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

Author’s Note: This is the second in a multi-part series [Part I] that will explore the legal backstories that have shaped (and continue to shape) the baseball card industry. Once considered mere ephemera used to induce children to buy penny confections (or cigarettes!), the industry has been inundated by costly legal battles waged in the name of baseball card supremacy.

Although Fleer had hoped to wield the Federal Trade Commission as its cudgel, the commission ultimately found that Topps’ business practices did not constitute an unlawful monopoly and the matter was dismissed in Topps’ favor on April 30, 1965. Undaunted, Fleer renewed its efforts in 1966 to sign players at spring training camps and issued its “All Star Match Baseball” set, which featured a 66-piece puzzle of Dodgers ace Don Drysdale on the reverse side of the game cards. After this set was issued (and perhaps a result of disappointing sales) Fleer’s resolve faded, culminating in the sale of its entire player contract portfolio—some 3000 players—to Topps later that year for $395,000 (approximately $3.4 million in today’s dollars).

1967 Topps Bill Skowron (#357), Bill Denehy/Tom Seaver (#581), Bob Gibson (#210)

Having dispatched its closest competitor, Topps was poised for sustained dominance in the baseball card market. Indeed, the 1967 set was its largest to date with a checklist comprising 609 bright, colorful cards. Unfortunately for Topps, its newly bought peace would be fleeting. The next assault, however, would be waged not by rival card manufacturers, but by new adversaries—the Major League Baseball Players Association (MLBPA) and Major League Baseball (MLB).

Frank Scott and the Proto-MLBPA

A “short, feisty, impeccably dressed man,” Frank Scott was road secretary for the New York Yankees from 1947 through 1950 and developed close relationships with Yogi Berra, Whitey Ford, and Mickey Mantle. In exchange for a 10% commission, Scott began to represent those players for off-field income opportunities—namely personal appearances and product endorsements—and eventually developed a client list of over 90 baseball stars including Willie Mays, Jackie Robinson, Hank Aaron, Eddie Mathews, and Robin Roberts. At his peak, Scott was earning $250,000 per year (approximately $2.4 million today) pursuing endorsement deals. One of those deals included landing Mickey Mantle a $1500 payment from Bowman for rights to a photo of Mantle blowing a bubble (although no such card was ever issued).

The Sporting News, September 23, 1953

In May 1959, Scott was named director of the nascent MLBPA—an organization originally created to help ensure the players’ player pension fund was being adequately funded. He continued his player representation business and staffed a provisional MLBPA office at a New York City hotel. Although he had been paid $1000 ($9600 today) a year by Topps for his assistance getting players to sign baseball card contracts, Scott ceased all relationships with Topps after becoming head of the MLBPA.

Considered “too smart to meddle in the players’ salary debates,” Scott avoided contract negotiations between his clients and their respective ballclubs. Similarly, the MLBPA was not yet recognized as a union under Scott’s leadership and did not engage in collective bargaining with MLB on behalf of the players. The direction of the MLBPA, however, changed drastically in late 1965 as a search was undertaken to find a full-time director and establish a permanent office.

The Marvin Miller Experience

Though not their first choice, the stars aligned when the players’ landed Marvin Miller, then chief economist for the United Steelworkers. Under Miller’s leadership, the MLBPA saw unprecedented progress for players’ rights and eventually led to his election to the Baseball Hall of Fame in December 2019.

2015 Topps Heritage (#NF-9)

Miller’s nomination for Executive Director was ratified by a player vote on April 11, 1966. He was given a two-and-a-half-year contract starting July 1, at $50,000 per year (approximately $430,000 today), plus a $20,000 expense budget. In need of quick revenue to fund association operations, Miller prioritized a group licensing program. With Frank Scott’s help, the MLBPA first inked a deal with Coca-Cola to print player photos on the underside of bottlecaps. The team owners demanded that Coca-Cola pay separately to use of their club logos. Coca-Cola refused, however, so the bottlecaps were printed with blank hats.

At the time Miller took the helm, the players were still being paid $125 per year by Topps to use their photographs, the amount unchanged for over a decade. Miller met with Topps’ president Joel Shorin in the fall of 1966 looking to renegotiate. Shorin was dismissive of the ballplayers’ leverage as he quipped, “I don’t see your muscle.” Miller, however, was ready to play hardball with Topps:

“In early 1967 Miller suggested to the players that they stop renewing their individual Topps contracts and boycott Topps photographers. This was the only way, Miller advised, that they could get Topps to deal with them. Although the action was voluntary, Topps was able to take no more than a handful of photos during the 1967 season, and, with the dispute unresolved, none at all in 1968.”   

(Mark Armour, SABR Baseball Cards)

Around this same time, the baseball club owners established Major League Properties, Inc. looking to monetize the use of their logos depicted in the photos taken of the ballplayers. After initially refusing to engage with the owners for these rights, Topps was warned that future player photos should be taken in “street clothes, or in pajamas or bathing trunks.” Accordingly, uncertainty created by the demands made by the club owners and the MLBPA were the main reason hatless, underbrim, and duplicative photos proliferated Topps’ offerings the second half of the 1960s.

The players’ boycott convinced Topps to pursue further talks with the MLBPA in early 1968. Topps’ opening volley was no olive branch, however. At a meeting on April 23, Shorin presented Miller with a legal opinion stating that the MLBPA’s group licensing program violated antitrust laws. The MLBPA responded with an opinion that Topps’ contracts with the players violated antitrust laws. (Ironically, both Topps and the MLBPA would soon have to defend a lawsuit that alleged that they conspired together to violate antitrust laws.)

Fleer (Briefly) Back in the Mix

In a move designed to enhance the MLBPA’s bargaining position with Topps, Miller proposed giving Fleer exclusive rights, beginning in 1973, to sell baseball cards with gum for up to 80% of the MLB player pool—in exchange for $600,000. Alternatively, the MLBPA offered Fleer immediate rights for all players sold with a product other than gum. Fleer rejected both offers, claiming it was only interested in cards sold with gum, and that 1973 was simply too long to wait.

Detente

Despite the hostile start to their renegotiations, Topps and the MLBPA were able to reach an accord on November 19, 1968 that doubled the player’s annual payment to $250. More importantly, Topps agreed to pay royalties on its annual baseball card sales revenue, resulting in $320,000 (approximately $2.5 million today) paid to the MLBPA in the first year of the deal alone. The deal also allowed the MLBPA to grant a license for any products that were at least 5” x 7” and sold for 25 cents, although Topps reserved the right of first refusal as to any such proposal.

The MLBPA issued numerous trading card licenses during the 1968-1974 period to companies like Beatrice Foods, ITT Continental Baking, Kellogg’s, Pro Star, Inc., Madaras, Inc., Pasco, Inc., and Charles Linnett Associates—several of which were granted over Topps’ objection. In 1969 the MLBPA granted Sports Promotions, Inc., a license to market baseball cards “with cheap novelty rings, iron-on patches, and similar novelties so long as the value of the novelty represented half of the total retail value.” Topps complained to the MLBPA that their rights had been infringed when they learned of the agreement. Topps also objected to Kellogg’s selling baseball cards alone through the mail in 1974. Officially licensed by the MLBPA, Kellogg’s sold sets 54 baseball cards for $1.50, plus a box-top from box of cereal (that typically cost 60 cents). The MLBPA did not revoke Kellogg’s license but obtained a waiver from Topps to allow the continued license for cards sold in that fashion. (Topps could not object to the Kellogg’s cards inserted as premiums in Kellogg’s cereal boxes.)

Despite some occasional complaints to the MLBPA, several years of prosperity followed for Topps and by 1974, its sales of baseball cards and gum approached $6 million annually (approximately $34 million today). Pleased with their arrangement, the contract between Topps and the MLBPA was extended through 1981.

A Fleer in the Ointment

In 1974, Fleer’s president Donald Peck approached the MLBPA seeking approval to market 5” x 7” satin patches to be sold for 25 cents each. The proposal appeared to exploit the product size loophole granted by Topps but appears to have been bit of clever subterfuge in hindsight suggested by Fleer’s paltry $25,000 guarantee on projected sales of $1 million. Moreover, Fleer was likely aware Topps and the MLBPA routinely discussed whether proposed licenses infringed upon Topps’ rights.

Topps took the bait and advised the MLBPA that Fleer’s proposal “was probably not worthwhile.” Without explicitly asking that the license be denied, Shorin warned that the large-format satin patches proposed by Fleer would sit on store shelves and likely depress the sales of Topps’ baseball cards, along with the players’ royalties. Not surprisingly, Topps declined its right to claim the license for the satin patch product.

Miller presented both Fleer’s proposal and Topps’ criticism to the players’ executive board for consideration. Fleer’s offer was rejected unanimously because of fears “Fleer’s product would remain unsold on store shelves, prompting store owners to cut back on orders of Topps’ baseball cards.” Additionally, the executive board was skeptical of Fleer’s sales projections and inadequate guarantee. Miller suggested several changes that might secure a license for the product, but Fleer declined. By April 1975, Fleer had dropped its 5” x 7” product proposal all together.

Peck met with Joel Shorin on April 17, 1975 and threatened to file a lawsuit unless Topps granted Fleer the rights to sell “stickers, stamps, and decals depicting active major league players.” Shorin refused, so Fleer approached the MLBPA about joining in a lawsuit against Topps. The MBLPA declined.

The Monopoly Defense, Part Deux

Even though it had apparently abandoned a desire to produce baseball cards of current players by selling off its contract portfolio to Topps in 1966, Fleer kept a toe in the water by selling team logo cloth stickers with its gum from 1967 through 1972. While Curt Flood’s antitrust case captured headlines throughout the early 1970s and pitchers Andy Messersmith and Dave McNally played out their 1975 seasons without contracts in an effort to gain free agent status, Fleer pursued an antitrust case of its own in July 1975, filing a federal lawsuit against Topps and the MLBPA alleging they were co-conspirators in an illegal restraint of trade under the Sherman Act.

1970 Topps Curt Flood (#360) – Flood never played for the Phillies but appears on this card, a perfect example of the “underbrim” shot favored by Topps’ photographers.

Donald Peck claimed that “Topps’ methods had made it impossible for a competitor to bid for rights to the players’ pictures, that the players had been deprived of a chance to maximize their income,” and “the gum and candy industries had been deprived of open competition.” In its complaint, Fleer alleged that it had attempted to obtain the rights needed to produce a set of current major league baseball 5” x 7” cloth stickers as recently as 1974 and was otherwise equipped to reenter the market, but for its lack of “suitable contracts with baseball players.” 

Now united, Topps and the MLBPA vowed to vigorously defend the case, which made antitrust accusations eerily similar to those Topps had successfully defended just a decade earlier in the FTC matter. Joel Shorin remained confident that Topps “had complied with all relevant laws.” Likewise, Marvin Miller was satisfied with the Topps’ arrangement and “would not like to see it disrupted.”   

In response, Topps filed a motion to dismiss asking the court to find that Fleer was a de facto party in the FTC matter, alleging “Fleer took such an active part in the FTC hearings, and its interests were so aligned with those of the FTC complaint counsel, that it had a “full and fair opportunity . . . to present its evidence and arguments on the claim.” Because the FTC matter had already been resolved in Topps’ favor, they felt it unfair to allow Fleer another bite at the apple.

It seems reasonable to infer that Fleer had no intention of ever issuing a set of 5” x 7” satin stickers, especially when they rebuffed Miller’s attempts to restructure the deal. Most likely, Fleer’s proposal was engineered to be rejected by the MLBPA, both by its puny guarantee and bold expectation Topps would exert its influence to sink the project. By perpetuating this bluff, however, Fleer could allege the requisite intention and capacity to reenter the baseball card market necessary to prove its antitrust case.

The court found that Fleer had undertaken substantial steps to compete in the marketing of current baseball player picture cards and had sufficiently pled that the alleged conspiracy between Topps and the MLBPA prevented them from entering the market. The defendants’ motion to dismiss the case was denied on May 28, 1976; Fleer survived round one.

The Pure Card Set

In late 1974, Topps was alerted that Mike Aronstein and Sports Stars Publishing Company (SSPC) was interested in issuing cards featuring current baseball players. Topps notified the MLBPA, who issued a cease-and-desist letter to Aronstein asserting Topps’ status as the “exclusive licensee for baseball cards sold alone or together with confectionary products” of the MLBPA. Up until Fleer’s request for a license to issue its 5”x7” cloth stickers, the MLBPA had refused but one license request—Aronstein’s—because the SSPC cards conflicted with Topps’ rights to sell cards alone.

1976 SSPC cards: George Brett (#167), Steve Stone (#302), Ron Cey, back (#75)

Undeterred by Topps’ monopoly and after success with Mets and Yankees team sets and a 24-card “puzzle back” set in 1975, SSPC set its sights high for 1976, with plans to issue a massive 630-card “Pure Card Set” inspired by Aronstein’s admiration of 1953 Bowman’s clean design. SSPC partner, Bill Hongach, (former Yankees’ batboy and Renata Galasso’s husband) helped obtain the photographs. A young Keith Olbermann wrote the card backs. The issuance of the Pure Card Set in 1976 (though copyrighted 1975), however, involved a fair bit of daring.

Two of Mike Aronstein’s other partners in SSPC were attorneys who opined the company could legally issue the cards because (1) the current players were public figures and (2) SSPC was simply disseminating editorial information about each player. They believed the SSPC format (despite its dimensions corresponding precisely to those of a Topps baseball card) was not substantively different than a photograph of a player accompanying a magazine article. Regardless, Aronstein said they “waited to be clobbered by Topps” once the set was advertised for sale.  

Distribution of the Pure Card Set—printed and ready to ship as of January 21—was stopped in its tracks when Aronstein received notice that Topps had been granted a temporary restraining order. Despite Topps’ later admission it had no issue with TCMA’s minor league and reprint sets (as long as they did not contain any cards of active MLB coaches of managers under contract with Topps), the order also halted distribution of all TCMA card sets and otherwise attempted to put Aronstein’s Collector’s Quarterly magazine out of business. The SSPC operation was small (i.e., no employees) and had gone $40,000 in debt to print the Pure Card Set.  Topps, on the other hand, tallied $8 million in revenue (approximately $40 million today) on sales of 250 million baseball cards produced in 1976. 

Photos courtesy Andrew Aronstein

Eventually, Aronstein was able to reach a deal that allowed SSPC to distribute the Pure Card Set to anyone who had ordered it on or before February 20, 1976. Aronstein was thrilled—SSPC had sold some three million cards (distributed as complete or team sets), which allowed them to cover the printing costs and claim a tidy profit. The deal also permitted SSPC to produce cards of current players in sizes other than the standard 2½” x 3½” size, which led to SSPC’s creation of fully sanctioned 27-card uncut sheets that the Phillies and Yankees included in their 1978 yearbooks.             

Closing out the 1970s

In 1976, Topps and Fleer began to lose market share with their flagship hard bubblegum products (“Bazooka” and “Dubble Bubble, respectively) due to the introduction of “Bubble Yum,” a soft bubblegum product. Despite its new competition, revenue remained healthy for Topps through 1978, with total sales about $67 million (roughly $290 million today), $9.2 million of which (approximately $40 million today) originated from the sales of baseball cards. With revenue of $15.2 million in 1978 (about $66 million today), Fleer surely salivated at the opportunity to issue baseball cards as a way to close its revenue gap.

In 1978, royalty income for the MLBPA approached $1.1 million (approximately $4.7 million today). Topps’ royalty payments accounted for about $847,000 (approximately $3.65 million today) of that total. That Topps payment comprised more than 75 percent of the MLBPA’s total licensing revenue neatly explains why the MLBPA was reluctant to cross Topps.

The Bubble Bursts

Fleer’s antitrust case against Topps and the MLBPA rolled on for the better part of four years in Pennsylvania without much publicity until the defendants were dealt a massive blow on June 30, 1980. After trial on the matter, the district court issued its decision finding that Topps and the MLBPA had acted in concert to exclude Topps’ competitors and were in violation of the Sherman Antitrust Act by having restrained trade in the baseball card market. Damning to be sure.

In order to arrive at its decision that Topps and the MLBPA conspired to monopolize, the court had to find a “specific subjective intent to gain an illegal degree of market control.” As a result, Fleer was entitled to monetary damages and the court was empowered to grant equitable (non-monetary) relief that could levy restrictions on Topps and the MLBPA and/or impose mandatory injunctions that would require defendants to perform specific actions. The equitable relief granted by Judge Clarence Newcomer would change the baseball card landscape forever. 

In order to calculate any monetary damages owed to Fleer, the court assumed that, absent the conspiracy to monopolize, “the MLBPA would have granted Fleer a non-confectionary license for some product” at the market price. The court, however, considered the realities of Fleer’s chances for success in the market, “Fleer has never had a great deal of success marketing trading cards of any type (Topps and Donruss are the leaders in the field), and had it obtained an expensive license, its expertise would have been greatly tested. Fleer’s distribution system is not as effective as that of Topps (Topps uses its own sales force; Fleer works through brokers and wholesalers), and Topps could have been expected to have beaten Fleer to the shelves in the spring. Finally, Topps’ product has a great deal of market acceptance among retailers and consumers.” The court admittedly could not find that “Fleer would have been the company to succeed at the endeavor,” but it at least should have had the opportunity to try.

Damage, Inc.

Generally, monetary damages must be provable in order to be recovered. Unfortunately for Fleer, the court found that trying to quantify Fleer’s losses depended on “an unacceptable amount of speculation,” especially because Fleer was “not a particularly robust company at the moment.” Its sales were roughly a fifth of those of Topps and both companies were suffering loss of market share at the hands of soft bubble gum products sold by larger competitors. Moreover, Fleer had never sold a trading card item that achieved $750,000 in sales.

Even without any conspiracy between Topps and the MLBPA, “Fleer would have faced two obstacles between it and its first dollar of profit. First, it would have had to obtain a license from the MLBPA to market a set of cards. Second, it faced the significant market power of a firmly entrenched competitor.” Because of this uncertainty, the court awarded Fleer symbolic damages of $1 (which was trebled to $3 pursuant to statute). The defendants were also ordered to reimburse Fleer its attorneys’ fees—likely hundreds of thousands of dollars incurred to pursue the protracted litigation.

More importantly, the court permanently enjoined Topps from enforcing the exclusivity clause in its player contracts and prohibited Topps from entering into any player contract that gave Topps the exclusive right to sell that player’s photograph. Wow.

The MLBPA was ordered to carefully consider any applications it received for licenses to market baseball cards and was explicitly required to enter into at least one such licensing agreement before January 1, 1981 “to market a pocket-size baseball card product, to be sold alone or in combination with a low-cost premium, in packages priced at 15 to 50 cents.” Fleer was granted right of first refusal as to any such license. The MLBPA was also cleared to grant as many similar baseball card licenses as it chose to.

Fleer and Donruss Enter the Fray

1981 Topps Bill Buckner (#625), 1981 Fleer Mark Fidrych (#462), 1981 Donruss Pete Rose (#131)

Following the court’s decision in June 1980, Fleer scrambled to assemble its 1981 set. At 660 cards, it was by far the largest set the company had ever produced. President Donald Peck was downright giddy, “I don’t know why we succeeded this time. I guess our case was just presented better. . .We’re just having a lot of fun competing in this area.” He predicted Fleer would sell less than Topps, but “more than Topps thinks.”

In 1980 the standard Topps wax pack contained 15 cards and a stick of gum for 25 cents. Topps included 15 cards and a stick of gum for its 1981 set but increased the price to 30 cents per pack. It also added “The Real One” tagline to its boxes and wrappers for the first time.

1981 Topps Wax Box

Fleer tried to outdo Topps by inserting 17 cards and a stick of gum in its 1981 wax packs, sold for 30 cents. It also included two extra packs in each wax box, promising retailers “60 cents extra profit”! Fleer’s 1981 issue was the first to market.

Donruss was an experienced player in (mostly non-sport) trading cards but had to scramble to produce a set once it was granted a license by the MLBPA in September 1980 (reaping the rewards without having to engage in expensive litigation. Although not a party, Donruss personnel was involved in the Fleer case only as witnesses).

Donruss’ president Stewart Lyman reached out to New York sportswriter Bill Madden, who was hired to write the backs for the 1981 set. Mike Aronstein was granted the exclusive right to sell complete hobby sets that year. Donruss sold its wax packs, 18 cards and a stick of gum, through its established distribution channels.

Unfortunately, the 1981 Fleer and Donruss issues were plagued by errors as they rushed to produce their sets, prompting collectors to question whether the errors were included intentionally to stimulate publicity. Fleer corrected some of its errors in its second printing, some more in its third. By June 7, Donruss was in its third printing and had made corrections to most of the errors that dogged its hastily assembled set. Lyman denied Donruss had intentionally included the error cards as a way to increase sales, “I’m embarrassed we made any errors, but I’m proud so few were made considering the timetable we had to put out the set.”

Can you spot the errors?
1981 Fleer Fernando Valenzuela (#140) and Graig Nettles (#87), 1981 Donruss Bobby Bonds (#71)

Interestingly, the district court observed that as of 1980, “no baseball cards are marketed which include statistics on stolen bases or fielding percentage, game winning hits, successful sacrifice attempts, or any number of other statistics which a competitor might choose to offer to attract baseball card purchasers.” Perhaps it is not a coincidence that Topps and Fleer both included stolen bases on their card backs in 1981.    

The Appeal

Despite having prevailed, Fleer was not fully satisfied and appealed the district court’s decision. Fleer wanted the court to bar Topps from the baseball card market for at least one season and to require Topps to deal only with the MLBPA rather than through its exclusive individual player agreements. In addition, Fleer sought reconsideration of the award of nominal damages ($3). Topps appealed as well, seeking a reversal of the court’s findings of liability, damages, and injunctive relief.

In a bit of déjà vu, the Third District Appellate Court found that the agreements in place between Topps and the MLBPA “were neither unreasonable restraints of trade. . .nor monopolization of the relevant market.” Topps had won the appeal (again). The court held that just because Topps had managed to obtain licensing agreements with the overwhelming majority of major league players “did not make the aggregation of these contracts an unlawful combination in restraint of trade.” They noted further that Fleer chose to leave the trading card market in 1966 and sold all its existing licensing agreements to Topps.

In addition, Fleer had admitted it could compete against Topps for license agreements in the minor leagues, but it would take several years before it could produce a marketable product. The court found that this argument simply “identified a characteristic of Major League Baseball, rather than an illegal restraint of trade” or “an indictment of Topps’ licensing agreements.” While a Fleer may not have been able to sign major league players already under contract to Topps, it could still compete for player licenses at the minor league level. That this might take six or seven years to bear fruit did not make Topps’ agreements anticompetitive.

An examination of licenses granted by the MLBPA for the sale of trading cards with non-confectionary goods demonstrated that the fear of decreased royalty payments did not stop the MLBPA from licensing products competitive with Topps. As a licensor, “the MLBPA is free to grant licenses to any competitor, or none at all.” Ultimately, appellate court held that Fleer had not proven any intent on the part of Topps and the MLBPA to monopolize the trading card market.

In 1982, the U.S. Supreme Court declined to hear Fleer’s appeal, which made final the Third District’s decision.

Restitution in Delaware

No longer free to market their cards with gum, Fleer and Donruss set about to distribute their cards in 1982 with a non-confectionary premium to exploit the loophole in Topps’ exclusive rights to market cards alone or with gum, candy, or confectionaries. (Fleer did not resurrect the cookie packed with cards in 1963.) Though Topps presumably protested to the MLBPA that Fleer’s team logo stickers and Donruss’s Babe Ruth puzzle pieces were simply “sham” products tantamount to selling cards alone, the MLBPA continued to officially sanction Fleer and Donruss, presumably content with the fruits of the royalty arrangements with each.  

In May 1982, shortly after Fleer’s appellate recourse was exhausted, Topps filed a lawsuit in Delaware’s chancery court alleging Fleer was unjustly enriched by “sales of products to which Topps had the exclusive rights to manufacture and sell.” Topps sought to recover the profits Fleer realized on its $4 million in sales (approximately $12.4 million today) of 1981 cards. Fleer president Donald Peck dismissed the charges as meritless and assured that Fleer had no intentions of pulling its 1982 cards from the market. Regardless, in the course of the lawsuit Fleer acknowledged that did owe some amount of restitution but urged that disgorgement of its profits was unreasonable.   

While the Delaware case was pending, Topps filed a separate lawsuit against Fleer in the Southern District of New York on March 29, 1983 seeking to recover all of Fleer’s profits for 1982 and 1983—along with $3 million in punitive damages—claiming that Fleer’s team logo sticker was a “sham product.” This lawsuit was settled confidentially in 1985, with Fleer given consent to “continue with the baseball cards and team logo stickers, as before.”

Back in Delaware, Fleer filed a motion asking the chancery court to declare that Topps was not entitled to recover Fleer’s profits “because those profits were earned under the protection of a court order and not as the result of any illegal infringement of Topps’ exclusive contract or licensing rights.” The court denied Fleer’s motion, finding that even though Fleer had legally marketed its 1981 cards in accordance with the Pennsylvania district court’s order—once the decree was reversed by the appellate court, it was as though Fleer had infringed on Topps’ exclusive rights all along.

In 1988, the Delaware Supreme Court affirmed the lower court’s ruling that Fleer had issued cards in 1981 under a wrongfully issued injunction and were responsible to reimburse Topps damages equal to the “net profits received by Fleer arising out of Fleer’s use of Topps’ previously exclusive license agreements.” The matter was returned to the lower court for an accounting. It is unclear how the chancery case ultimately resolved, but it seems likely that the parties reached confidential settlement. (No newspaper articles reporting on the resolution of the case have been located and no information is available remotely from the court.)

1988 Topps Jose Cruz (#278), 1988 Fleer Edgar Martinez (#378), 1988 Gregg Jefferies (#657), 1988 Sportflics Wade Boggs (#50), 1988 Score Bo Jackson (#180)

Otherwise, the MLBPA began preparing in 1988 for a potential work stoppage in 1990 when the collective bargaining agreement with MLB expired. At the time, baseball card royalties paid into the MLBPA garnered each player roughly $18,000 per year in additional income (approximately $43,000 today). The MLBPA used those royalty payments (only $5000 of the $18,000 total was distributed to the players) to fund a war chest, which proved a savvy move when the owners implemented a 32-day lockout that delayed the start of the 1990 season.

Also in 1988, newcomer Score joined Topps, Fleer, Donruss, and Sportflics (who began producing sets in 1986) as a major set manufacturer. Deep in the throes of the junk wax era, Dr. James Beckett expected some five billion cards would be manufactured in 1988. Predictably, more industry players would mean more fighting.

To be continued…

Sources/Notes:

Websites

www.baseball-reference.com

www.retrosheet.com[JS27] [JR28] 

www.tcdb.com

www.mlbplayers.com

Cases

  • In re Topps Chewing Gum, Inc. 67 F.T.C. 744 (1965).
  • Flood v. Kuhn, 407 U.S. 258 (1972). In January 1970, Curt Flood filed a lawsuit in the Southern District of New York against the Commissioner of Baseball (Bowie Kuhn), the presidents of the two major leagues (Joe Cronin and Chub Feeney), and the 24 major league clubs after he refused an October 1969 trade from the St. Louis Cardinals to the Philadelphia Phillies. Flood’s complaint alleged violations of federal antitrust laws, civil rights statutes, and the imposition of a form of peonage and involuntary servitude contrary to the Thirteenth Amendment, which had abolished slavery. Flood refused to report to the Phillies in 1970, despite a $100,000 salary offer, and sat out for the season. He appeared in 13 games for the Washington Senators in 1971 but left the club, and organized baseball, for good on April 27 unsatisfied with his performance. On June 19, 1972, the United States Supreme Court issued its opinion in the Flood v. Kuhn matter, holding that, in accordance with Federal Base Ball (1922), the business of baseball—including the reserve clause—was exempt from antitrust laws. No other business (i.e., vaudeville, professional boxing, National Football League) that had sought antitrust exemption in reliance on Federal Baseball had been successful. Accordingly, MLB had (has) the only legally sanctioned monopoly in the United States. Despite candidly admitting that “professional baseball is a business and it is engaged in interstate commerce,” a majority of the Supreme Court ruled against Flood, imploring any change to the law be had “by legislation and not by court decision.” 
  • Fleer Corp. v. Topps Chewing Gum, Inc., 415 F.Supp. 176 (E.D. Pa. 1976).  With regard to the FTC matter, “Fleer’s representatives were star witnesses and, in proportion, carried the burden of making the record in this proceeding. They were in constant attendance throughout the hearing. . . In retrospect, much of the struggle for contracts with ballplayers seems to be Fleer’s private struggle with Topps . . .The Hearing Examiner is, however, of the opinion that the delegation of the Commission’s ‘adjudicative fact-finding functions’ does not embrace a policy question going to the public interest.”
  • Fleer Corp. v. Topps Chewing Gum, Inc., 501 F.Supp. 485 (E.D. Pa. 1980). The only trading card product ever to outsell baseball cards was Wacky Packages in 1973-74. The court noted that the slab of gum weighed “4.30 grams” in 1978. Fleer had a net operating loss in 1978 and its net income (loss) was as follows: 1977—$346,621; 1976—$502,257; 1975—$720,274; 1974—($309,261); 1973—$382,354; 1972—$268,926; 1971—$148,494; 1970—($200,016). Roughly two thirds of baseball cards purchased are purchased by “heavy” buyers (i.e., those who purchase more than 200 cards per year.)  
  • Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139 (3rd Cir. 1981). The number of players included in each licensing agreement varied. Some contracts, like those with Coca-Cola and Kellogg’s covered all the players, while others included “not less than 72, and not more than 300.”
  • Fleer Corp. v. Topps Chewing Gum, Inc., cert. denied, 455 U.S. 1019 (1982).
  • Topps Chewing Gum, Inc. v. Fleer Corp., 547 F.Supp. 102 (D. Del. 1982).
  • Topps Chewing Gum, Inc. v. Fleer Corp., 799 F.2d 851 (2nd Cir. 1986). Fleer’s contract with the MLBPA required that the production cost of the logo sticker had to be “not less than 15 percent of the production cost of the baseball cards in a package.” No evidence was presented to show the production costs for the team logo stickers.
  • Fleer Corp. v. Topps Chewing Gum, Inc. 539 A.2d 1060 (Del., 1988). “Restitution serves to ‘deprive the defendant of benefits that in equity and good conscience he ought not to keep, even though he may have received those benefits honestly in the first instance, and even though the plaintiff may have suffered no demonstrable losses.’”

Articles

  • “Mickey’s Bubbles Busted by Ol’ Case,” The Sporting News, September 23, 1953: 17. Mantle was redressed by Yankees manager Casey Stengel for having the audacity to blow a bubble while playing in the outfield.
  • Dick Young, “Young Ideas,” (New York) Daily News, December 2, 1967: C26.
  • Richard Wright, “Off-Season Paydirt for Pro Stars,” Detroit Free Press (Detroit, Michigan), December 8, 1968: 59.
  • “Lawyer Probed on Ballplayers’ Complaints,” Detroit Free Press, November 2, 1970: 30.
  • Don Lenhausen, “Lawyer Linked to Tigers Is Accused of Misconduct,” Detroit Free Press, December 17, 1970: 16.
  • “Bad Check Charge Lawyer Sentenced,” Detroit Free Press, July 28, 1971: 17.
  • “Competitor Sues Topps Over Players’ Pictures,” Wilkes-Barre (Pennsylvania) Times Leader, July 10, 1975: 4.
  • “Gum Firm to Pop Rival’s Bubble,” Detroit Free Press, July 10, 1975: 25.
  • “The battle of the baseball cards,” The Record (Hackensack, New Jersey), March 10, 1976: 62.
  • Mike Aronstein, “The Great Card War,” Collectors Quarterly, Summer 1976.
  • “The Topps-sponsored Bubble Gum Blowing Championships of 1975,” The Tampa Tribune, September 5, 1976: 118. In 1976, Topps issued a card honoring Milwaukee Brewers infielder Kurt Bevacqua as the “Joe Garagiola/Bazooka Bubble Gum Blowing Champ.” The win netted Bevacqua a first prize of $1000 ($5200 today) for his 18¼” bubble. Phillies catcher Johnny Oates was second with a 14½” bubble that won him $500. 
  • Andy Lindstrom, “Kids still trade their baseball heroes,” News-Pilot (San Pedro, California), September 10, 1976: 11.
  • Michelle Mitkowski, “Baseball Card Collectors Have Field Day at Show,” Daily Record (Morristown, New Jersey), January 12, 1981: 19.
  • Paul Marose, “Just like runs and cards, errors part of the game,” The Dispatch (Moline, Illinois), June 7, 1981: 13-14.
  • “Bubble gum game goes into extra innings,” Baltimore Sun, June 1982: 38.”
  • “No Hits, Runs, Errors Yet in Chewing Gum Lawsuit,” Scranton Times-Tribune, March 30, 1983: 11.
  • “Topps gum firm agrees to buy-out,” Philadelphia Inquirer, November 17, 1983: 121.
  • “Gumming up the works,” Santa Fe New Mexican, April 8, 1985: 11.
  • “Investment in Baseball Cards is Topps,” Record-Journal (Meriden, Connecticut), April 18, 1988: 14.
  • Claire Smith, “Players saving for strike in ’90,” Hartford Courant, June 18, 1988: 191, 194.
  • Frank Litsky, “Frank Scott, 80, Baseball’s First Player Agent,” New York Times, June 30, 1998: Section B, Page 9.
  • Mark Armour, “The 1967-68 Player Boycott of Topps,” SABR Baseball Cards Committee Blog,  https://sabrbaseballcards.blog/2017/01/03/the-1967-68-player-boycott-of-topps/, January 3, 2017.
  • Michael Haupert, “Marvin Miller and the Birth of the MLBPA,” Baseball Research Journal, Spring 2017.

Interview

Mike Aronstein, telephone interview with author, March 10, 2022.

Miscellaneous Notes

  • The players’ first choice for Executive Director was Milwaukee County Judge Robert Cannon, who turned down the offer because his request to place the MLBPA office in Milwaukee or Chicago was refused and the association would not guarantee him a pension equal to what he would have received as a county judge.  Cannon was later instrumental in moving the Seattle Pilots franchise to Milwaukee. The licensing deal with Coca-Cola was $60,000 per year for two years and was instrumental in securing funding needed to keep the MLBPA solvent until dues were first collected in May 1967. Topps agreed to pay an 8% royalty on the first $4 million in sales and 10% thereafter.
  • The MLBPA group licensing program applies to any company seeking to use the names or likenesses of more than two Major League Baseball players in connection with a commercial product, product line or promotion must sign a licensing agreement with the MLBPA. The license grants the use of the players’ names and/or likenesses only and not the use of any MLB team logos or marks.
  • Presumably a deal was reached between Topps and Major League Properties considering team logos appear in every set of the 1960s, but the terms of this deal have eluded the author.
  • The author has been unable to identify any products marketed under the name “Sports Promotions, Inc.” although this appears to be a company linked to Livonia, Michigan attorney Edward P. May, who along with Tigers pitcher Joe Sparma sold Tiger player caricatures in 1968 and had attempted to “merchandise bubblegum cards on a nationwide basis.”   May had represented Al Kaline, who complained to the Wayne County prosecutor’s office that May had defrauded him out of $14,000 tied to a health club named for the slugger.  Denny McLain complained he lost $100,000 on an ill-fated paint company venture May arranged. The MLBPA complained May had not paid royalties on baseball cards sold and accused him of forging the signature of a printing company executive on a document that guaranteed those royalties. In 1971, May was placed on three years’ probation for writing bad checks and suspended indefinitely from practicing law in Michigan.
  • Before 1981, Topps had only included stolen base statistics on the backs of its 1971 cards.

Special Thanks

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

Death and Taxes and Baseball Card Litigation [Part I]

A Very Brief History of the Right of Privacy

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

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

Franklin Mills advertisement featuring photograph of Abigail Roberson

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

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

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

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

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

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

Hanna promotional material

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

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

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

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

The Big Cat Takes a Swipe

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

Double Play cards featuring Johnny Mize

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

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

Leaf: Blown Away

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

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

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

Bowman v. Topps: Birth of the Right of Privacy

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

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

1951 Topps box and cards

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

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

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

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

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

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

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

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

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

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

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

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

Bowman v. Topps: The Aftermath

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

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

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

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

Fleer Stirs the Pot

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

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

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

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

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

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

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

Page 1 of the 98-page FTC decision

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

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

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

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

The Topps “Monopoly”

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

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

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

The FTC Appeal

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

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

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

Fleer in the late 1960s

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

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

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

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

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

To be continued…

SOURCES/NOTES:

Websites

www.baseball-reference.com

www.retrosheet.org

www.tcdb.com

Cases

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

Articles

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

Special Thanks

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


Creating the set: 2018-19 Baseball Treasure

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 with Baseball Treasure coins

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?

Rick Canale: 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!

Out of the Shadows:  Revealing an Overlooked “Black Gold” Card

One of the most collectible genres of baseball card has been what Beckett Vintage magazine termed in the November 2002 issue as “Black Gold,” collecting cards of players involved in the 1919 Black Sox scandal.

The most collected are the obvious “eight men out.”  However, in this collector’s opinion the most captivating card within this genre belongs to former player, turned gambler, turned state’s star witness against the eventual eight men out, “Sleepy” Bill Burns

Burns was a former major league pitcher whose major league career spanned 1908-1912, played for five teams, and finished with a bland 30-52 record.  As a pitcher outside of the major leagues, mostly in the Pacific Coast League, Burns was only slightly better with only one real flash of potential early in his career.  As a pitcher for the 1907 PCL champion Los Angeles Angels, Burns turned in his best professional season going 24-17.  He ended his professional career at the age of 37 in 1917 pitching for the Oakland Oaks in the PCL collecting a 4-5 record with a 6.22 ERA in 19 appearances. 

Burns however gained eternal infamy after his career by being one of the key figures behind the scenes of baseball’s darkest moment, the fixing of the 1919 World Series.  Burns, who was a former teammate of some of the White Sox acted as a gambler and go-between for the players and other gamblers paying off the players involved.  Later in 1921 he was the state’s star witness against the players in the trial that ended in their acquittal.

Bill Burns does not have a large checklist of baseball cards.  He did make it into the famous T206 set, with a glove on the wrong hand, which is probably his most famous baseball card.  He is also in the 1910-11 Turkey Red T3 and 1911 Pinkerton T5 sets.  Often overlooked is the fact that Burns has two cards in the Zee-Nut catalog appearing in the 1915 and 1917 sets. 

Zee-Nut baseball cards were a product of the Collins-McCarthy Candy Company based in San Francisco that featured PCL players and was the longest running baseball card company prior to Topps, producing cards from 1911-1938.  There are Zee-Nut cards of four of the eight men out (Weaver, Risberg, Williams, McMullin) as well as Joe Gedeon the “ninth man out” who was also banned for knowing about the 1919 World Series fix from his friend Swede Risberg.  All are amazing cards and will command a premium price when they come to market, especially Fred McMullin’s 1915 card which sells between $5,000-$10,000 as his only mass produced baseball card.  However, Bill Burns’ two Zee-Nut cards are often overlooked by “black gold” collectors.

Of Bill Burn’s five baseball cards the one I think deserves a place at the table in the discussion of best “black gold” cards is his 1917 Zee-Nut card.

Looking at the card I have to imagine that the candy company photographer tasked with capturing the images of the Oakland Oaks players back in 1917 had to be disappointed with his picture of pitcher Bill Burns once it was developed.  By some mistake through the combination of placement and position of the pitcher, posed at the peak of his windup, the positioning of the sun in the sky, and the set up of photographer and camera, the identity of the subject was rendered impossible to discern as the pitcher’s face was completely obscured in a dark shadow.  If a photographer made such a mistake today the picture would be discarded instantly, another photo taken and ultimately used.

Nonetheless, the image of Bill Burns with his face hidden in a shadow was used, and the photographer, we can imagine, was probably disappointed in his careless error once the 1917 set of Zee-Nut cards was printed.  He had no way of knowing just how much that image of a failed, washed up, former major league pitcher in 1917 would turn out to be a poetic depiction of one of the most shadowy figures in Baseball’s darkest hour just two years later.

It is this very reason why I consider it my favorite card within the realm of the Black Sox scandal.  A photographer’s mistake that cast a shadow on the face of a man who would himself help cast a shadow on the national pastime.

Covering the Bases: 1989 Topps #156 Dave Gallagher

In this edition of “Covering the Bases”  we are discussing the 1989 Topps All-Star Rookie cup card dedicated to outfielder Dave Gallagher.

The chief reason I chose to cover Gallagher here is that he recently discussed his Topps All-Star Rookie Cup on Twitter – spoiler alert, I was a little bummed with his feedback.

1989 Topps #156

Lets open by discussing the card which is Gallagher’s Topps debut.  A couple of observations:

1) This appears to be a Spring Training shot – note the chain link fence and treeline beyond Gallagher’s left shoulder.

2) In 1988 Chicago sported their uniform numbers on the front of the left pant leg, It is mostly obscured by the “White Sox” script on the card but you can still make out what is the top of Gallagher’s #17 here.

3) Gallagher is apparently holding some sort of BP bat. At first I thought Gallagher was using a bat sleeve – but 1988 seems sort of early historically. Looking closer I think what we are dealing with here is Bat Tape. I am guessing that the idea is to extend the life of a BP bat, perhaps the tape also acts as a visual cue to help a batter to target the sweet spot.

1988 Topps All-Star Rookie Cup

Of course the reason team Phungo took an interest in this card is that it falls under the umbrella of our obsession with Topps All-Star Rookie Cards. This past September SABR Member Brian Frank had posted via twitter a snapshot of the card on Gallagher’s 59th birthday. Gallagher acknowledged the posting noting the day is also his Wedding Anniversary.  I later jumped on the thread posing the following question:

I wanted to hear that Dave Gallagher was a big fan of baseball cards, has a collection that he considers very special and that getting a Trophy from Topps Chewing Gum Co was the highlight of his playing career.

Well, that wasn’t the answer I received. Gallagher’s reply was sobering and quite prudent.

THROWN OUT!

As a Topps All-Star Rookie Cup obsessive I was momentarily crushed. But it makes sense, I am sure there have been several dozen trophies that a player like Dave Gallagher has accumulated in a 20 year professional career. Keeping them all likely borders on hoarding. And his point of maintaining a separation of career and home also seems wise.

More Gallagher Cards

While researching Dave Gallagher cards I came across his 1989 Topps Big card

1989 Topps Big #310 Dave Gallagher

Which is a fine card but what really interested me was something on the back

1989 Topps Big #310 Dave Gallagher (b-side)

Check out the middle panel on the cartoon. It is not a Baseball Card Patent but Dave Gallagher does have a Baseball related Patent. His invention is known as the “Stride Tutor” or according to the Patent Office “Apparatus for improving the hitting technique of baseball players.” It is essentially a set of foot cuffs (with a longer plastic chain) that are designed to train a batter to make a consistent stride in their swing. The device was written up in a 1989 Sports Illustrated article.

Gallagher’s patent application is pretty interesting citing SIX Hall of Famers: Johnny Bench, Mel Ott, Joe DiMaggio, Reggie Jackson, Nolan Ryan, and Joe Torre plus Pete Rose and Hitting Guru Charlie Lau.

There you have it, Covering all the Bases on a single (well two) Topps card leads you to the US Patent Office and Joe DiMaggio.

Sources and Links

Trading Card DB

baseball-ref

Twitter @DaveGallagher22

HERD Chronicles (SABR Brian Frank)

Phungo 1989 Topps All-Star Rookie Cup index

Google Patents

COMC Check Out My Cards

Sports Illustrated (1989 May 22 pg 81)

High Heat Stats

Chrome, Finest, Reversed Printing, and Opaque Whites

Last December fellow print geek @robbyt86 tweeted an astute observation about someone else’s printing plate rainbow when he noticed that the rainbow consisted of both regular and Chrome cards and that the Chrome cards were printed in reverse. The top two printing plate cards in the image are regular paper printed right-reading (as can be seen in the jersey logo and number). The bottom two are Chrome printed wrong-reading.

This got me thinking and I hypothesized that Chrome was printed in reverse on clear plastic and then fused to the foilboard. This would explain the difference in the printing plates as well as the mix of foil and non-foil finishes. Opaque white ink isn’t usually the best thing to print on top of but this technique would lay it down last, on top of the other inks, which is a perfect use for it.

The more I thought about this the more I realized that this was also probably how Finest was made in the mid-1990s* and that I wanted to do some digging to confirm whether or not this was indeed the case.

*and that there was a decent chance that the protective coating on Finest is still on the clear layer of these Chrome/Finest cards today only it’s getting peeled off after printing but before packing.

So I decided to soak one of my excess Chrome cards to see what I could find out. I selected a 2015 Topps Chrome Hunter Strickland for this since I had gotten tired of him after the 2018 broken hand debacle. 2015 is a good design for this since the colored border meant there was, presumably, some opaque white right there on the edge.

Soaking went well. Card came apart as expected except for the surprise Tide Pod marks inside the card stock. After cleaning everything up I was left with just the front of the card and a literal foil backing.

The next step for me was to start sanding each side to confirm what side the ink was on and see if I could find a way to remove just the foil. This didn’t work super well but I did confirm that the ink is indeed printed on the inside layer of the plastic. You can make out the scuff marks on Strickland’s face and how they stay on the surface of the card rather than removing any ink. Compare this to where I sanded on the back by the Giants logo. The foil and image both start to disappear—especially along the edge.

So I was stuck both because Chrome is impossible to scan and because I hadn’t really produced anything interesting. And then Artiezillante commented on my previous post where I dove into the patent archive. I’ll just reproduce it in full here as well.

So in addition to cards I have a fairly extensive collection of wrappers from the 1980s-today because you never know when you’re going to need to go to the wrapper to answer a question. On the 1997 Finest Series 1 and 2 wrappers they have the following language:

Topps Finest is a registered trademark of The Topps Company, Inc.
SGW US Patent #4933218, #5082703, #5106126, Chromium (R), Holochrome (R), #5223357, Skin Protector TM, ClearChrome (R), Pat. Pending

I don’t have a 1996 Finest wrapper, but I do have one from 1995 and none of that language is there. The 1998 Finest wrapper is nearly impossible to read (the wrapper is clear so the print on the back gets jumbled with the design on the front) but it also mentions US & Foreign patents for Chromium, Holochrome, Skin Protector, and ClearChrome, though there are no patent numbers. The earliest Topps Chrome wrapper I have is from 2002 and it has the same language as the 1998 Finest wrapper.

This was fantastic and turned out to be exactly what I was looking for. Patents 5082703, 5106126, and 5223357 in particular describe exactly what’s going on with Finest and Chrome.

Patent 5082703 describes the clear layer,* how it’s printed on the back side, and how the thickness of the ink printed can be changed so as to create textural effects. The pictures in the patent show a generic image in Figure 1 with Figures 2, 3, 4, and 7 representing different cross sections with the clear layer always being labelled 12 and the different ink layers on the back being shown in profile.

*Patent 4933218 that Topps also mentions is an earlier version of 5082703.

Patent 5106126 meanwhile covers the opaque masking of portions of the printed image so that multiple finishes are available after a metallic layer is added to the piece. More specifically it builds on printing on a clear substrate (what the previous patent covers) by depositing an opaque layer behind select portions of the image before layering reflective/metallic material on the back of the entire piece. This results in some portions of the printed piece having a metallic sheen and other pieces being dull and paper-like.

One key point here is that metallic layer is laminated or sprayed on to the substrate. This is not how cards are produced so the key takeaway here is the custom opaque ink sections.*

*Compare this to the custom foil stamping detailed in Upper Deck’s hologram card patent I mention in my previous post

The last patent, number 5223357, covers the assembly of the cards. The patent specifies holographic film but the key takeaway for me is that it discusses adhering together two distinct sheets—the clear layer (labelled 12) and the metallic/holographic layer (labelled 14)—rather than the single sheet that the other two patents discuss.

The cross-sectional drawings in this patent also distinctly show how the ink is located between the two layers and confirms that my hypothesis about how these cards are assembled is correct.

It also explains why the Chrome printing plates are wrong-reading since, once they’re printed on the the clear substrate, they become right-reading when viewed through the plastic.

When you look at a Chrome card you’re looking at the back of the printing through the clear plastic sheet that it’s been printed on. The non-shiny sections have opaque white ink printed on top of the colored inks (remember you’re looking at the back of the printing). The shiny sections are from a foil sheet that has been glued to the plastic sheet. The rest of the card is regular paper card stock* on which the card backs are printed just like traditional paper cards.

*The plastic/paper dual composition is why Chrome cards tend to curl so much. Paper responds to humidity much more than plastic and so depending on conditions in the Topps plant vs conditions in your home it will expand or contract a little and result in curling.

Patent dive

When I wrote my post about Collect A Books, I stuck my nose into Google Patents because it was the easiest way for me to produce a citation for Bouton actually being the inventor. Once inside though I couldn’t help myself and started looking around at other patents related to baseball cards.

I should’ve realized the danger here. As someone with a mechanical engineering background, patents and patent drawings are always something I enjoy looking through. So without further ado, a handful of patents which correspond to cards that we’re somewhat familiar with. Since this blog doesn’t keep a patent attorney on retainer I’m merely going to note the patents and what cards the correspond to.

US Patent 5517336 is held by Upper Deck and involves mixing printing with holograms. While the patent is dated 1995, that the initial filings date to 1993 feels about right to me. 1993 is when the Denny’s Holograms switched from being all-hologram to a combination of hologram and print. It’s also when Upper Deck released the Then and Now insert set which did the exact same thing.

Patent number 5328207 dates to 1991 and describes sticker autographs. I don’t remember these existing at all in the early 1990s so it’s interesting for me to see this showing up so long ago. I do like that the patent application is clearly a baseball player rather being a more-generic person.

Patent number 7413128B2 is another one owned by Upper Deck and concerns relic cards. There are a bunch of relic card patents out there, each with different methods of enclosing the pieces. I like this one since it’s held by Upper Deck and because it’s got the best images about how the relic cards are assembled and how they can accommodate different kinds of enclosures.

That this patent dates to 2004—a decade after relics had been out in the wild—shows how companies have been trying to improve and update the relic card to be more than just a small swatch of material. This patent isn’t just relics, it’s any insert from cut autographs to manufactured non-card materials and it doesn’t even have to be flat.

The last patent from this dive is number 20080202947, held by Topps. Yup, this is the Allen and Ginter Rip Card patent. The patent text references prior art from Pinnacle but there doesn’t appear to be a patent for that in the citations.

It’s interesting to me how so much of the patent application concerns the gambling aspect of the rip card and emphasizes how the outer card is intended to be destroyed.

I plan to continue digging through the archive and seeing what else I find. I’ve found some cool-looking stuff that doesn’t look like it was ever turned into a product. There are also a few products which I’d love to find patents for (Topps Chrome I’m looking for you) since I’ve been reverse engineering their production for a while as part of future posts. And if anyone else wants to start digging (even just starting with the related patents in the citations here), the more the merrier.

Ten quirks of the 1934-36 Diamond Stars set

The 1934-36 Diamond Stars set from National Chicle is a personal favorite thanks to its bright colors, its creative backgrounds, and the overall personality of its artwork. It’s also a set that makes for interesting study due to a variety of quirks and even a possible mystery.

10. NO Ruth or Gehrig

Though the Diamond Stars checklist is stacked with Hall of Fame talent, the set does not include the era’s two biggest stars, Babe Ruth and Lou Gehrig. Other notable absences include Dizzy Dean and Chuck Klein. While the omissions detract from the set in the eyes of many collectors, they may prove a blessing in disguise to set collectors on more modest budgets.

The standard theory, which I subscribe to, on why these players are missing is that they were locked into contracts with Goudey and/or mega-agent Christy Walsh. However, Ron Rembert offers an alternate explanation in his article, “Idols and the 1934-36 Diamond Stars Set.”

9. AUSTEN LAKE BIOS

The back of each Diamond Stars card features a novel biographical format that doubles as a baseball instruction manual and scouting report tailored to the featured player. The byline on this content is Austen Lake of the Boston American.

1934-36 Diamond Stars Lefty Grove with Austen Lake bio

Lake himself has an interesting bio, having at one time tried out as a catcher with the Yankees, played football professionally, and rose to prominence as a war correspondent during World War II. Of course, some vintage collectors might know the name (and even most of the bio!) from another set of 1930s trading cards.

1933 DeLong Lefty Grove with Austen Lake bio

8. what year are the cards?

As the name suggests, the 1934-36 Diamond Stars were indeed released over a three year period. However, that is not to say that each of the cards was available all three years. More detail is provided in an excellent article Kevin Glew wrote for PSA, but a basic summary of the 108-card release is as follows.

  • 1934: Cards 1-24
  • 1935: Cards 1-84
  • 1936: Cards 2, 4, 5, 8, 9, 10, 12, 16, 22, 26, 30, 31, and 73-108

For example, this Luke Appling card (#95) would have only been available to collectors in 1936 whereas the Lefty Grove card (#1) shown earlier would have been available in 1934 or 1935. (As you’ll see in the next section, this isn’t 100% true, but we’ll call it “true for now.”)

7. what year are the cards…really?

For cards spanning more than one year, such as the Lefty Grove, a different version of the card was issued each year. The most telltale feature for distinguishing the variations is the line of stats at the bottom of each card back. If you scroll up a bit, you’ll see the Grove card that led off this article featured stats for 1933, hence was part of the 1934 series, whereas this Grove card features stats for 1934, hence was part of the 1935 series.

6. color change

Card backs featured green ink in 1934, blue ink in 1936, and a mix of the tw0—at least for cards 73-86—in 1935. As such, a set collector hoping to collect all possible variations would need three of each card from 73-86: a green 1935, a blue 1935, and a blue 1936.

5. other variations

Two well front variations in the set are the Hank Greenberg and Ernie Lombardi cards, originally misspelled as Hank Greenburg and Earnie Lombardi. Less known are five cards in the set where the player uniform changes due to a transaction between one series and another. I have a more comprehensive article on this subject here that even (sort of) includes a bonus sixth card, but for now here are images of the five.

In other cases, such as with Johnny Vergez, card fronts stay the same but card backs note team changes.

4. more ambitious set planned?

Similar to the 1933 Goudey set, the bottom of each card back advertised a set of “240 major league players.” Despite that, the set included only 108 cards and only 96 different players.

One explanation for the smaller set is that player contracts with Goudey greatly reduced the number of players available. Another explanation is the 1937 bankruptcy of National Chicle. That said, at the established pace of only 32 new players (or 36 new cards) per year, it would have taken a good 7+ years to make it to 240.

3. DOUBLED dozen

While the first 96 cards in the checklist represent 96 distinct players, the final 12 cards in the set are all repeats. For example, Bill Dickey has card 11 (1934, 1935) and card 103 (1936) in the set. A possible explanation for the repeated twelve cards will come at the end of this article.

2. mystery uncut sheet

An uncut sheet of Diamond Stars was discovered in the 1980s by the family member of a former National Chicle printer. While other uncut Diamond Stars sheets are known to exist, what made this one particularly unique was that none of its 12 cards appear anywhere on the Diamond Stars checklist! (See Ryan Cracknell article for more info.)

In addition to blank-backed cards of Hall of Famers Goose Goslin and Lefty Gomez, the sheet also includes a particularly noteworthy card pairing Browns teammates Jim Bottomley and Rogers Hornsby.

Original artwork for the Bottomley/Hornsby card sold at auction in 2012, and good news…the owner is evidently actively entertaining offers!

In addition, the press photo, taken at 1936 Spring Training, that the artwork and card were based on has also made the rounds.

1. connection between uncut sheet and doubled dozen?

Some hobbyists have speculated a connection between the two quirks just discussed. Specifically there is some belief that the cards on the uncut sheet might have been the original plan for cards 97-108, only to be replaced by renumbered repeats of earlier cards in the set. Attached to that belief is the thought that maybe the set’s decision makers disliked the zanier, more geometric backgrounds of the new cards.

I have also seen speculation that the cards on the uncut sheet were to be part of an unrealized 1937 extension to the original set, something that Den’s Collectors Den actually followed through on 1981, complete with backs.

As with most 80+ year old mysteries, any definitive answer is likely lost to history. At least some clues suggesting that the sheet was produced in 1936 are the cards for Jim Bottomley, Roger Cramer, and Gene Moore, all of which show teams they joined in early 1936, and Benny Frey, Rip Collins, Linus Frey, and Lon Warneke, still shown on teams they were no longer with in 1937.

This leads me to believe that neither of the above theories are quite right and that these cards may have simply been “on deck” in late 1936, only to be scrapped for business reasons.

A Ted Williams mini-mystery…solved?

The hobby is full of secrets, mysteries, and a lore often built on hearsay, self-interest, imperfect memory, and conjecture. Of course sometimes there is actual evidence.

Today’s baseball card mystery is the mythical “Ted Signs for 1959” card #68 that has prompted many a collector to declare 79/80 good enough on the 1959 Fleer Ted Williams set.

About the card

Before plunging into the unknown, here is what’s known.

  • The card is significantly rarer than the other 79 cards in the set.
  • The card was pulled from production due to the exclusive contract Topps held with Bucky Harris. (Random aside: The first ever Topps card of Bucky Harris was in 1952 1953 1954 1955 1956 1991!)
  • The card was sent to collectors who contacted Fleer about its absence from the set.
  • And of course the card was and still is frequently counterfeited.

What remains a mystery, or at least lacking consensus, some 60 years later is just how early the card was pulled from production. Specifically, did card 68 ever make it into packs?

Ask the experts

Here is a fairly extensive literature review on the subject. While all sources agree the card was pulled early, none offer any specificity as to just how early “early” really was.

  • According to the Standard Catalog of Vintage Baseball Cards (5th Ed.), “card #68 was withdrawn from the set early in production and is scarce.”
  • The PSA Card Facts for the set note only that “The set’s most scarce and therefore prized piece is Card #68 (“Ted Signs for 1959”), which Fleer withdrew from the collection early in production.”
  • A more detailed PSA write-up on the card itself notes only that the “card was pulled from production early due to an alleged contract dispute with Buck [sic] Harris (the other man depicted on the card), resulting in a higher degree of scarcity.”
  • An article on Cardboard Connection is equally mum: “As a result, the card had to be pulled from production, pushing values up.”
  • A listing at Dean’s cards indicates that “Fleer was forced to remove the #68 card from distribution, due to the legal issues of using Harris’ image without his permission.”
  • An article on the set from Sports Collectors Digest refers to card 68 as “a single card that ended up being pulled off the presses…”. 
  • From Sports Collectors Daily (2012): “During the production process, the card was yanked from the set, creating a rarity that has driven set builders crazy for years.”
  • From Sports Collectors Daily (2016): “Fewer copies exist of that one compared to the other cards in the set because printing of it ceased early when the set was being created. It seems Red Sox GM Bucky Harris was under contract to Topps and thus, couldn’t appear in a Fleer set.  Fleer stopped the presses and pulled #68 but not before some of them had already been printed.”
  • From Tuff Stuff: “Fleer was forced to pull the card early from production.”
  • From Robert Edward Auctions: “This card was withdrawn from production due to legal issues relating to Fleer’s unauthorized use of Harris’ image.”
  • From Heritage Auctions: “[The card] is known for being difficult due to being pulled from circulation since Bucky Harris (who appears on this card) was under contract with Topps.”
  • From Leland’s: “The key to the 1959 Fleer Ted Williams Set. The Ted Signs for 1959 card #68 was pulled from production early making it a bit scarcer than the rest of the set. “
  • From KeyMan Collectibles: “Topps had Bucky Harris under exclusive contract and Fleer had to stop production of card 68 ‘Ted Signs for 1959’ making it a rare short print. Only a few made it out to the public.”

Equivocating on the issue one final time is this Heritage listing for an unopened box, which suggests the card shouldn’t be in the packs but might be.

“We can only speculate if card #68 ‘Jan 23, 1959 – Ted Signs for 1959’ can be found within. History says it should not as the card was not supposed to be sold.”

Heritage Auctions listing #80171

If it were well known or provable that card 68 did in fact make it into at least some packs, I have to imagine the Heritage catalog would have played up that fact in its listing. As it is, my read of the listing is much more a “probably not” than a “maybe.”

Primary sources

Of course, if I learned anything at all from my History teacher, primary sources are always best. As such, let’s see what the Frank H. Fleer Corporation had to say about the card back in August 1959.

A full transcript of the letter is here, but the key lines are these:

Due to the possibility of legal overtones, card #68 of the Ted Williams series was not put on the market for sale.  However, it was made and we have been able to send several to people such as you who have inquired.

So there you have it, right? Straight from Art Wolfe at Fleer, we see that card 68 was not put on the market for sale, i.e., did not make it into packs.

The ultimate primary source

However, where baseball cards are concerned, there are sources even more reliable than the Assistant Promotion Managers of the companies that make them. The best authority on card 68 and the only source truly worthy of the label “primary” is of course card 68 itself!

As luck would have it, I finally picked one of after all these years. I think you’ll agree it’s not a bad looking “2.”

I have to imagine the grade was based more on the card’s reverse, which has a prominent wax stain and a crease that shows up the right lighting makes evident.

Wait a minute! Did somebody say wax stain?!?! Let’s crack that card out of its plastic prison and get a better look.

Sure enough, it’s a wax stain. MYSTERY SOLVED! And lest you think this one card managed to sneak through quality control, here’s another…

And another…

This is also a good spot to thank reader “athomeatfenway” for the tip to check out page 212 of the Ted Williams bio “In Pursuit of Perfection” by Bill Nowlin and Jim Prime. Here, dealer Irv Lerner recounts an incredible story of the 1959 Fleer set along with his recollection of card 68 specifically.

“The initial run did have the number 68s in it. Two or three months afterward, they damaged that part of the plate so they could pull it out.”

Estimating rarity

Incidentally, the wax stains do more than confirm that card 68 made it into wax packs, albeit very early ones. The stains may also provide a rough means of estimating how many of these cards were issued in packs versus through direct correspondence with Fleer.

Imagine that one had access to front/back scans of a large sample of the card, for example, all 1200 or so PSA/SGC graded examples of card 68. Now assume 30 of the cards exhibited wax stains. Since the cards were issued in packs of 6 or 8 cards apiece, we might infer from the 30 stained cards that between 30 x 6 = 180 and 30 x 8 = 240 of the 1200 cards (about 15-20%) came from packs.

Postscript

One of our readers, Derek, provided this information via email.

Most sure these [wax-stained “Ted Signs” cards] came from 8-card packs as those were the first production line. They did not make 8-card packs after they pulled #68. That is another reason they are extremely rare to find.

Bonus info

In doing my research for this piece, I ran across some information outside the main storyline that nonetheless felt worth sharing.

First up, here is a 1958 photograph of Art Wolfe, the Fleer employee who signed letters to collectors in 1959. Source: October 12, 1958, Press and Sun-Bulletin (Binghamton, NY).

By March 1959, Mr. Wolfe had joined Fleer and was in Clearwater, Florida, doing his best to sign ballplayers. Source: March 21, 1959, News Journal (Wilmington, DE).

The following week the Fort Lauderdale News (March 25, 1959) covered the signing of Ted Williams by Fleer as an early sign of the cardboard apocalypse.

And a week after that, the April 2 (subscription required) Press and Sun-Bulletin (Binghamton, NY) covered Mr. Wolfe from Fleer in the middle of his “Just say no to Topps” campaign.

You might be surprised to see all this coverage of the baseball cards wars long before the financial side of the hobby exploded. Still, this stuff really did matter to kids back then! Here is the May 22, 1961, edition of the Miami News.

Fleer took a break from the baseball card business between 1963 and 1968, so it’s not surprising that Art Wolfe would return to his sportscasting roots, eventually becoming sports director for WPEN, known today as “97.5 The Fanatic.” Here is an ad from the July 13, 1965, Philadelphia Daily News.

Following his tenure with WPEN, Wolfe went on to become a sports reporter and anchor for Philadelphia’s KYW. This letter from a young reader in June 1986 stands as proof not only that Philly sports fans are the worst but that they start young! 😄

Clare R. “Art” Wolfe passed away in 2008, having spent most of his life a radio and TV man doing sports. However unappreciated his work may have been by an eighth grade Gregory Popowski, many of us—but not quite all of us—with complete 1959 Fleer Ted Williams sets owe Mr. Wolfe a debt of gratitude for putting those cards in the mail.

Committee note: Tomorrow the SABR Baseball Cards blog will be celebrating 400 posts with a specially themed article revolving around the number 400. Any guesses? Fitting though it might have been, you can probably already rule out Ted Williams!

Cardboard Crosswalk: 1954 Topps and 1954 Bowman

Author’s note: The “Cardboard Crosswalk” series aims to compare and contrast different baseball card sets. Earlier installments can be found here and here. Also note that SABR author Don Zminda compares these same two 1954 sets as part of his “Back Story” series.

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way…”

Charles Dickens, “A Tale of Two Cities”

In short, it was 1954, and Brooklyn and Philadelphia were at war—not for the National League pennant but rather for the hearts and pocket change of the young gum chewers and cardboard flippers who would spend their pennies and nickels with one or the other.

1954 Topps

Brooklyn was the home of Topps, whose third major baseball release featured 250 cards, a terrific new dual-image design, and not one but two cards of the Greatest %&*$@ Hitter Who Ever Lived.

Williams

1954 Bowman

Philadelphia was the home of Bowman, whose penultimate vintage release would feature 224 cards, lackluster player images, and—just barely—a single card of the Greatest %&*$@ Hitter Who Ever Lived.

ted bowman

A war on two fronts

The story of the Bowman Ted Williams card is the story of a second war, the war for player contracts. While the Splendid Splinter had appeared in the 1950 and 1951 Bowman issues and even launched his cardboard career in Warren Bowman’s 1939 “Play Ball” set, history and loyalty didn’t pay the rent.

Image result for 1954 topps baseball cards box

Teddy Ballgame was a Topps man now, and Bowman was forced to replace his card with that of teammate Jimmy Piersall early in the release of its first series. Of course, Bowman had its own stable of enviable exclusives, including Mickey Mantle and some other pretty good players.

bowman exclusives

While it’s the Hall of Famers in the sets who attract most of the collector interest, the competition for players went well beyond the top stars of the game. For this Cardboard Crosswalk, we’ll take a much broader look at who went where and hopefully learn some new things along the way.

Analyzing the sets

Using the term “subjects” generically to include players, managers, coaches, and the O’Brien twins, there were 389 different subjects represented in the two sets. The Venn diagram below shows their distribution. (Figures don’t sum to total cards in set due to two Williams cards in the Topps set and two Piersall cards in the Bowman set.)Venn.JPG

We should be careful not to assume that the 165 “Topps only” subjects and the 140 “Bowman only” subjects were all under exclusive contracts. After all, there certainly would have been marginal players who either company may have omitted by choice. As for the 84 subjects in the “both” section of the diagram, it is probably a fair assumption that Ted Williams was the only one under an exclusive contract.

This next figure shows the distribution of players common to both sets within the Bowman set. Though there are some streaks and gaps evident, the distribution of players toward the beginning of the set largely matches the distribution toward the end. Series One more or less looks like Series Two. (If you are reading on your mobile device, you may need to go landscape mode here.)

BOWMAN DOT GRAPH

When we generate a similar plot for Topps, the result is a very different one, and the differences will form the basis for most of this article.

TOPPS DOT GRAPH.jpg

In the first half of the Topps set, 55 of 125 cards are “Topps only.” In the second half, 110 of the 125 cards— almost 90% of them—are “Topps only.” This is too big a difference to be explained by randomness alone. Absent any deeper look, the data suggest one of two possibilities:

  1. Either the Topps exclusive contracts were secured so late in the process that cards of the players were not ready until Series Three, or
  2. Bowman locked so many players up that Topps was forced to cobble together the second half of its set largely from Bowman’s unwanted scraps

Under scrutiny, the second hypothesis appears to hold up much better than the first. Two quick clues come from an examination of coach cards and rookie cards. A less quick but equally telling clue will come from an examination of star players in the set.

Coaches

While the Bowman set included a limited number of managers, it did not include any cards of coaches. That left coaches ripe for the picking by Topps. In the first half of its set Topps included cards of three coaches: Bob Swift (Tigers), Bob Scheffing (Cubs), and Billy Herman (Dodgers). The second half included 19!

Rookies

As for rookies, the Bowman set featured only 14 of them, leaving a lot of rookies up for grabs. In the first half of its set, Topps included 15 rookies, two of whom were also in the Bowman set: Harvey Kuenn and Dick Cole. Meanwhile, the second half of the Topps set featured 52 rookies, none of whom were in the Bowman set!

Star power, part one

The first and second halves of the Topps set are also quite different when it comes to star power. However, I need to emphasize that I don’t mean Hank Aaron, Ernie Banks, Al Kaline, or other Hall of Famers who are huge today but would have been near unknowns when the 1954 season kicked off. Rather, I’m referring to the players viewed as top stars at the time.

We’ll start with a look at the the Top 10 MVP vote-getters from each league in 1953. I won’t pretend these were THE 20 biggest stars in baseball at the time, but they at least provide us with a reasonable starting point. This Venn diagram shows how these 20 players fell across the sets. Interestingly, NONE of these 20 players were in the second half of the Topps set.

top-20-mvp-1

Star power, part two

A similar analysis can be done using the Top 5 MVP finishers each of the previous five seasons (1949-1953). This smooths out our previous results to be more representative of the era rather than just a single year. It also adds heavyweights like Mickey Mantle, Bob Feller, Ted Williams, and Jackie Robinson who were missing previously. And still, the result is exactly the same!

top-5-mvp-1

The data examined thus far seem to support several conclusions that make perfect sense in light of Topps being newer to the gum card business than Bowman—

  • Bowman had the inside track on the game’s biggest stars.
  • The stars Topps was able to sign were always placed in the first half of the set.
  • The second half of the set was cobbled together mainly with rookies, coaches, end-of-rotation pitchers, bench warmers, and one lone repeat (Ted Williams).

Regarding the second bullet, the front-loading of star players was even more extreme than merely the first half of the set, as illustrated by this plot of the 20 Topps stars from the prior Venn diagrams.

Good players in Topps.JPG

In fact, every one of the star players except Ray Boone (#77), Joe Black (#98), and the second Ted Williams (#250) was placed within the first 50 cards of the set, i.e., Series One.

It’s fair to wonder if the front loading of stars was simply the way things were done back then, but a quick look at the Bowman checklist shows a more even distribution. Among the second half cards in 1954 Bowman are Feller (132), Hodges (138), Newcombe (154), Berra (161), Wynn (164), Snider (170), Ford (177), and Lemon (196).

Twists of fate

When collectors think of the 1954 Topps set today, three cards immediately come to mind: the rookie cards of Hank Aaron, Ernie Banks, and Al Kaline. (Throw in Tommy Lasorda too if you like.) I suspect most collectors simply assume Topps got lucky in choosing these future Hall of Famers for its set while Bowman whiffed on all of them. What I believe the data show is that Topps “lucked into” these HOF rookie cards through the misfortune of having no better players available.

Meanwhile, when collectors think of the 1954 Bowman set, the Mantle card of course comes to mind. However, the key card in the set is definitely the Ted Williams who wasn’t supposed to be there. As such, just as the best cards in the Topps set are the result of Bowman exclusives, the best card in the Bowman set is the result of a Topps exclusive. I’m pretty sure this is the exact opposite of how things are supposed to work.

Epilogue

I thought it would be interesting to track the players mentioned in this post into 1955 to see if there was any discernible shift of talent away from Bowman in what would be the Philly card makers last hurrah.

What follows is an alphabetical listing of the 46 star players mentioned in this post (and Willie Mays as a bonus), along with their Topps vs Bowman status in 1954 and 1955. Players whose status changed from 1954 to 1955 are shown in bold.

1955.JPG

The main takeaway from the chart is that most players stayed put. The greatest movement involved players who had been in both sets in 1954 but went to a single set in 1955. Of the seven instances of this, four went to Bowman and three—counting Ted Williams, who wasn’t supposed to be with Bowman in the first place—went to Topps.

There was also one player, Jim Konstanty, who went from neither set in 1954 to Bowman in 1955. Finally, Eddie Stanky went from Topps-only to both sets. Other than that, the remaining 38 players stayed the same.

While Bowman would ultimately and utterly lose the war with Topps, any advantage in the battle for talent would only come over Bowman’s dead body—just the way Topps wanted it!