, Topps stopped sending copies of its contracts to the players (but would provide information regarding the terms of the contract upon request). Topps was flooded with requests once they started offering $75 for the players to sign extensions.
Fleer successfully lured Ted Williams and produced an 80-card set of the mercurial slugger in 1959. The Williams set accounted for $250,000 in sales (approximately $2.4 million today), which was just a fraction of the $3.8 million (approximately $36 million today) worth of Topps baseball cards sold in 1959.
During the 1960 and 1961 seasons, Fleer issued sets featuring “Baseball Greats,” each of which featured Ted Williams and a cast of retired Hall of Famers and stars. Sales of these sets again paled in comparison to Topps’ baseball offerings. Leaf also issued a small set of current player cards in 1960, sold along with marbles. The 1960 Leaf contract paid the players $50 and provided for rights when distributed in combination with “marbles or other non-edible novelties such as charms made of plastic or metal.”
The Federal Trade Commission filed a complaint against Topps on January 30, 1962—with Fleer’s enthusiastic support—alleging that Topps violated § 5 of the Federal Trade Commission Act, which made illegal “unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.” This section also outlawed business practices that were “unscrupulous, oppressive, exploitative, or otherwise indefensible.” The FTC alleged further that Topps created a monopoly in the manufacture and distribution of baseball picture cards “contrary to public policy” and “to the detriment of free and open competition.” The Hearing Examiner made sure to emphasize that “[m]onopoly is condemned without qualification,” somewhat ironic considering that Major League Baseball enjoys the protections of a legally sanctioned monopoly.
At the heart of the complaint was the allegation Topps had completely foreclosed Fleer from the baseball card market by entering exclusive contracts with almost all major league baseball players and practically all minor league players with major league potential. It was further alleged that Topps had the power to impose tie-in requirements and imposed retail price control on vendors because it “wanted to know about anybody who was not selling the cards at six for a nickel.” On the heels of the FTC filing, Fleer bombarded college coaches with correspondence attacking Topps’ contracts and accusing Topps of monopolistic practices that were under investigation by the FTC.
Taking a page from their prior battle with Bowman, Topps began drafting their contracts to give themselves broader rights and further restrict the players from contracting with others. In 1957, the Topps contract gave exclusive rights to cards associated with gum and candy; in 1958, Topps added “confections” to the list; in 1959, the Topps’ contract extended to cards sold without gum in bulk vending boxes (despite the fact that vending boxes were an exceedingly small part of its total sales); and in 1960, the Topps contract included an agreement by the player not to enter into any other contracts while under contract with Topps. By May 1961, Fleer had contracted with only five major league ballplayers who had not contracted with Topps.
At the time the FTC got involved, Topps had exclusive rights with 95% of major league baseball players and contracts with more than 6500 ballplayers in both the major leagues in minor leagues. Topps first approached players in the minor leagues with a payment of $5 to sign a contract that would pay the player $125 per year for five years if he were promoted to Major League Baseball. Those players who reached the big leagues were paid regardless of whether Topps issued a card of the individual. (Topps would not have to pay if it decided not to market a complete series of cards, except they had to pay the Yankees either way.) Topps’ network included “agents” such as scouts, managers and players who were compensated as much as $100 a year, plus five dollars for each ballplayer signed, or other “gifts, tips or small payments” upon delivery of signed contracts.
Fleer claimed their representatives were physically excluded or intimidated from soliciting players at the Los Angeles Dodgers’ and Detroit Tigers’ training camps “by goon or similar methods.” In the face of Topps’ established network, Fleer had signed only 20 major league players by 1962 and 27 by 1963. Undeterred, Fleer issued a 66-card set (plus an unnumbered checklist) of active major league players in 1963, dwarfed by the 576-card set issued by Topps that year.
The FTC hearing examiner also considered evidence that Topps actively sought to impose market restrictions on other food and beverage manufacturers who used baseball picture cards as promotional devices. General Foods included baseball cards on packages of Post Cereal from 1961 to 1963 and Jell-O from 1962 to 1963. Topps took issue with the Post Cereal promotion that offered a sheet of ten cards (not attached to a cereal box) for two box tops and ten cents, alleging this was an infringement on their rights to sell cards individually. Topps subsequently entered into agreement that Post would pay a license and royalty fees in connection with its distribution of cards alone under the offer. Topps also objected to the set issued in 1958 by Hires Root Beer. Ultimately, Hires made a deal that allowed them to use photos of the players without having to pay Topps, but never issued another set.
The Topps “Monopoly”
Generally speaking, a monopoly is the control of “an economically meaningful market.” In the FTC matter, all that needed to be established was that baseball cards were economically meaningful, and that Topps controlled the market. There was no need to establish that Topps intended to monopolize; nor was it necessary to show Topps exercised its monopoly power.
Hearing Examiner Herman Tocker issued his initial decision on August 7, 1964, after a full evidentiary hearing. He found that Topps had “monopolized the sale of current baseball card picture cards both as separate articles of commerce and as a promotional device for the sale of confectionery products,” in violation of § 5 of the Federal Trade Commission act—even though Topps’ exclusive contracts and other practices were not unfair when viewed separately. Although it had not actually done so, Topps could have controlled the baseball trading card market and “had the power to increase or decrease at will the price when sold alone or when in packages of gum and cards.” Tocker found further that Topps was in violation of § 2 of the Sherman Antitrust Act—a misdemeanor punishable by a fine up to $50,000 or imprisonment.
Topps was ordered to cease and desist from entering or extending exclusive contacts with ballplayers, coaches, and managers for terms in excess of two years and enforcing any contracts in effect after October 31, 1966, along with an order to provide copies of the contracts to the ballplayers. Tocker also opined “[o]bviously, a single picture card, in and of itself, has little value” and “last year’s cards without current statistical content are about as valuable as yesterday’s newspaper,” observations that have not aged well.
The FTC Appeal
Both sides appealed the Hearing Examiner’s decision and order. FTC Commissioner Philip Elman thoroughly reviewed the evidence on record and reversed, holding Topps did not have a monopoly in the production of baseball cards because they lacked economic significance and alone were not “meaningful in terms of trade realities.”
Elman specifically decided that Topps’ control over baseball picture cards used to promote confectioneries was not detrimental to fair competition and that baseball cards were not so unique and indispensable a promotional technique that other bubblegum manufacturers could not compete on fair and equal terms with Topps. Elman cited several examples of successful promotional trading card series such as football players, retired baseball players, and non-sport sets featuring the Beatles and “Spook Theatre.” Moreover, but for the fact that Topps was the largest seller of bubblegum, there was no proof of any correlation between its superior market share and the sale of baseball picture cards.
Ultimately, Topps’ business model—tirelessly signing as many minor-league players as possible with hopes they would become big leaguers—was not an unfair or monopolistic practice. Because no monopoly was proven, the complaint was dismissed on appeal.
Fleer in the late 1960s
Despite its failure to break Topps’ hold over “current baseball picture cards,” Fleer remained the second largest manufacturer of bubblegum in the United States. Before the 1966 season started, Fleer announced it would be issuing a 66-card set dedicated to Dodgers pitcher Don Drysdale and had a representative, Bob Quinn, continuing to visit Florida training camps looking to sign players to contracts.
The “Drysdale set” Fleer issued in 1966, however, was actually the “All Star Match Baseball” game, with each of the game cards including a black and white puzzle piece of Drysdale on the reverse, such that all 66 cards were necessary to complete the puzzle.
Fleer had also tried to get the jump on Topps by sending contracts and $25 checks to all players chosen in the newly implemented draft, which upset some college coaches who feared their players could jeopardize their amateur status by cashing those checks.
Despite Fleer’s continued efforts to erode Topps’ market stranglehold, Fleer ultimately acquiesced and subsequently sold all of its baseball contracts to Topps in 1966 for $385,000 (approximately $3.4 million today). This would not be the last we would hear from Fleer at the courthouse, however.
Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 541, 64 N. E. 442 (N.Y. 1902).
Federal Base Ball Club of Baltimore v. National League of Professional Base Ball Clubs, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, 26 A.L.R. 357 (1922). Major League Baseball has a legal monopoly, “[t]he business is giving exhibitions of baseball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business.”
Hanna Mfg. Co. v. Hillerich & Bradsby Co., 101 A.L.R. 484, 78 F.2d 763 (5th Cir. 1935). Defendant Hillerich & Bradsby Co. will be referred to as “Louisville Slugger,” its more widely used tradename today.
Bowman Gum, Inc. v. Topps Chewing Gum, Inc. 103 F. Supp. 944 (E.D.N.Y. 1952). Topps also issued 9-card set of team photos in 1951 (Boston Red Sox, Brooklyn Dodgers, Chicago White Sox, Cincinnati Reds, New York Giants, Philadelphia Athletics, Philadelphia Phillies, St. Louis Cardinals, Washington Senators) and Major League All-Stars/Connie Mack All-Stars. These sets do not appear to have been subject of the litigation between Topps and Bowman.
Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2nd Cir. 1953). In April 1952, Bowman Gum shareholders approved the change of the company name to Haelan Laboratories. Philadelphia Inquirer, April 9, 1952: 4. Accordingly, the ensuing litigation lists Haelan—and not Bowman—as a party.
Haelan Laboratories v. Topps Chewing Gum, 131 F. Supp. 262 (E.D.N.Y. 1955).
In re Topps Chewing Gum, Inc. 67 F.T.C. 744 (1965). Baseball card sales in 1960: Topps $3,638,000 (approx. $34 million today), Fleer $300,000 (approx. $2.8 million today), and Leaf $100,000 (approx. $934,000 today); in 1961: Topps $3,475,000 (approx. $32 million today) and Fleer $355,506 (approx. $3.3 million today). The second series of Fleer’s 1961 Baseball Greats accounted for an additional $85,000 in sales (approx. $778,000 today) for 1962. Though distributed under the company name “Sports Novelties Inc.,” the 1960 Leaf issue is referred to in the hobby as “Leaf” and is referred to similarly herein. The FTC hearing examiner described the Beatles as “a group of singing troubadours imported from England”. Additionally, for football cards, the contract was made with the league and not the individual players. The players received no direct compensation—all money was channeled to league pension funds.
“The Week in a Busy World,” Atlanta Constitution, May 5, 1901: 42.
“Chewing Gum Stuck with Suit by Mize,” Daily News (New York), August 27, 1941: 284.
“Johnny Mize Asks Damages from Cambridge Gum Firm,” Boston Globe, June 25, 1942: 11. Mize appeared on two cards in the set: Nos. 39/40 with Enos Slaughter and Nos. 99/100 with Dan Litwhiler. It is unclear how many of each comprised the total.
“Mize of Cardinals Wins Court Test on Use of Name,” Boston Globe, September 5, 1941: 23.
“Mize Suit Against Gum Firm Dismissed,” Des Moines Register, June 28, 1942: 16.
“Spahn, Five Others Take Action in Gum Distribution Controversy, Boston Globe, May 4, 1949: 23. Although this case attracted little press, that Warren Spahn was involved is not surprising based on the battle he would have in the future regarding the publication of the “Warren Spahn Story,” which he contended painted him in a false (but positive) light and was published without his consent.
“A’s Stars Get Writ to Bar Use of Pictures on Gum,” Philadelphia Inquirer, May 7, 1949: 16.
“Haelan Merged into Connelly,” Philadelphia Inquirer, April 28, 1955: 30.
Bob Rathgeber, “Young Bob Quinn: Bubble Gum Exec,” Bradenton (Florida) Herald, March 17, 1966: 14.
Wayne Shufelt, “’Gummed’ Up,” Tampa Times, April 2, 1966: 10.
Paul Bedard, “Bubble May Burst in Baseball Card Suit,” Washington Post, June 20, 1979.
One of the pre-war sets I’ve long admired is the 1910–1912 T218 Champions set. The cards are double-sized compared to standard tobacco cards and much of the artwork is spectacular. Unfortunately, there are no baseball cards in the checklist—ruling out obvious samples to pursue and rendering the set mostly irrelevant to this blog.
However, there are a handful of toehold cards to choose from. The big name is alleged Black Sox bag man Abe Attell who features in the boxing portion of the checklist. But there are also Platt Adams, Frank Irons, and Abel Kiviat who as track and field athletes also ended up playing baseball in the 1912 Olympics.
Last month Jason generously sent me a well-loved Frank Irons card. I’m not sure he was aware of the baseball significance as much as he wanted to make sure I had a sample, any sample, of the set.* I don’t care that it’s mighty beat up, I just enjoyed the excuse to go chase down internet reference links about baseball in the 1912 Games.
*I’m generally incapable of getting rid of any cards once I have them.
Not only is “Baseball” listed in the Table of Contents,* there’s a writeup of the game, a box score, and a half dozen photos. Not quite as much information as the RG Knowles book had but still a fun read. I’ve gone ahead and screenshotted the PDF so I can summarize here.
*Since the PDF page numbering is messed up due to bilingual pages sharing the same page number the fact that Baseball starts on page 823 doesn’t help you navigate the PDF a all.
Because this is an official report about the games, the summary centers the Swedish experience. This is actually awesome since baseball had only reached Sweden in 1910 and they were still grappling with some of the fundamentals—especially regarding pitching—two years later.
Specifically, they hadn’t figured out how to throw curveballs and were worried about their ability to hit them as well. They ended up borrowing three pitchers and one catcher from the US team in order to have a semblance of fairness in the competition. While they were concerned about hitting, they do appear to have been proud of getting five hits and took special pride in Wickman’s* double.
*I can’t find a first name for him anywhere.
Of the toehold guys, two played in this game. Frank Irons was the starting left fielder, went 1 for 2, and made one put out. Abel Kiviat meanwhile played the whole game at shortstop, going 2 for 4, hitting a triple, stealing a base, scoring twice, and making two put outs.* Platt Adams only played in a USA vs USA game** but his brother Ben was the starting pitcher for Sweden.
*Which didn’t make it into the official report and Wikipedia doesn’t have a source for the second box score. Jim Thorpe also supposedly played in the second game (the first one was the same day as the decathlon competition); no idea if he had found his shoes by then.
The report also has a half-dozen photos of the game. The team photo of the Swedish side is great and the other photos showing Swedish action in the game are a lot of fun too. As I noted earlier it’s clear that the Swedes took pride in their five hits since one of the four game highlights is Wickman’s double while another is Welin’s single.
I do wish we had more photos of the US players—or at least a team photo—but I can’t complain about what’s here.
If you’re a reader of this blog, which I’d bet a lot you are (at least today!), you’re not content simply to collect baseball cards. You enjoy learning and knowing about the cards you hold in your hand or dream about on your want list. While in many cases our research into a set turns up more mystery than history, we are occasionally lucky enough to go directly to the source and have all our questions answered.
Our latest series, “Creating the set,” features interviews with the creators directly responsible for the various cards and collectibles that comprise the Hobby. Leading off the series are the Baseball Treasure sets of officially licensed MLB coins produced in 2018 and 2019 by Boston-based florist-collector Rick Canale.
Each base set included 30 copper coins, one player per team, mounted in cardboard holders the size of standard baseball cards. Coin fronts featured a portrait of the player, along with position and team. 2018 versions also noted the year. Coin backs depicted an action pose captioned with a career highlight.
The holders changed considerably from 2018 (Perez above) to 2019 (Yelich below), evolving from a single 2.5″ x 3.5″ cardboard slab that rendered both coin sides visible to a fold-over model with a window for only the front of the coin. Fronts featured a minor re-design, omitting player name and uniform number in favor of more prominent team identifiers.
Each year of the release included special premium edition coins, such as this 2018 gold edition of the Aaron Judge coin.
With these basics out the way, let’s catch up with the set’s creator.
SABR Baseball Cards: Rick, before we jump into the Baseball Treasure sets themselves, tell us a little bit about your own background as a collector.
Rick Canale: I picked up my first cards in 1978 when I was seven years old and from 1979-86 I was completely hooked. After that I still bought a few packs a year but other interests like cars and girls took over. College too eventually. The birth of my first son in 2004 brought me back into the Hobby, and thankfully my mom did not throw out my baseball cards. While my sons never got into card collecting, they do love Fenway. As for favorites, I loved those late 1970s Red Sox teams: Fisk, Lynn, Scott, Hobson, Eck, etc. I also enjoyed the speed-power combo guys like Rickey Henderson and Cesar Cedeño, but it’s the sluggers like Greg Luzinski and Dave Kingman who really captured my heart.
SABR Baseball Cards: When did you get the idea to produce a set of your own. Was this a lifelong dream or something that just popped into your head one day?
Rick Canale: I think we all want to make our own set at some point. This was kind of something that fell in my lap. My best friend from high school was looking for something to do after selling his company. He had connections at a mint in Massachusetts and I had connections to MLB and various distributors. Our early pitches to locals were not met with much enthusiasm, but when we pitched the idea to MLB of collectors winning real silver or gold they really ran with it.
SABR Baseball Cards: What came next? How did the idea become an actual product?
Rick Canale: There were a ton of hoops to jump through. Things like getting calls back from MLB and the MLBPA did not happen overnight. I was fortunate to have some connections who helped keep things moving. I’ll add that there was a lot of secrecy, for example contract language that can’t be shared.
SABR Baseball Cards: What prompted you to decide on coins rather than cards or some other form of baseball collectible?
Rick Canale: Coins was the natural choice because of my friend’s connections to the mint. Keep in mind also that cards would not have been possible due to the exclusive licensing that Topps already had in place. In fact, many of the changes in the product between 2018 and 2019 were due to Topps regarding our initial release as too similar to baseball cards. It was a major setback for us that required us to change our packaging and mounts. Sales suffered as well.
SABR Baseball Cards: Your debut offering included one player for each of the 30 teams. How were the players selected?
Rick Canale: One player per team was how we chose to create the set. However, we definitely saw that the market is driven by a small handful of teams. For each team we focused on talent, character, and the likelihood of being traded. Drafting the list of players was fun, though finding a Marlin was tough. We actually asked MLB if we could use Don Mattingly, the team’s manager!
SABR Baseball Cards: I know Todd Radom worked with you on the Baseball Treasure logo and packaging. How did you go about getting the coins themselves created, including the artwork?
Rick Canale: Yes, the coins themselves were created by a person whose craft is coin dyes, but Todd created all the mounts and associated artwork. I cannot say enough great things about Todd. His work is incredible, and the person matches the talent. His friendship is the greatest asset I kept from the venture.
SABR Baseball Cards: If you could turn back the clock, are there changes you’d make to the sets, notwithstanding the ones forced upon you by Topps?
Rick Canale: More players from the most marketable teams as well as more star power. We also would have spent less on advertising and more on prizes (e.g., the silver and gold coins). Still, being featured on MLB Network was a thrill.
SABR Baseball Cards: What were some of the other challenges in marketing and selling these coins?
Rick Canale: First the positives. We sold great at the Hall of Fame (1000 packs the first year), on MLB.com, in hobby shops, and at ballparks. However, not being in Target and Walmart killed us. Getting our coins into people’s hands was of course key, and this was too hard to do without the two biggest guns supporting us. 7-Eleven did pick us up, but they really butchered the product. They wanted open packs, no mystery at all, which also meant no chase for silver or gold. In Boston, for example, once Betts and Benintendi were gone the box would just sit on the shelf with no sales.
SABR Baseball Cards: What was it like to hold an actual Baseball Treasure coin in your hand for the first time?
Rick Canale: It was awesome. I put one in my pocket every day that first season.
SABR Baseball Cards: Fantastic! Probably safe to say that’s a feeling most collectors can only dream of, and you made it a reality. Thanks for speaking with us, and thanks also for putting out two terrific sets of baseball coins. Anything final your like to share with SABR Baseball Cards readers?
RickCanale: We have something of a surprise for Ichiro collectors. Before we closed up shop we also produced 51 fully licensed silver coins of Ichiro that collectors may see hit the open market timed with Ichiro’s Hall of Fame induction. Be on the lookout!
Gen. George S. Patton believed fervently in reincarnation—a passion that served as an integral theme in the 1970 Academy Award–winning biopic about him. Often, Patton would declare to colleagues that he had participated in some renowned battle waged centuries before his birth.
Portraying the blustery general in that beloved biopic was, of course, George C. Scott. Few roles have so defined an actor as “Gen. Patton” did Scott—and have so defined a historical figure in the public consciousness (despite its inaccuracies). Scott’s steely-eyed, soldier-slapping performance earned him the Oscar for Best Actor (although he refused to accept it, due to his longstanding scorn for the craft of acting turned into a competition).
Six months after George C. Scott won, and left unclaimed, his Best Actor statuette at the 43rd Academy Awards, the Boston Red Sox consummated a ten-player trade with the Milwaukee Brewers that included first baseman George Scott. Not exactly the reincarnation of Gen. Patton, George Scott was something of a doppelgänger to the actor who so recently portrayed Patton. Known as “Boomer” because of his prodigious power, George Scott’s middle name also began with “C” (Charles). Stranger still, incoming to Boston was right-handed hurler, Marty Pattin. The trade included several other big-name players, among them Jim Lonborg and Tommy Harper, but the headlines in each town could have proclaimed GEORGE C. SCOTT SWAPPED FOR PATTIN. (Pattin, incidentally, began his career wth the California Angels, whose stadium in Anaheim sits about 30 miles from Gen. Patton’s birthplace of San Gabriel.)
Adding a touch of the ephemeral, George Scott’s birthday of March 23 comes one day after that of esteemed actor, Karl Malden, who, of course, portrayed Patton’s real-life colleague and onscreen foil, Gen. Omar Bradley.
With such “cinematic pedigree,” George Scott would have been fully validated in choosing as walk-up music for his at-bats Patton’s trademark echoing of trumpet triplets.
And “Old Blood and Guts” certainly would have appreciated the brutish bravado of George Scott’s infamous necklace made of “second-basemen’s teeth,” not to mention that Scott’s penchant for donning a helmet in the field would have passed muster with the by-the-book general who demanded that his soldiers wear their helmet practically at all times.
George Scott enjoyed several of his best seasons while in Brewer blue, twice topping the American League in total bases and claiming the home run and RBI crowns in 1975. Similarly, Marty Pattin found instant success in Fenway Park, winning a career high 17 games in his first of two seasons with the Bosox, before Boston abruptly shipped him to Kansas City after the 1973 season. (Scott and Pattin briefly marshalled what remained of their diminishing talents for the 1979 Royals.)
Boomer eventually was reincarnated as a Red Sock, returning to Fenway in the deal that made Milwaukee famous to Cecil Cooper (and vice-versa). In Boston, Scott enjoyed his last big season, slamming 33 home runs and scoring 103 in 1977. He wasn’t able to help Boston shrug off New York in its epic collapse of 1978, hitting .163 once the calendar turned September and the erosion of Boston’s lead over the Bronx Bombers accelerated (although Scott did go 2-4 in the pennant-deciding finale and was twice stranded in scoring position when his run would have proved crucial).
In a bit of final irony, Boomer moved south of the border when no suitors called on him during free agency, spending four seasons in the Mexican League. Somewhat conversely, Lieutenant Patton, on the way up in his military career, spent nearly a year in Mexico attempting to track down the revolutionary, Pancho Villa, not long before the United States’ entry into World War I would shape his destiny.
Sadly, George Scott lived only until age 69; George C. Scott died when he was 71; and Gen. George S. Patton, of course, succumbed at age 60, two weeks after an automobile accident.
“Until another example, with some very solid provenance/history, surfaces that is made of wood to compare yours to I would think it a bit difficult for anyone to state with certainty that it was used in Forbes Field.”
Hunt Auctions – from email dated October 29, 2019
I stated at the end of my blog post on March 1st that I had hit the pause button on my journey to try and authenticate the wood number 2 that was supposedly from Forbes Field that my son had given me as a gift for my birthday last October.
With the arrival in late April of an issue of Sports Collector’s Digest I hit the play button again. In that issue was a Man Cave article that mentioned Stadia dealer Richie Aurigemma, who has an impressive inventory of seats, signs, railings, and other artifacts from past and current ballparks for sale.
I emailed Richie and received a reply back that he concurred with the other people that had weighed in so far that he had never seen a wooden scoreboard number from Forbes Field.
Things were looking bleak, but then on May 3rd someone wrote a comment on my March 1st blog that they had seen a wooden number 9 from Forbes Field and that it was in the Baseball Hall of Fame!
The person who commented also added that he thought the wooden numbers were used on the “Next Game Here” sign that was adjacent to the larger scoreboard during the 1969 and 1970 seasons. He also included a link to a photo the included the “Next Game Here” sign.
I emailed the Research Department of the Baseball Hall of Fame on May 4th (HOF was closed at the time due to the pandemic) and they confirmed that they indeed did have a wooden scoreboard number 9 from Forbes Field and that it was still on display.
I also posted an inquiry on the Forbes Field Facebook page to see if anyone had information on the “Next Game Here” sign. Someone did reply that they have a wooden sign that reads JUNE on one side and AUG. on the other side, and also posted a photo that was probably taken in 1963 of the Scoreboard – see photo below. At the bottom of the scoreboard is a “Next Game Here” area. From the photo it looks like wooden numbers were used earlier than 1969 as well. I identified the players and coach from the Dodgers in the photo and have included their names.
The Baseball Hall of Fame has recently opened and a friend of mine took his family there over the 4th of July weekend. He took photos of the wooden number 9 that they have on display in the Sacred Ground exhibit area and it does match up well with my number 2. He eyeballed the dimensions of the number on display and again these are consistent with my number.
Number 9 Photos are from HOF. Number 2 Photo is my wooden number.
It has been 9 months since I received my birthday present and I can now say with a very high degree of certainty that it is an authentic number from Forbes Field. I would not be able to make that statement without the help from a number who not only took the time to respond to a stranger on a baseball journey, but in many cases also did additional research to help me with my quest.
A shout out and thank you to all the following people and organizations for their help – Hunt Auctions, The Pittsburgh Pirates, Len Martin (the unofficial Forbes Field historian who has written books on Forbes Field and Fenway Park), Frank Thomas “The Original”, the co-chairs of the SABR Ballparks Research Committee, Richie Aurigemma, Matt (who commented on my blog), members of the Forbes Field Facebook page (who commented on my post), the Manager of Reference Services at the Baseball Hall of Fame and my friend who took the number 9 photos.
I have been reading about or studying the integration of baseball for many years, at first principally because I wanted to write about the effect that integration had on the quality of the game. Obviously if you add Jackie Robinson to a league, that league is not just ethically and morally better, the quality of play is also better. Much better. I mean, this is JACKIE ROBINSON for God’s sake. And then Doby, and Campy, and Irvin, and on and on.
Jackie Robinson and the extraordinary cohort of people who integrated the game in the 1940s and 1950s will always be baseball’s best story, one that can not be over-told. We (myself included) have been guilty of treating this story as a culmination rather than as an important chapter in an ongoing struggle. Today’s decreased number of Black American players, to say nothing of managers and executives, is one constant reminder of progress yet to be made. Another are the tales of just how difficult the lives of black players can be in today’s Major League Baseball. Like the rest of America, baseball has a long, long way to go.
Additionally, my integration-era research has led to collateral damage in my relationship with Jim Crow (pre-1947) baseball, and its cards. I still appreciate the history, and the stories, and I understand how great Wagner, Cobb, Ruth, and DiMaggio were, but the stories are a little less romantic, and maybe the players were all a little less great than I thought. It’s the other side of same coin–you can’t believe that Robinson, Mays and Aaron made the game significantly better without also believing that not having them made the game significantly worse.
For Christmas in 1981, I was given a beautiful 1982 calendar which I believe had been advertised in the New Yorker. With brief exceptions, it has hung on a wall in my dorm/apartment/house/office for the past 38 years–it is six feet away from me as I type. (In 2021, for the first time since 2010, the days will align.)
Its 12 pages tell the story of baseball cards chronologically–January is for 19th century tobacco cards, while the last row of December shows 1981 Topps. If you lay the calendar on a table and flip through months (the only way to really do it–the pages are 22″ x 14″), you get a high level view of 100 years of the hobby. And of Major League baseball.
What the calendar also shows, visually and starkly, is Jim Crow: page after page, row after row, of White dudes.
The first Black face belatedly shows up in August, in the penultimate row, appropriately the 1949 Bowman Satchel Paige. The final August row features 1951 Topps, and includes both Monte Irvin and Luke Easter. These three men were the 7th, 10th, and 11th Black players in the Major Leagues in the 20th century. There are four more Black faces on the page for September, which highlights the 1951 and 1952 Bowman sets.
My calendar almost always (as now) is hung so as to display October. I don’t know if it was deliberate on the part of the designer, probably not, but October’s top row is like a punch in America’s face, and the next three rows don’t really let up.
Here is a thought experiment. Imagine seeing a binder of 1956 Topps cards, except that all of the Black players have been removed. No Mays, no Aaron, no Jackie, no Banks, no Clemente, no lots of other stars. There are still great players in the binder–Mantle, Williams, Koufax, Feller, and more–but its obviously a worse group than the real set. Not just a little worse, immeasurably worse.
In other words, it would be … just like 1934 Goudey. Or 1940 Play Ball. Or T-205. Looking through that denuded 1956 binder would be at the very least uncomfortable, and more likely offensive, to a modern collector. And that is why I struggle with all the pre-war cards sets.
As Nick wrote a couple of years ago, “while cards have always existed, their role in defining who ‘real’ ballplayers are cannot be ignored.” If I collect cards to celebrate the baseball of the time, I have to ask myself: do I really want to hang a frame on the wall that glorifies segregated baseball? The 1934 Goudey card set, the T-206 set, and all pre-war card sets, perpetuate the lie that “organized” baseball sold America for decades, that these were the best players, the “real” players.
While major league baseball was barring great Black players from playing in its leagues, and most white newspapers were complicit in not reporting on the Negro Leagues, companies like American Tobacco and Goudey were not putting Black players on baseball cards. There were a lot of minor league cards or sets in these years, there were sets for pilots, and actors, and dogs, and trees, but nothing for the many fans of Oscar Charleston or Bullet Joe Rogan or Biz Mackey. Didn’t they smoke, or chew gum?
Had any of these companies chosen to make a Negro League set, or, better yet, incorporated Negro League players into their flagship sets, it might have led to increased and earlier calls for integration, and would have made these players “real” to kids all over America. But they did not.
When it comes to baseball cards, the lie began to dramatically unravel in the 1950s. By the end of the decade, nearly 10% of the players on the field had dark skin, and many of these were among the best players in the sport. If you collected, some of the best and most sought after cards depicted players who you might not have heard of had they played a decade earlier. In 1956, ten years after White America wondered if Jackie Robinson would be good enough, there were 52 Black players on big league diamonds. Nine of them are in the Hall of Fame. Nine.
I have been dabbling in the cards of the early 1950s in recent years. I don’t have any of the sets and doubt I ever will, but enjoy picking up an occasional example, including Ted Williams or Yogi Berra or Duke Snider.
Sing the praises of pre-war cards and players as you wish. But the 1950s are the first time when the best players were allowed in the major leagues and in baseball card sets. Both enterprises, belatedly, had become legitimate.
Author’s note: All teams noted refer to their most recent MLB incarnation.For example, the San Diego Padres here are the MLB team and do not include cards/players from the PCL franchise of the same name.
This post celebrates a set of cards largely off the radar to most collectors but historic nonetheless, and it begins with an ambiguous question. What was the first baseball card to depict a Hall of Famer for each of baseball’s current and historic franchises?
To help clarify, I’ll start with a couple of teams featured on SABR Baseball Cards Twitter.
When most collectors imagine an early Montreal Expos card of a Hall of Famer, good chance they picture this.
However, this didn’t become an Expos card of a Hall of Famer until 2003 when Carter made the Hall. What I’m looking for here is the first time a collector could hold up an Expos card and say, “Hey, this guy’s in the Hall of Fame!” and this would have been 23 years earlier when Expos legend Edwin “Duke” Snider headed to Cooperstown.
At that time, there was only this single card depicting Snider in his Expos colors, his coach card from the 1976 SSPC set. (Yes, I’m ignoring team cards and team issued photos here.)
This Snider card remained the only Expos baseball card of a Hall of Famer until Larry Doby made the Hall in 1998, conferring HOF status on this Topps/OPC card from 1973.
San Diego PadreS
Continuing through the 1969 expansion teams, the answer is once again a subject better known for his tenure on other teams. When you think Billy Herman, you probably think of the ten-time all-star second baseman and baseball cards like this, if not his 1950s and 60s coach/manager cards with the Dodgers and Red Sox.
But the first time a young Padres collector could put a Hall of Famer in his pocket to take to school was in 1978, thanks to this Family Fun Center card of the Friars batting coach. As the back of the card notes, Herman got the call from New York in 1975, making this card a HOFer card the moment it was issued.
Kansas City Royals
It’s hard to think of Royals Hall of Famers and not instantly (or exclusively!) think of George Brett, who made the Hall in 1999. However, that didn’t mean Royals collectors had no Hall of Famers in their collections until then.
Eight years earlier, well traveled hurler Gaylord Perry made the Hall, thereby promoting several of his 1984 cards to Hall of Fame status. The Fleer set alone had three, including one with Brett, to go with two highlights cards from Topps.
Six years before Perry, in 1985, Hoyt Wilhelm’s plaque went up in Cooperstown. Like Perry, Wilhelm had pitched for seemingly every team. Unlike Perry, his cardboard legacy with the Royals was quite thin, paper thin to be exact. In fact the knuckleballer’s only card came courtesy of the 1969 Topps Stamps set. (UPDATE: Per Tim Jenkins, Wilhelm was also a Royal in the Deckle Edge set that same year.)
Of course the prior year another Royal saw his plaque go up. The Killer became a Hall of Famer in 1984, elevating his 1976 SSPC card with Kansas City to HOF status.
In reality, however, Royals collections were well stocked with Hall of Famer cards well before 1984, thank to Bob Lemon’s induction in 1976 and his early 1970s Topps and O-Pee-Chee manager cards.
The final 1969 expansion team was the Seattle Pilots. As the team existed for only a single season and wasn’t exactly stocked with talent, there is not a single Pilots card of a Hall of Famer. This Ichiro retro card from 2010 may be as close as the Pilots ever come.
UPDATE: Thank you to David Bender for alerting us to this 1992 Leaf Studio Heritage card of Class of 2014 Hall of Famer Paul Molitor decked out in Seattle Pilots gear. If only!
Following the 1969 season, Bud stole the Pilots and renamed them the Milwaukee Brewers. Unlike the other three teams covered thus far, the first Hall of Fame Brewers card is very likely the one you would have guessed.
In 1982, Hank Aaron became the first Brewer to enter the Hall. Among his many Brewers cards, 1975-76 and post-career, we’ll go with card #660 from 1975 Topps.
With the new locale and nickname in 1972, I’ll distinguish the Rangers from their not very long and not at all storied history as the (new) Washington Senators. If we don’t see Rangers on the jersey or a “T” on the cap, it doesn’t count.
Unless it’s Teddy Ballgame, in which case an airbrushed cap, psychedelic team lettering, and satin collar is all we need!
Major League Baseball returned to the Pacific Northwest in 1977 with the arrival of the Seattle Mariners. For the first 14 years of their existence the Ms had no Hall of Fame baseball cards. That changed when Gaylord Perry entered the Hall in 1991. Perry has dozens of cards with Seattle, but his earliest comes from the 1982 Topps Traded set.
Toronto Blue Jays
1977 also marked the first year of the Toronto Blue Jays franchise. McCarthy postcards issued that same year included 1972 inductee Early Wynn and 1986 inductee Bobby Doerr.
However, my focus in this article is on “true” baseball cards, a notion we often note around here could be a whole series of posts in itself. With this stricter criterion in mind, Jays collectors would need to wait two more decades for a card of a Hall of Famer.
With Phil Niekro’s induction in 1997, his lone Toronto card (1988 Classic) became the inaugural Hall of Famer baseball card in Blue Jay collections and it would remain the only such card for more than a decade until Rickey Henderson’s 2009 induction.
The Rockies, who began play in 1993, famously had a total of zero Hall of Famers until the recent election of Larry Walker to the Class of 2020. Not surprisingly then, Walker provides (or will provide, if you want to be technical) Rox collectors with their first ever Rockies HOF card.
Walker, of course, has over a billion different Rockies cards (okay, not quite), but I’ll feature his 1995 Topps Traded and Upper Deck cards as among the many from his first year with the squad.
Entering the league the same year as the Rockies, the Marlins can boast baseball cards of numerous Hall of Famers and may even add another if the new Jeter/Topps collaboration extends into the dismal GM chapter of his career. The first time Marlins collectors could know the joy of a Hall of Famer in their midst was thanks to the 2002 Topps set, which included a manager card (okay, eight different-ish ones) of recent inductee Tony Perez (HOF 2000).
The D-Backs joined the National League in 1998, and have so far had two Hall of Famers on their roster: Roberto Alomar (2011) and Randy Johnson (2015). Their first HOF card is therefore of Alomar, and you can take your pick from nearly 200 of them, all from 2004.
UPDATE: Am thankful for our terrific readers, including fellow SABR Baseball Cards author Artie Zillante, for turning up this nugget from the 2002 Keebler Arizona Diamondbacks set. If you’re good with the shared real estate, then Yount (HOF 1999) definitely nudges Robbie Alomar aside.
Tampa Bay Rays
The team formerly known as the Devil Rays entered the American League in 1998 with the instant star power of Fred McGriff and Wade Boggs, quickly followed the next year by Jose Canseco. Of the three, Boggs (2005) is the only one in Cooperstown, hence the man responsible for the first Devil Ray HOF cards. He has too many cards to count in the various 1998 sets, but here are two.
With the change in both geography and nickname, I’ll treat the Nationals franchise as distinct from its Expos ancestry and just treat it as if the Nats were a brand new team that appeared out of nowhere to start the 2005 season. While the Nats may claim Tim Raines, Andre Dawson, Walter Johnson, and even Josh Gibson in their Ring of Honor, I’m starting the franchise with Ryan Zimmerman.
Regardless, Nats fans didn’t have to wait before adding a HOF card to their collections. All they had to do was get lucky opening packs that year.
Houston Astros/Colt .45s
Having looked at baseball’s newest franchises from 1969 forward, we’re now ready to go in reverse. First up are the Houston Astros, who entered the National League in 1962 as the Colt .45s.
Of the future Hall of Famers (Nellie Fox, Eddie Mathews, Robin Roberts, Joe Morgan) lurking in 1960s Astros sets, the first to make the Hall was Roberts in 1976. Another Astro, Yogi Berra, made the Hall four years earlier but his first Astros cards didn’t come until much later. Therefore, Roberts it is!
New York Mets
The Rajah had been a Hall of Famer for 20 years when he joined the Mets as their third base coach in 1962. However, there was no immediate cardboard to herald his arrival. The closest we come is a 1966 James Elder postcard.
Baseball card purists (emphasis on “card”) may prefer this 1962 Topps card of Casey Stengel, which gained Hall of Fame status upon the Old Perfessor’s 1966 induction. Not the airbrushing department’s best work, but perhaps it was part and parcel for the altogether woeful season Mets fans endured that season.
los angeles/california/anaheim angels
Too many official name changes to keep track of here, but you know who I mean. The Halos joined the American League in 1961, the same year MLB adopted the 162-game schedule. Their wait on a HOF baseball card was decidedly longer than that of Mets fans. It was not until Frank Robinson made the Hall in 1982 that Angels collectors could add a HOF card to their binders.
Robinson’s first Angels “card” is from the hard-to-find 1972 Topps Candy Lid test issue, and is much like the 1962 Stengel in that Frank appears as an Angel in name only.
Rather than rectify the wardrobe malfunction the next year, Topps may have actually made things worse with its 1973 release.
His 1973 photocard aside, it was not until 1974 that Angel fans (and Rodin fans!) truly had a Robby card they could be proud of.
Washington Senators II
These are the Senators, 1961-1971, not to be confused with the Senators, 1901-1960, which means there will be no Walter Johnson cards to consider. As was the case with the Rangers team they became, their first HOF card was Ted Williams.
Just as the new Senators started up in D.C., the old Senators headed to the Minnesota and became the Twins. The star of the team at that time also (in 1984 upon induction) gave Twins fans their first Hall of Fame baseball card.
The team formerly known as the St. Louis Browns began play in 1954 and would not have an eventual Hall of Famer on a baseball card until 1957 when they added three to the cardboard lineup.
However, it was not until 1983 that even the first of these men received his call from Cooperstown. First Orioles HOF baseball card honors instead went to Robin Roberts who made the Hall in 1976 and had cards with Baltimore as early as 1963.
My focus in this article has been on expansion teams or franchise moves that ditched both the city and the nickname. As such I skipped over the Oakland A’s, Kansas City A’s, Los Angeles Dodgers, and the like. All told, that leaves me with 16 modern-era franchises left to cover in a future article.
Unlike the cards identified in this article, where any one of them could be had in good shape for less than $10, the cards in the next article would be a bit more difficult to collect, with pre-war cards of Ty Cobb, Walter Johnson, Christy Mathewson, Honus Wagner, and Babe Ruth representing nine of the sixteen teams.
Historically, the New York Yankees’ AAA teams were in the East or Midwest. The Newark Bears of the International League were owned by Yankees and played in Ruppert Stadium, named for Yankees owner Colonel Jacob Ruppert. The Kansas City Blues were a Yankees affiliate in the American Association at the time of the Athletics move to Kansas City in 1955. Additionally, Syracuse, Columbus and Scranton/Wilkes-Barre have had long stints as Yankee outposts. But in 1978, the Yankees found themselves affiliated with Tacoma of the Pacific Coast League.
The Bronx Bombers’ stay in the Pacific Northwest was planned from the outset to be for only one season. The Yanks were set to play in Columbus, Ohio, but the ballpark would not be ready until 1979. The Twins pulled out of Tacoma after the 1977 season leaving “The City of Destiny” as the only destination for New York.
This one and done season is commemorated by a 25-card, team-issued set sponsored by Puget Sound National Bank and produced by Cramer Sports Promotions. This is the same Cramer who would go on to form Pacific Trading Cards. I have owned the set for years and always found it intriguing. My favorite aspect of this set is the “TY” logo on the cap, jacket and jersey. It is a great take on the traditional Yankees script.
The 1978 PCL Co-Champion Yankees (Final series against Albuquerque was rained out) were managed by ex-Seattle Pilot, Mike Ferraro. Mike was originally signed by the Yankees as a player and returned to the fold as a minor league skipper. His success in Tacoma may have helped earn him the Indians’ managerial job in 1980.
Like Mike Ferraro, Jerry Narron would go on the be a big-league manager. The career backup catcher would pilot Texas and Cincinnati.
The most interesting card in the set belongs to pitching coach Hoyt Wilhelm. Apparently, The Hall-of-Fame knuckleballer could teach pitching mechanics beyond mastering a knuckleball grip.
In addition to Hoyt’s card, there are several other shots snapped in the Cheney Stadium clubhouse. Since the photos were taken early in the season, inclement weather may have forced the photographer inside. I can attest to the fact that few stadiums are as cold and damp as Cheney in April and May. One such example is this flattering image of Dave Rajsich.
Generally, the photos are of poor quality, with faces obscured by shadows. The low-angle photos coupled with the shadows make it hard to discern faces, rendering some players almost indistinguishable. Domingo Ramos and Damaso Garcia are prime examples.
The card for Tommy Cruz is another example not being able to see facial features. He is the sibling of the great Astro and Cardinal, Jose Cruz, and the uncle of Jose Cruz, Jr.
Another brother of a long-time major league player is Brian Doyle, whose brother Denny toiled with the Phillies, Angels and Red Sox. Brian’s photo is the only one not taken at Cheney Stadium. He is pictured in the road uniform, which features a basic (Tacoma) Yankees away jersey plus a logo patch on the sleeve.
Several other players saw some action with New York and other clubs. Dell Alston had a stint with Oakland, while Kammeyer, Werth and Zeber played in the Bronx.
Also, Mets fans may remember Roy Staiger. The utility man always reminds me of the actor Roy Steiger.
Now that you know more than you ever hoped to know about the 1978 Tacoma Yankees, I am sure you will race over to eBay or COMC to grab your own set. If you are willing to settle for a card or two, I have some duplicates.